This setback stems from their failure to disclose ownership of companies during the application process for assistance from Legal Aid South Africa (LASA) in which they exceeded the income means test by R8 976 79.
The case underlined the importance of full disclosure when applying for government legal aid, as income and asset assessments are crucial in determining eligibility.
LASA declined the husband’s application due to his non-disclosure of the transfer of a property to his daughter and failure to disclose that he and his wife share co-ownership in a property with siblings.
LASA’s mandates require applicants to demonstrate genuine financial need, a standard the couple evidently did not meet due to their undisclosed company ownership in which they had also exceeded the means test by R665 765.06 on the assets part which are registered in their names.
The couple, who claimed to be indigent, had on three occasions applied for legal aid assistance but on all three applications, a Lexis Windeed search discovered that they own companies and properties.
Their second attempt to get legal aid had however been successful but was soon after revoked following an investigation.
The judgment by Judge Johanna Mthimunye, said the decision to revoke legal aid was rational and lawful.
The judgment read: “On 22 August 2023, the (wife) attended (LASA’s) Athlone legal aid office where she advised (LASA) of an alleged alteration of her financial circumstances. She stated that she had lost her job and as a result no longer had an income. Consequently, a revised application for legal aid and means test was taken, resulting in both applicants qualifying for legal aid since they no longer had an income.
“At the time of granting legal aid to the applicants, no investigation of the applicants’ financial circumstances was done by the respondent. The respondent subsequently conducted an investigation into the claims that the applicants were indigent and possessed no income or any assets and discovered that the claims that were made by the applicants regarding their financial circumstances were inaccurate, as it transpired that the applicants were not only not indigent, but owned properties and companies. Consequently, the respondent revoked the legal aid.”
The couple’s review application to the Western Cape High Court was for LASA to exclusively reconsider their financial means by excluding a designated asset when conducting the means test. The couple averred that they were “prejudiced by the erroneous consideration of (LASA), in considering the property belonging to their daughter as part of their assets”.
The couple submitted that they “have no rights or obligations over the (business) property” despite the husband having special power of attorney and manages the affairs of the company.
“It further transpired that the first applicant owned a one-third interest in an immovable property belonging to his siblings to the value of R611 666. Furthermore, the applicants also had a company property, which were under their control, which they had transferred to their daughter, with municipal value of R1 850 000.
“The assertion by the applicants that their daughter is the owner of the company is not substantiated, particularly in light of the first applicant’s own admission…regarding their management of the company’s affairs. Furthermore, regulation 28.3 of the Legal Aid Manual is clear that any assets controlled either directly or indirectly by a legal aid applicant or his spouse or dependent or sibling is deemed to be owned by the legal aid applicant,” the judgment read.
Judge Mthimunye said: “From the facts of the present matter there is no evidence to the contrary produced by the applicants that they are not owners of companies and properties and as such can afford to pay for their own legal representation.”