THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 363 / 09

LEGAL AID BOARD
Appellant

and

THE STATE
First Respondent
GARY PATRICK PORRITT
Second Respondent
SUSAN HILARY BENNETT
Third Respondent
____________________________________________________________

Neutral citation:

Legal Aid Board v The State

(363/09) [2010] ZASCA 112 (22 September 2010)

BENCH:

MPATI P, LEWIS, PONNAN, BOSIELO and TSHIQI JJA
HEARD:

16 AUGUST 2010
DELIVERED:
22 SEPTEMBER 2010

SUMMARY: Section 35(3)(g) of the Constitution - right to legal representation at
State expense. Legal Aid Act 22 of 1969 – s 3B – court does not have power to
order the Legal Aid Board to provide accused persons with two advocates each in
private practice to be remunerated in accordance with the maximum rates
permitted by the legal aid tariff.

____________________________________________________________

_______________________________________________________________________

ORDER
_______________________________________________________________________

On appeal from:  South Gauteng High Court (Johannesburg) (Borchers J sitting as court
of first instance).

1. The appeal succeeds.
2. The order of the court below that the accused are entitled and the Legal Aid Board
is obliged to provide them with legal representation at State expense is set aside.

_______________________________________________________________________

JUDGMENT
_______________________________________________________________________

PONNAN JA  ( MPATI P, LEWIS, PONNAN, BOSIELO and TSHIQI JJA concurring):

[1] It is hardly necessary to dwell on the advantages to an accused person of legal
representation. They are well documented and recognised. I assume of course that the
representation is competent. Trial judges have on occasion had the experience of a
litigant in person who seems able to conduct proceedings with skill and sometimes to a
successful conclusion. But that is usually the exception. Any litigant in person is generally
at a disadvantage more especially one facing a serious criminal charge. The adversarial
system that prevails in this country assumes a forensic contest that is more or less
evenly matched. The sad reality is that all too frequently it is not. An unrepresented
accused is usually disadvantaged, first, by a lack of legal knowledge and skill, and,
second, because he or she suffers the disability of not being able to dispassionately
assess and present his or her case as well as trained counsel for the State can.

[2] It cannot therefore be doubted that a criminal trial is most fairly conducted when
both prosecution and defence are represented by competent counsel. The entitlement of

a person charged to be represented, if necessary, by a legal practitioner at public
expense is an important safeguard of fairness in the administration of criminal justice. An
entitlement to legal aid is a measure which reduces the possibility of an injustice and
enhances the prospects of a fair trial. Our Constitution recognises both the practical and
logical nexus between legal representation and a fair trial. Thus section 35(3) of our
Constitution guarantees to every accused person his or her right to a fair trial, which
includes the right in subsection (g) to have a legal practitioner assigned, if substantial
injustice would otherwise result.

[3] In S v Vermaas; S v Du Plessis1 Didcott J lamented the fact that insufficient had
been done by the State to give meaningful content to the constitutionally entrenched right
to legal representation. Whilst accepting that there were multifarious demands on the
public purse, he stated that ‘the Constitution does not envisage, and it will surely not
brook, an undue delay in the fulfilment of any promise made by it about a fundamental
right’. Against that backdrop s 3 of the Legal Aid Act2 came to be amended3 by the
insertion of the following italicised phrase: '[t]he objects of the board shall be to render or
make available legal aid to indigent persons and to provide legal representation at State
expense as contemplated in the Constitution . . .'. The board to which reference is made
is the appellant, the Legal Aid Board of South Africa (the LAB), an independent body
corporate, established by s 2 of the Act.

[4] The annual parliamentary grant of the LAB for the 2007/8 financial year was in the
region of R581m. During that period it employed 2 193 members of staff and finalised
approximately 400 000 cases. In essence the LAB uses public funds to provide legal
representation to indigent persons on a fairly large scale across the country. Given its
fiscal constraints it is obviously unable to provide a full suite of legal aid services to those
genuinely in need.  It does, on occasion, instruct legal practitioners in private practice to

1 1995 (3) SA 292 (CC) para 16.
2 Act 22 of 1969.
3 Section 3 was amended by the Legal Aid Amendment Act 20 of 1996, which came into effect on 1 May
2002.

defend accused persons. When it does those practitioners are remunerated in
accordance with tariffs prescribed by its Legal Aid Guide.

