LEGAL AID: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

Legal Aid Regulations

LEGAL AID REGULATIONS

 

(under section 32)

 

(13th February, 2015)

 

ARRANGEMENT OF REGULATIONS

 

REGULATION

 

 

 

PART I
Preliminary

 

   1.   Citation

 

   2.   Interpretation

 

PART II
Eligibility for Legal Aid

 

   3.   Eligibility for legal aid

 

   4.   Calculated income

 

   5.   Contribution to costs by legal aid client

 

   6.   Accounts

 

PART III
Application for Legal Aid

 

   7.   Application for legal aid

 

   8.   Application for legal aid by minor

 

   9.   Proof of eligibility for legal aid

 

   10.   Grant of legal aid

 

   11.   Termination of legal aid

 

   12.   Matters covered by legal aid

 

   13.   Matters not covered by legal aid

 

PART IV
Duties of Legal Aid Officers

 

   14.   Assessment of applications

 

   15.   Application for legal aid by two or more applicants

 

   16.   Application for legal aid by opposing parties

 

   17.   Application for legal aid in appeal matters

 

PART V
Legal Practitioners

 

   18.   Engagement of legal practitioners

 

   19.   Undertaking of legal aid instructions

 

   20.   Refusal of acceptance of legal aid instructions

 

   21.   Remuneration of legal practitioners

 

   22.   Merit and progress reports

 

   23.   Notice that legal aid is being rendered

 

   24.   Termination of mandate of legal practitioner

 

PART VI
Miscellaneous Provisions

 

   25.   Recovery of financial benefit

 

 

 

       SCHEDULES

S.I. 11, 2015.

PART I
Preliminary (1-2)

 

1.   Citation

   These Regulations may be cited as the Legal Aid Regulations.

 

2.   Interpretation

   In these Regulations, unless the context otherwise requires "”

   "applicant" means an applicant for legal aid under these Regulations;

   "dependant" means a person who is under the care and support of a legal aid applicant;

   "guardian" means a person legally entitled to act on behalf of a minor or other person lacking legal capacity, and includes a curator bonis and a curator ad litem;

   "judicare" means the legal services rendered by a legal practitioner in private practice pursuant to a legal aid instruction, who has completed his or her pro bono obligations for the calendar year in accordance with the provisions of the Legal Aid Act, and for which the legal practitioner is entitled to account to Legal Aid Botswana in accordance with the format set out in Schedule 7 or Schedule 8 of these Regulations;

   "legal aid centre" means an office operated by Legal Aid Botswana;

   "legal aid client" means a person who has been granted legal aid under these Regulations;

   "Legal Aid Guide" means the policies and procedures which are issued by the Board and used to guide Legal Aid Botswana to achieve its mandate and to supplement these Regulations;

   "legal aid instruction" means an instruction issued by Legal Aid Botswana in terms of regulation 10;

   "means test" means a test set out under Schedule 2 that determines an applicant's eligibility for legal aid;

   "minor" means a person who "”

 

   (a)   in respect of a civil matter, is under the age of majority at the date of application for legal aid; and

 

   (b)   in respect of a criminal matter, is under the age of majority at the date of the commission of the alleged offence;

   "pro bono" means the legal services rendered by a legal practitioner pursuant to a legal aid instruction, for which a legal practitioner is not entitled to receive fees; and

   "pro Deo" means the legal services rendered without charge to an accused person in a criminal trial in which the accused faces the possibility of the death penalty.

PART II
Eligibility for Legal Aid (3-6)

 

3.   Eligibility for legal aid

   (1) An applicant's eligibility for legal aid shall be determined by a legal aid officer by employing the means test set out under Schedule 2.

   (2)    A legal aid officer may, in respect of an application for legal aid, request any document or record as proof of an applicant's calculated income, from any person.

   (3) The means test shall be used to determine the calculated income of an applicant through the following means -

 

   (a)    where the applicant is married, by taking into account the calculated income of the applicant and his or her spouse:

   Provided that "”

 

      (i)   the applicant and his or her spouse are not legally separated, or

 

      (ii)   the spouse of the applicant does not have a contrary interest in the matter in respect of which the application is made;

 

   (b)   where the applicant for legal aid is a dependant or a minor -

 

      (i)   by taking into account the calculated income of both parents of the minor or the guardian of the dependant or minor,

 

      (ii)   by taking into account the calculated income of a minor, if such minor is able to support himself or herself, and

 

      (iii)   by taking into account any maintenance payments received on behalf of a dependant or minor; and

 

   (c)   where the applicant is unmarried or legally separated from his or her spouse or where the spouse of the applicant has a contrary interest in the matter in respect of which the application is made, by taking into account the calculated income of the applicant.