[5] The second respondent, Gary Patrick Porritt (Porritt) and the third respondent,
Susan Hilary Bennett (Bennett) (the respondents) have been indicted together with
various companies that they represent on a total of 3 160 fraud charges in the South
Gauteng High Court. Both are on bail. Porritt’s bail was fixed at R1m, an amount
subsequently reduced, on application by him, to R800 000. He states that his bail had
been paid by a trust of which he is a beneficiary and that he is currently indebted to it in
that sum. Bennett's bail of R100 000 was secured by way of a mortgage bond in favour
of the State over a property in Knysna which is registered in the name of a company of
which she is the sole director.

[6] Although the respondents first appeared before Borchers J during January 2006,
the criminal trial proper is yet to get under way. When they initially appeared in the high
court they were legally represented by counsel and an attorney of their choosing. Since
May 2007 they have been without representation. Until then, they spent some R23m on
various preliminary legal skirmishes. That, according to Porritt, was funded by certain
trusts of which, as he puts it, he was 'a discretionary beneficiary'. Those trusts, so he
says, have resolved to withdraw their financial support and to distance themselves from
the criminal trial.

[7] The respondents thus made application to the LAB for legal representation at
State expense. Each was required to complete a standard form briefly setting out their
financial position. They declined to do so. Their applications were accordingly refused.
Although it initially did so on some other erroneous basis, it is hard to fault the LAB's
ultimate conclusion that each had not satisfied it that they were indigent and therefore did
indeed qualify for legal representation at State expense.

[8] The respondents, having been advised that they had two rights of internal appeal
to higher echelons within the LAB, exercised the first to the Regional Operations

Executive. Unsurprisingly, given their failure to furnish the required information, it failed.
Each was nonetheless advised by the Regional Operations Executive of a further right of
appeal to the National Office Executive. And informed:
'Should you wish to appeal my decision, please provide the following:
A signed means test
Details of all your:-

Assets

Income

Liabilities

Expenditure
Your personal circumstances – e.g. where do you reside, what is the value of your right of
occupation, who provides for your food, clothing, health etc, needs and at what cost.
Your background and education.
Your ability, if any, to contribute to the costs of your defence.
In the light of the statement "I am a beneficiary of certain trusts with substantial assets in SA",
details of all trusts of which you, your spouse or your children are beneficiaries, the trust deed and
financial statements as well as particulars of the assets of the trust.
Details of any property owned by you, your spouse or your children or any trusts of which any of
you are beneficiaries and the value of the said property.'
The response of the respondents was to direct a request for information to the LAB
ostensibly on the basis that it was required to prosecute their further appeal. When the
matter came before Borchers J on 24 October 2007 they were informed by an official of
the LAB that they were not precluded, even at that stage, from supplying the information
sought and that by doing so the prospects of their appeal succeeding would be
enhanced. Once again they declined. Instead, contending that not all of the information
sought by them had been supplied by the LAB, they launched an application to compel
the LAB to supply the information sought. That application was dismissed by Sapire AJ.

[9] In September 2008, no further progress having been made, Borchers J decided to
proceed in terms of s 3B of the Act. Section 3B provides:
'(1)
Before a court in criminal proceedings directs that a person be provided with legal representation
at State expense the court shall
(a)

(i)
the personal circumstances of the person concerned;

(ii)
the nature and gravity of the charge on which the person is to be tried or of which
he or she has been convicted, as the case may be;
(iii)
whether any other legal representation at State expense is available or has been
provided; and
(iv)
any other factor which in the opinion of the court should be taken into account;
and
(b)
refer the matter for evaluation and report by the board.
(2)
(a)
If a court refers a matter under subsection (1)(b), the board shall, subject to the

provisions of the Legal Aid Guide, evaluate and report on the matter.
(b)
The report in question shall be in writing and be submitted to the registrar or the clerk of
the court, as the case may be, who shall make a copy thereof available to the court and
the person concerned.
(c)

(i)
a
recommendation
whether
the
person
concerned
qualifies
for
legal
representation;
(ii)
particulars relating to the factors referred to in subsection (1)(a)(i) and (iii); and
(iii)
any other factor which in the opinion of the board should be taken into account.'

[10] The learned judge requested the LAB to furnish her with a report contemplated by
s 3B(1)(b). In that report the LAB asserted that accused persons who apply for legal aid
are subject to a means test, which is calculated in accordance with a formula prescribed
by its Legal Aid Guide. Applying that formula, according to the LAB, an accused person
with a calculated income of less than R2 000.00 per month qualified for legal aid. The
LAB contended in its report that:
'[Porritt and Bennett] have a right to a further internal appeal against the decision to refuse legal aid. [They]
have not yet exercised such right, but if [they] continue to refuse to provide the information and
documentation requested by the LAB, the result of any further appeal is likely to be unfavourable to [them].'
And submitted that:
'[I]t is obliged to implement the provisions of the Legal Aid Guide, which is a document approved by
Parliament. For the reasons set out above and due to the continued refusal by the accused to provide the
information requested, the LAB has no choice but to refuse legal aid’.

'Applicants bear the onus of proving, on a balance of probabilities, that they qualify for legal representation
at State expense. To do this, applicants, must be required to provide all necessary information and
documentation and answer all relevant questions as to their financial circumstances.'

[11] As Borchers J put it 'the accused raised energetic objections to the court
proceeding with the enquiry'. Undaunted, she proceeded. The respondents launched a
wide-ranging attack on the LAB’s report, submitting in essence that it did not 'constitute a
proper report in terms of s 3B of the Act'. They accordingly requested the court to order
the LAB to furnish a proper report in compliance with the Act. The learned judge declined
to do so. Instead, she directed them to answer a number of questions appertaining to
their personal circumstances. That they eventually did.

[12] In her view two issues arose for consideration: first, whether the court should
order the LAB to provide the respondents with legal representation at State expense, and
if so, second, the scope and extent of such representation.

[13] In answering the first of the two questions in favour of the respondents, Borchers J
stated:
‘On the first issue, I accordingly find that legal representation in this matter is necessary; further that the
accused have shown themselves to be indigent as defined; further, that their children who are beneficiaries
of possibly very wealthy trusts cannot be forced to fund their parents' legal representation and, finally, that
the Board should be directed to do so.'
On the second issue, the learned judge concluded:
'I order that the Legal Aid board provide two legal practitioners to represent each of the accused in this trial.
Such practitioners are to be remunerated at the maximum fee permitted by the Legal Aid Guide.'
On 27 March 2009 Borchers J clarified that all four practitioners to be appointed by the
LAB to represent the respondents were to be advocates in private practice and not
employees of the LAB.

[14] The recorded transcript of the proceedings during the application for leave to
appeal reads:
‘COURT:
Can I ask this before you go any further, this seems to be your central issue and why you
are submitting that your appeal has strength or prospects of success, is there anything further, are you also
asking for leave on the grounds that I wrongly found that the accused were indigent and needing of legal
aid?

COUNSEL:4
No M'Lady, the papers as we read them, we would with respect not take issue. There has
not been any evidence to suggest otherwise.
COURT:
Yes, the accused have made an assertion, and I do not think anything to the contrary was
proved.
COUNSEL:
No
COURT:
Very well.'

[15] Borchers J in her ruling on the application for leave to appeal stated: ‘This is the
only ground of appeal on which leave is sought. [Counsel] declined to advance the other
grounds set out in the notice of appeal, so they fall away.’ She then proceeded to grant
an order in these terms: ‘Leave is granted to the [LAB] to appeal to the Supreme Court of
Appeal against the order of … and insofar that it is necessary, against the so-called
second order’. That notwithstanding, the LAB in its notice of appeal filed with this Court
asserted as its first ground of appeal:
'In the circumstances of the present case, no legal representation ought to have been provided to the
second and third respondents at state expense as there was insufficient evidence to demonstrate that they
were unable to fund their own representation.'
Consistent with that approach, counsel for the LAB submitted in its heads of argument
that there were two grounds of appeal. First, that the learned judge should have found
that Bennett and Porritt were not entitled to legal representation at State expense. And,
second, that the order of the learned judge encroached upon territory reserved for
another arm of State and thus offended against the separation of powers doctrine.

[16] Neither Bennett nor Porritt initially participated in the appeal. The first respondent,
the State, frustrated at the lack of progress in the trial, did. Its counsel contended that
after the abandonment in the court below of the first ground of appeal, this court had no
jurisdiction to hear and adjudicate upon it. But as this court has previously held, it will not
necessarily consider itself bound by the grounds upon which leave has been granted. If
this court is of the view that in a ground of appeal not covered by the terms of the leave
granted there is sufficient merit to warrant consideration of it, it will allow such ground to
be argued.5

4 A reference to Mr Budlender’s predecessor.
5 S v Safatsa & others 1988 (1) SA 868 (A) at 877A-D; Douglas v Douglas [1996] 2 All SA 1 at 8j-9a.

[17] This does not mean that the court will always be free to enlarge the issues
whether mero motu or at the request of the parties.6 The question of prejudice may arise,
as indeed it first did in relation to Porritt and Bennett in this case. They had intimated at
the outset that they were willing to abide the decision of this court. When they learned
that counsel for the LAB was seeking to resuscitate the first ground they communicated
their displeasure in a letter addressed to the Registrar of this court. In it, they stated:
'As conveyed in the letter of . . ., we would abide the decision of the Court if the sole issue to be decided
was whether the lower court entered the domain of the executive and offended the doctrine of the
separation of powers. This was the only issue on which leave to appeal was granted by the lower court.
However, in the event that the applicant is permitted to argue for a reversal of the lower court's finding that
we were entitled to be provided with legal representation at state expense – which issue was abandoned
by the applicant without being argued at the hearing of its application for leave to appeal before the lower
court – then we would require to oppose this aspect and we would have to seek counsel to represent us on
this issue on a pro bono basis.'