 

4.   Calculated income

   For the purposes of these Regulations, "calculated income" means the income calculated from the net salary, apportioned profit from any business owned by an applicant, interest or income derived from investments, income from any other source, 0.83 % of the applicant's assets, and without limiting the generality of the foregoing includes "”

 

   (a)   rentals received by the applicant or his or her spouse;

 

   (b)   any benefits or privileges received by the applicant or his or her spouse, which include property and money kept in trust, inherited property and money not yet transferred out of an estate;

 

   (c)   immovable property owned by the applicant or his or her spouse and rights in respect of immovable property held by the applicant or his or her spouse; and

 

   (d)   any other income or property that the applicant or his or her spouse may own.

 

5.    Contributions to costs by legal aid client

   (1)    A legal aid client may be required to pay such amount as contribution to costs as may be determined by the Chief Executive Officer.

   (2)    A legal aid client who is required to contribute to costs shall not be granted legal aid unless such applicant has paid the contribution.

 

6.   Accounts

   (1) Legal Aid Botswana shall keep and maintain, at a bank licensed in terms of the Banking Act, a trust account which shall consist of any financial benefit received by a legal aid client as a result of any settlement, judgment or order.

   (2) Legal Aid Botswana shall keep and maintain, at a bank licensed in terms of the Banking Act, a business account which shall consist of all other funds received by Legal Aid Botswana from any source.

   (3)    The Chief Executive Officer shall, with the approval of the Board, pay out of the trust account "”

 

   (a)   any financial benefit to which a legal aid client is entitled; and

 

   (b)   any financial benefit to which Legal Aid Botswana is entitled.

   (4)    The Chief Executive Officer shall, with the approval of the Board, pay out of the business account "”

 

   (a)   such amount as is necessary for the institution of proceedings on behalf of a legal aid client; and

 

   (b)   such other amount that Legal Aid Botswana deems necessary for the purpose of rendering legal aid and other matters incidental thereto.

PART III
Application for Legal Aid (7-13)

 

7.   Application for legal aid

   (1) A person who wishes to apply for legal aid shall make an application in the form set out under Schedule 1.

   (2)    A legal aid officer who receives an application under subregulation (1) may request an applicant to attend an oral interview at a legal aid centre for the purposes of"”

 

   (a)    clarifying any information contained in the application form; or

 

   (b)    obtaining any further information which the legal officer deems relevant in relation to the application.

 

8.   Application for legal aid by minor

   Where an applicant for legal aid is a minor, the parent or guardian of the minor shall "”

 

   (a)   make the application for legal aid on behalf of the minor; and

 

   (b)   pay the contribution to costs under regulation 5.

 

9.   Proof of eligibility for legal aid

   An applicant shall submit such information and documents as may be required by a legal officer to prove the applicant's eligibility for legal aid, together with the application under regulation 7.

 

10.   Grant of legal aid

   (1) A legal aid officer shall, where he or she is satisfied that an applicant provisionally meets the requirements to be granted legal aid, issue a legal aid instruction in favour of the applicant in the form set out under Schedule 3.

   (2) Where an applicant has not been granted legal aid, the legal aid officer shall notify the applicant, in writing, within three days of the decision, and shall furnish the applicant with reasons for the refusal.

   (3)    An applicant may appeal, in writing, to the Chief Executive Officer against the decision of a legal aid officer to refuse to grant legal aid to the applicant, within seven days of the decision of the legal aid officer.

   (4)    The Chief Executive Officer may grant legal aid to any person who does not qualify for legal aid in terms of regulation 3 but who is unable to afford legal representation.

 

11.   Termination of legal aid

   (1) The Chief Executive Officer may, at any time, terminate legal aid granted to a legal aid client, by giving such legal aid client notice in the form set out under Schedule 4.