[18] As a consequence when the matter first served before us on 13 May 2010 it had
to be postponed at the instance of the LAB. It was thereafter re-enrolled for hearing on
16 August 2010. In the intervening period the LAB launched a formal application on
notice to the other parties for condonation and for this court to grant it leave to appeal on
wider grounds than those allowed by Borchers J. In an affidavit filed in support of that
application, the LAB's then attorney states:
'With respect, it appears that there may have been a misunderstanding, by [Counsel] regarding this point. I
had no authority, nor did he have instructions, to abandon the point. I had in fact been specifically
instructed by the chief executive officer of the appellant to persist with it. As can be seen above, the point
was and remains of great importance to the appellant and it was not an issue which the appellant was
prepared to abandon at all'.

[19] In my view, the postponement and subsequent application satisfactorily addresses
any prejudice (actual or potential) that the other parties may assert. The question that the
LAB now seeks to raise was actually part and parcel of its case before Borchers J and is
basic to the adjudication of the appeal. That being so, it appears to me fitting to broaden

6 Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A) at 24C-D.

the scope of the appeal.7 To do otherwise would be to ignore a fundamental issue that
was fully ventilated in the court below. That may well constitute not just a fruitless
exercise but also one divorced from reality.

[20] If the contention that the LAB now seeks to revive is good and the other for which
leave has already been granted, bad, this Court in refusing to investigate it, would be
upholding a wrong order. That, this court should be slow to countenance. Moreover, such
an approach may well run counter to s 173 of the Constitution, which provides:
'The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect
and regulate their own process, and to develop the common law, taking into account the interests of
justice.'
As it was put by the Constitutional Court in SABC Ltd v National Director of Public
Prosecutions & others:8
'This is an important provision which recognises both the power of Courts to protect and regulate their own
process as well as their power to develop the common law. . . . The power recognised in s 173 is a key tool
for Courts to ensure their own independence and impartiality. It recognises that Courts have the inherent
power to regulate and protect their own process. A primary purpose for the exercise of that power must be
to ensure that proceedings before Courts are fair. It is therefore fitting that the only qualification on the
exercise of that power contained in s 173 is that Courts in exercising this power must take into account the
interests of justice.'

[21] It is noteworthy that our courts were indeed endowed with such power even in our
pre-constitutional era.9 According to the Constitutional Court:10
‘The task of an appeal Court in determining its own proceedings is an important one. Its primary
constitutional responsibility is to ensure that the proceedings before it are fair and it must give content to
that obligation. This obligation has always been part of our law and is now constitutionally enshrined as a
fundamental right in s 35(3) of the Constitution. The task of ensuring that the proceedings are fair will often
require consideration of a range of principled and practical factors, some of which may pull in different
directions.’

7 Van Jaarsveld v Bridges (344/09) [2010] ZASCA 76 (27 May 2010).
8 2007 (1) SA 523 (CC) para 35 and 36.
9 In Universal City Studios Inc & others v Network Video (Pty) Ltd 1986 (2) SA 734 (A) at 754G, Corbett JA
put it thus: 'There is no doubt the Supreme Court possesses an inherent reservoir of power to regulate its
procedures in the interests of the proper administration of justice ....'; see also Manong v Minister of Public
Works 2010 (2) SA 167 (SCA).
10 SABC Ltd para 21.

But it did remind us that ‘it is a power which has to be exercised with caution’11and
sparingly after taking into account the interests of justice in a manner consistent with the
Constitution.12

[22] In all of the circumstances it seems necessary for a proper adjudication of the
matter to allow the LAB to revive its contention based on the first ground. I accordingly
turn to that aspect.

[23] Section 3B of the Act must, according to Navsa JA, be seen:
'[A]gainst the [LAB's] objects, as set out in section 3 of the Act, namely, to make available legal aid at State
expense to those who qualify for it and to ensure that the guarantee of legal representation at State
expense, if substantial injustice would otherwise result, as an integral part of the right to fair trial as
contemplated in s 35(3)(g) of the Constitution, is met.’13

[24] It is so that past practice in this country has forced accused persons on occasion
to trial notwithstanding that, by reason of lack of means, they were unable to obtain legal
advice or representation. That past practice and the approach to the poor and
disadvantaged that it reflects is now considered to be inconsistent with the standards that
we as a nation have set for ourselves. Given that history, it may be all too easy for some
of us to comprehend the right to legal representation in more absolute terms than that
given to us by our Constitution. There are two component parts to that basic right: First,
the right to choose counsel and to be represented by that person (s 35(3)(f)); and,
second, the right to have a legal representative assigned by the State and at State
expense if substantial injustice would otherwise result (s 35 (3)(g)).

[25] In Vermaas Didcott J had occasion to consider s 25(3)(e)14 of our Interim
Constitution, the predecessor to the section here under consideration. He had this to say
(para 15):

11 S v Pennington & another 1997 (4) SA 1076 (CC).
12 Parbhoo & others v Getz NO &  another 1997 (4) SA 1095 (CC).
13 Legal Aid Board v Pretorius [2007] 1 All SA 458 (SCA) para 16.
14 The section reads: ‘every accused person shall have the right to a fair trial, which shall include to be
represented by a legal practitioner of his or her choice or, where substantial injustice would otherwise

‘the effect of the disjunctive 'or', appearing in the section immediately before the reference to the prospect
of 'substantial injustice', is to differentiate clearly between two situations, the first where the accused
person makes his or her own arrangements for the representation that must be allowed, the second in
which the assistance of the State becomes imperative, and to cater for the personal choice of a lawyer in
the first one alone.’

[26] But as Harms JA emphasised in S v Halgryn:15 ‘Although the right to choose a
legal representative is a fundamental one and one to be zealously protected by the
courts, it is not an absolute right and is subject to reasonable limitations.’ Harms JA
found support for his view in the Canadian case of R v Speid.16 Speid held that the court
must ‘balance the individual’s right to select counsel of his own choice, public policy and
the public interest in the administration of justice and the basic principles of fundamental
fairness’. A view that has since been endorsed by the Constitutional Court in Fraser v
ABSA Bank17 in these terms: ‘. . . the right embodied in s 35(3)(f) of the Constitution does
not mean that an accused is entitled to the legal services of any counsel he or she
chooses, regardless of his or her financial situation. Financial constraints necessarily
play a role and competing needs and demands have to be balanced.’

[27] It bears noting that the Canadian Charter, like our own, does not entrench a
general right to counsel at public expense irrespective of the circumstances of the
particular case. R v Rowbotham18 pertinently drew the following distinction: 'The right to
retain counsel, constitutionally secured by section 10(b) of the Charter, and the right to
have counsel provided at the expense of the State are not the same thing.’ Our
Constitution also makes plain that the right to assigned counsel, unlike the right to
chosen counsel, is subject to the important qualifier: ‘if substantial injustice would
otherwise result’. Whether substantial injustice would otherwise result is a matter pre-
eminently for the decision of the judge trying the case, a Judge, according to Didcott J:19

result, to be provided with legal representation at state expense, and to be informed of these rights.'
15 2002 (2) SACR 211 (SCA) para 11.
16 (1983) 7 CRR 39 at 41.
17 2007 (3) SA 484 (CC) para 68.
18 (1988) 41 CCC (3d) 11.
19 Vermaas para15.

‘much better placed than we are by and large to appraise, usually in advance, its ramifications and their
complexity or simplicity, the accused person's aptitude or ineptitude to fend for himself or herself in a
matter of those dimensions, how grave the consequences of a conviction may look, and any other factor
that needs to be evaluated in the determination of the likelihood or unlikelihood that, if the trial were to
proceed without a lawyer for the defence, the result would be 'substantial injustice.'

[28] Canadian cases have generally held that where an accused has been denied
legal aid, the trial judge may direct the appointment of counsel if satisfied that the
accused is impecunious and that the nature of the case is such that the accused cannot
receive a fair trial without representation.20 The right to counsel is thus inextricably linked
to the facts of the case. The position in Australia has been articulated as follows by
Mason CJ and McHugh J in Dietrich v R:21
'Despite the absence in Australia of any formally entrenched declaration of rights similar to the Canadian
Charter, the approach of Australian courts resembles the Canadian approach in rejecting the proposition
that an indigent accused has an absolute right to the provision of counsel at public expense.’
Later the judgment proceeds:
'It should be accepted that Australian law does not recognise that an indigent accused on trial for a serious
criminal offence has a right to the provision of counsel at public expense. Instead, Australian law
acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of
the particular case, lack of representation may mean that an accused is unable to receive, or did not
receive, a fair trial. Such a finding is however, inextricably linked to the facts of the case and the
background of the accused.'
The approach in those two countries is not dissimilar to our own. That emerges from
Fraser,22 where the Constitutional Court held:
‘An accused also has the right to have a legal practitioner assigned at the State’s expense in terms of s
35(3)(g) where substantial injustice would otherwise result . . . The extent to which this might be
appropriate or sufficient in a particular case will depend on all relevant prevailing factors, including the
complexity and seriousness of the criminal charges.’