   (2)    The Chief Executive Officer shall terminate legal aid where "”

 

   (a)   the legal aid client requests that legal aid be terminated;

 

   (b)   the legal aid client has failed to comply with any condition imposed in connection with the grant of legal aid;

 

   (c)   the Chief Executive Officer considers that the legal aid client is no longer eligible to be granted legal aid because the legal aid client no longer meets the requirements for eligibility to be granted legal aid; or

 

   (d)   the Chief Executive Officer, on reasonable grounds, believes that legal aid client is behaving unreasonably in connection with the conduct of proceedings of his or her matter, or that it is unreasonable under the circumstances that the person should continue to receive legal aid.

   (3)    Where a decision has been taken to terminate legal aid, the legal aid client shall, if not satisfied with the decision to terminate legal aid, make representations in writing to the Chief Executive Officer within seven days of the receipt of the notice under subregulation (1), showing cause why legal aid should not be terminated.

   (4)    Where the Chief Executive Officer terminates legal aid in terms of subregulation (2), the legal aid client may appeal against the decision of the Chief Executive Officer, in writing, to the Board, within seven days of the decision of the Chief Executive Officer.

   (5)   The Board shall appoint an attorney to consider and deliberate on appeals made to it under subregulation (4).

   (6)    Where legal aid is terminated under subregulation (1), the legal aid client shall, from the date of receipt of the notice under subregulation (1), cease to be granted any assistance in the matter in respect of which legal aid was granted.

 

12.   Matters covered by legal aid

   (1) An applicant shall be granted legal aid if the matter in respect of which the applicant seeks legal aid is a civil matter, including a non-litigious civil matter or a matter that can be resolved through alternative dispute resolution.

   (2)    Notwithstanding subregulation (1), an applicant may be granted legal aid in a criminal matter where "”

 

   (a)   the matter is to be heard in the High Court or Court of Appeal and pro Deo assistance is not available to the applicant on such matter; or

 

   (b)   the applicant is a minor and the prescribed penalty for the offence allegedly committed by the minor is imprisonment.

 

13.   Matters not covered by legal aid

   An applicant shall not be granted legal aid where "”

 

   (a)   the matter in respect of which legal aid is being applied is not justiciable before any court in Botswana;

 

   (b)   the matter is within the jurisdiction of the Small Claims Court;

 

   (c)   in the opinion of the Chief Executive Officer, the applicant has no reasonable prospects of success in the matter in respect of which legal aid is being applied for; or

 

   (d)   the Legal Aid Guide excludes the legal aid for such matters.

PART IV
Duties of Legal Aid Officers (14-17)

 

14.   Assessment of applications

   (1) A legal aid officer shall assess all applications for legal aid and determine whether an applicant is eligible for legal aid in terms of regulation 3.

   (2)    A legal aid officer shall refer the matter for which an applicant provisionally qualified for legal aid to a legal practitioner and the legal practitioner shall prepare a merit report in terms of regulation 22, for submission to the Chief Executive Officer.

   (3) The Chief Executive shall, in writing, after consideration of the merit report and whether a matter has reasonable prospects of success, inform the legal practitioner to proceed with the matter.

 

15.   Application for legal aid by two or more applicants

   (1) Where more than one person applies for legal aid on the same matter, a legal aid officer shall make an inquiry as to whether there is a conflict of interest between the applicants.

   (2)    Where there is a conflict of interest between the applicants under subregulation (1), the legal aid officer shall request each of the applicants to make an application for legal aid in terms of regulation 7, and assign a different legal practitioner to each of the applicants, to handle the matter.

   (3)    Where there is no conflict between applicants applying for legal aid for the same matter under subregulation (1), the legal aid officer shall assign the matter to a single legal practitioner.

 

16.   Application for legal aid by opposing parties

   A legal aid officer shall not grant legal aid to an applicant who is an opposing party to a person who has been granted legal aid, except with the consent, in writing, of the Chief Executive Officer.

 

17.   Application for legal aid in appeal matters

   The Chief Executive Officer shall, after consideration of a merit report submitted to him or her in terms of regulation 14, grant legal aid to an applicant in an appeal matter where "”

 

   (a)   there are reasonable prospects of the appeal succeeding at the Court of Appeal; and

 

   (b)   the costs of appealing the matter do not exceed the potential financial benefit to the applicant.