[29] What all of this establishes, in my view, is that a court undertaking the enquiry in
question must ask itself two questions: first, would substantial injustice ensue were the

20 R v Munroe 57 CCC (3d) 421; R v Gauthier 2004 NLSCTD 137.
21 64 A Crim R 176 ; 109 ALR 385.
22 Para 68.

accused to proceed to trial without representation, and if so, second, could the costs of
that representation be borne by the accused from his or her own resources?

[30] In this case the first question proved uncontroversial. The criminal trial, if and
when it eventually starts, is likely to be a complex one. The indictment runs to over 1 400
pages. In excess of 3000 witnesses are expected to testify. It is anticipated that
approximately one million pages of documentary material will have to be read in
preparation for trial. All told the trial is expected to last in the region of three years.
Against that backdrop it can hardly be in dispute that Bennett and Porritt will require legal
representation and that the trial will be rendered unfair were they to appear in person.
The second question proved more troublesome. The learned judge, to her credit, was
concerned at the delays that had plagued the trial since inception and motivated by a
desire that the trial commence and proceed to conclusion with alacrity. She thus felt
compelled to intervene. But as Borchers J herself observed ‘neither [respondent]
presents the picture of the usual indigent person. They are both well-groomed, use
cellphones and have the means to travel by air. [Porritt] wished to travel to the United
States in 2007: [Bennett] did in fact travel to the United Kingdom in 2008. Both live in
desirable locations. . . .' The learned judge therefore entertained some apprehension as
to whether either of the respondents were indeed indigent and thus qualified for legal
representation at state expense. As I have already stated she endeavoured to address
that by requiring them to answer a range of questions. Whether the responses elicited
ought to have done sufficient to quell her apprehension is an aspect to which I now turn.

[31] Each of the respondents was asked to furnish details pertaining to:
(a)
Their directorships of and shareholdings in companies and membership interests
in closed corporations:
They responded in identical fashion:
‘Details of directorships/memberships to be provided by Legal Aid Board’ and ‘no shares
are held in any company which are of any material value’.
(b)
Income from any source whatever:
Both answered 'nil'.

(c)
Funding of normal living expenses:
Porritt asserts that he is dependent on his wife and children for his normal living
expenses. He lives in a house owned by his son in Pietermaritzburg for which he pays no
rent. He indicated that a cell phone used by him is paid for by the Snowdon Farm Trust to
enable him to provide technical advice and assistance to its farming operations. Bennet
lives at 31 Cearn Drive, Leisure Isle, Knysna. In October 2004, that property was valued
at R5.85m. There were then mortgage bonds to the tune of R4.1m registered over the
property. The owner of the property is Moneyline 696 (Pty) Ltd. Bennett is the sole
director of Moneyline 696 (Pty) Ltd. The sole shareholder of Moneyline 696 (Pty) Ltd is
the Colisseum Trust. Bennett stated that her lodgings are provided by an elder daughter
and that her living expenses are 'funded out of payments of R5 000 from time to time by
elder daughter's business against a loan of approximately R31 000 made by [her] –
which loan is being repaid as and when [her] daughter is able'.
(d)
Assets owned by them or in which they have an interest:
Porritt states that he has ‘no assets of any material value’. Whilst Bennett, aside from
alluding to the R31 000 loaned to her elder daughter's business, also asserts that she
has ‘no other assets of any material value’.
(e)
The total amount expended on litigation thus far:
According to Bennett this information was not within her personal knowledge, whilst
Porritt states that he 'understands that the total amount expended in relation to the
criminal and related matters is in the region of 23 million'.
(g)
The names of trusts which met their legal expenses:
Bennett's response is: 'This information is not within [my] personal knowledge as the vast
majority of [my] legal expenses have been intertwined with those of [Porritt] and have
been met through arrangements facilitated on behalf of [him]'. Whilst Porritt states: 'It is
[my] understanding that this was routed ultimately through the Gary Patrick Porritt
Children's Trust, although the Boom Street Trust and the Snowdon Farm Trust may have
provided some assistance'.
(h)
The reason for the trusts paying their legal expenses:
Bennett states that her legal expenses have '[t]o date, been almost invariably the same
expenses as those of [Porritt] so there have been no additional expenses paid by the

trusts which were incurred by [me]'. Porritt's response is that he ‘is a discretionary
beneficiary of the Gary Patrick Porritt Children's Trust. The Boom Street Trust did not pay
any legal expenses but merely stood surety for a limited amount of legal expenses and
registered a bond to secure such suretyship’. He adds that it is his ‘understanding that
the Snowdon Farm Trust had a loan from the Gary Patrick Porritt's Children's Trust
against which certain repayments were made’.

[32] Moreover, the Companies and Intellectual Properties Registration Office (CIPRO)
lists 17 companies (one being a public company) of which Porritt is or has been a
director and records his status in ten of them as 'active'. CIPRO lists 23 companies of
which Bennett is or has been a director. It records her status in 19 of them as 'active'.
And then there is a veritable web of trusts: According to Borchers J, Porritt described
himself as a ‘beneficiary of a trust with substantial assets’ in an affidavit several years
ago.  He has subsequently sought to explain that in describing himself thus he meant
that ‘he is a "discretionary beneficiary" and the relevant trust in the exercise of its
discretion has refused to assist him any further'. The trust to which he alludes is the Gary
Patrick Porritt Children's Trust which was founded by his late father 28 years ago for the
benefit of his grandchildren born to Porritt'. He goes on to state that although he is not 'a
named beneficiary, the trustees may make available such amounts as they at their
discretion may deem appropriate for his maintenance or that of his wife or for their
reasonable pleasures in life'. The trust according to him originally acquired a number of
farming properties with loan finance. He asserts that he is 'not in possession of
information regarding the value of the assets of the trust or its income'. Both Bennett and
Porritt describe themselves as trustees of the Surrey Farm Trust and the Colisseum
Trust. Both of those trusts were established in 1993. The former owns a 34 hectare piece
of undeveloped land in Pietermaritzburg, which according to Porritt, 'it leases out for a
sum equivalent to its monthly rates'. The trustees are Porritt and his wife. The first named
beneficiaries are their children. The trust deed obliged the trustees to acquire four
specific farms in the Pietermaritzburg area. The latter, as Porritt puts it, 'owns Moneyline
696 (Pty) Ltd'. The trustees are Bennet and Porritt. In 1993 by resolution of the trustees
Bennett’s two daughters were substituted as beneficiaries. In addition Porritt and his wife

are the trustees of the Surrey Development Trust which was established in 1993. The
first-named beneficiaries appear to be their children. The trust deed obliged the trustees
to acquire four specific farms in the area of Pietermaritzburg, which it lists. The Boom
Street trust was established in 1990. The founder was Mr C D Harris (who also founded
the Coliseum Trust). The trustees are Mrs Porritt and Mr K H Knight. The beneficiaries
are the four children of Mr and Mrs Porritt together with any other persons or trusts
appointed or substituted unanimously by the trustees. The trustees are obliged in terms
of the trust deed to acquire ownership of a specifically identified property in
Pietermaritzburg. The Snowdon Farm Trust was established in 2002. The first trustees
were Mrs Porritt and Mr D H Knight. The beneficiaries of the trust are the children of Mr
and Mrs Porritt. Together with any other persons or trusts appointed or substituted
unanimously by the trustees. This is the trust to which Mr Porritt provides technical
advice and assistance and which provides him with a cell phone. The trustees were
obliged in terms of the trust deed to acquire the farm Snowdon, in extent 1 283 hectares
in KwaZulu Natal. There is also a reference in the record to a further property-owning
trust, the Reeboksfontein Trust, of which Porritt’s children are the beneficiaries. None of
the trust deeds state from whom in each instance the immovable property, the subject of
that deed, is to be acquired, on what terms that is to be done and whether it is to be
received as a donation or purchased and, if the latter, how the purchase price is to be
paid.

[33] Section 3B makes plain that it is in fact the court’s enquiry. It follows that the
employment of terminology such as ‘burden or onus of proof’ is particularly unhelpful and
would serve to obfuscate rather than elucidate the enquiry. In those circumstances it
would be wholly inappropriate for a court to saddle an accused person with an onus and
to decide the matter on the strength of whether or not that has been discharged. That is
not to suggest that persons such as the respondents would be free to adopt a supine
attitude. On the contrary, particularly where, as here, the information sought is peculiarly
within their knowledge, they have as much - if not more - of an obligation as the State to
assist the court’s enquiry. Failure in those circumstances to assist the court may well be
fatal to their quest for legal assistance at State expense. For, if the court is left in the dark

as to one’s personal circumstances it can hardly properly undertake the postulated
enquiry. Were that to be the case it must perforce decline to issue the directive
contemplated by s 3(B)(i). In this case Borchers J observed that ‘the court has not the
administrative machinery to investigate the correctness of the information supplied’. That
may be so. But that ignores the court’s power to subpoena witnesses and documents or
to place witnesses such as the respondents under oath and if necessary for them to be
subjected to cross examination. Those are formidable weapons in the judicial armoury
that must, where necessary, be employed by a court to enable it to discharge its
constitutional mandate.