PART V
Legal Practitioners (18-24)

 

18.   Engagement of legal practitioners

   (1) A legal practitioner who wishes to undertake legal aid instructions shall make an application in the form set out under Schedule 5.

   (2)    The Chief Executive Officer shall keep a register of legal practitioners who are engaged to undertake legal aid instructions in the form set out under Schedule 6.

   (3)    Notwithstanding the provisions of subregulation (1), the Chief Executive Officer may, in writing, request a legal practitioner to undertake legal aid instructions.

   (4)    A legal practitioner shall, in writing, inform the Chief Executive Officer of his or her acceptance or refusal to undertake legal aid instructions.

 

19.   Undertaking of legal aid instructions

   (1) A legal aid officer shall, in writing, inform a legal practitioner that his or her application to undertake legal aid instructions has been granted.

   (2)    A legal practitioner who undertakes legal aid instructions shall evaluate the instructions and prepare a merit report in terms of regulation 22 and submit such report to the Chief Executive Officer.

   (3) A legal practitioner shall not exceed the scope of legal aid instructions issued to him or her, without the prior written consent of the Chief Executive Officer.

   (4)    A legal practitioner who contravenes the provisions of subregulation (3) shall bear any costs that may arise due to the legal practitioner exceeding the scope of legal aid instructions issued to him or her.

 

20.   Refusal of acceptance of legal aid instructions

   (1) A legal practitioner may refuse to accept legal aid instructions where the legal practitioner has reason to believe that "”

 

   (a)   the applicant's matter is trivial or vexatious;

 

   (b)   the circumstances are such that no real or substantial benefit shall be attained by rendering legal aid; or

 

   (c)   the costs involving in pursuing of the matter are not proportional to the relief sought.

   (2) Where a legal practitioner refuses to accept legal aid instructions, the legal practitioner shall, in writing, inform the Chief Executive Officer of such refusal, giving reasons for the refusal.

 

21.   Remuneration of legal practitioners

   (1) A legal practitioner who undertakes legal aid instructions shall be paid such fees as may be determined by the Board and published in the legal aid guide.

   (2)    A legal practitioner shall not receive any money directly from a legal aid client.

   (3)    A legal practitioner who contravenes the provisions of subregulation (2), commits an offence and is liable to a fine not exceeding P5 000, and shall have his or her name removed from the register of legal practitioners kept under regulation 18 (2).

 

22.   Merit and progress report

   (1) A legal practitioner shall, within three months of a receiving a legal aid instruction, prepare a merit report detailing "”

 

   (a)   whether the applicant is plaintiff or applicant or defendant or respondent in the matter;

 

   (b)   the court or other forum where the matter is to be heard;

 

   (c)   the nature and amount of the claim;

 

   (d)   the factual background to the matter;

 

   (e)    details of the merits of the matter and a detailed explanation of the success, which may be expected;

 

   (f)   the availability of evidence and witnesses;

 

   (g)    the need for expert witnesses and the expected costs relating to their evidence and testimony and that of other witnesses;

 

   (h)    the nature and effect of any prior orders in the matter; and

 

   (i)   the total expected financial involvement of Legal Aid Botswana.

   (2)    A legal practitioner shall prepare a progress report on a legal aid matter that the legal practitioner is handling every three months, and shall submit such report to the Chief Executive Officer.

   (3)    A progress report referred to in subregulation (2) shall contain information "”

 

   (a)    relevant to the progress of the matter;

 

   (b)    on the complexity of the matter;

 

   (c)    on the expected date for hearing and the anticipated duration;

 

   (d)    on the possibility of settlement of all or part of the dispute; and

 

   (e)    on the stages to which the matter has progressed as at the date of application and the financial implications of such proceedings.

   (4)    The merit report and progress report referred to in subregulations (1) and (2) shall, with respect to civil matters be in the form set out under Schedule 7 and in respect of criminal matter, be in the form set out under Schedule 8.

 

23.   Notice that legal aid is being rendered

   (1) A legal practitioner shall notify an opposing party in a matter in which he or she is representing a legal aid client, within three days of accepting legal aid instructions.

   (2) Where a legal practitioner learns that the opposing party in the matter in which he or she is representing a legal aid client is a legal aid client, the legal practitioner shall take no further action on the matter and shall immediately inform the Chief Executive Officer of this circumstance.

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