[34] I have referred in some detail to the evidential material that served before
Borchers J because it illustrates, I believe, a complete lack of candour on the part of both
Bennett and Porritt. Counsel for the LAB submitted that the respondents have
deliberately structured their affairs in such a way as to facilitate the disposal or
concealment of their assets. Whilst there is much to be said for that contention, it is
unnecessary for this court to go that far. Both Bennet and Porritt adopted an intractable
attitude and for well on one year refused to furnish the LAB with information that was
legitimately sought for the purposes of assessing their entitlement to legal aid. They
eventually furnished information only after being directed by the court to do so. When
they eventually did many of their responses were deliberately evasive and cagey. Each
preferred to burden the LAB with the responsibility of ascertaining the extent of their
interest in companies and close corporations. Other important disclosures were qualified
by the words ‘to the best of my recollection’ or ‘to the extent that I am aware of’. And yet
in each instance the information sought was peculiarly within their knowledge. That ought
reasonably therefore to have redounded to their discredit.

[35] Given the information supplied by them, one is none the wiser as to why the trusts
(or indeed which ones) furnished as much as R23m for various preliminary legal
skirmishes. And why they are no longer willing to fund the defence of either in the
criminal trial proper. Moreover, one cannot discern on what basis the respondents and in
particular Bennet qualified for assistance from those trusts. It is also somewhat rich for

Bennett to say that she qualified for assistance from the trusts because her legal
expenses and those of Porritt have invariably been the same and yet in the face of that to
assert an entitlement separate from him to representation at State expense. On the
LAB’s reckoning the criminal trial would cost substantially less than the R23m already
spent.  A more pragmatic utilisation of the funds at their disposal from the outset would
have rendered their application for legal aid unnecessary. But as has been made plain
both in this court and the one below they intend to employ every stratagem available to
them in order to delay the commencement and thereafter continuation of the trial for as
long as they possibly can. Whilst pursuing that as their chosen course may well be their
right, it may not be without its consequences. For as the Constitutional Court has
endeavoured to stress (S v Jaipal23):
'The right of an accused to a fair trial requires fairness to the accused, as well as fairness to the public as
represented by the State. It has to instil confidence in the criminal justice system with the public, including
those close to the accused, as well as those distressed by the audacity and horror of crime.'
Nothing further need, however, be said about any of that at this stage.

[36] In my view the responses of both Bennett and Porritt fall far short of satisfying one
that their personal circumstances are such that they do indeed qualify for legal
representation at state expense. I thus am of the view that given the paucity of reliable
information the learned trial judge wrongly concluded that Bennett and Porritt 'have
shown themselves to be indigent as defined'. It follows therefore that on the first ground
the LAB must succeed.

[37] That conclusion ordinarily at any rate ought to have disposed of the appeal. But as
Borchers J herself observed in granting leave to appeal to the LAB on the second
ground:
'The issue is of great importance to the Legal Aid Board. This is a body charged with the equitable use of
the limited public funds made available to it in order to provide legal representation for a very large number
of indigent people. My order will annually take away a significant and possibly disproportionate slice from
the available funds for several years. More important, perhaps, is the submission made by [Counsel] that I
set a precedent which is likely to be followed by other courts. Relatively few orders, if made annually, could

23 2005 (4) SA 581 (CC) para 29.

make the Legal Aid Board's financial position unpredictable and possibly untenable. It is therefore crucial
for the Legal aid Board that the issue be decided at the highest level by the courts.'
Plainly the ruling of Borchers J on this leg of the enquiry is not purely academic. It does
indeed have far reaching ramifications for the LAB. It therefore seems eminently sensible
to me that we consider its correctness.

[38] Borchers J was quite correctly concerned with the integrity of the trial. After all she
appreciated that the right to receive a fair trial according to law is a fundamental element
of our criminal justice system. And that representation by counsel must be considered
not on its own but as one relevant element of that broader right. Moreover the learned
judge recognised that the constitutional right to counsel must be real and not illusory and
that an accused has, in principle, the right to a proper, effective or competent defence.24
As is evident from the judgment, her approach was cognisant of the fact that the right to
chosen or assigned counsel is a right of substance, not form.25 But as she herself put it
the respondents had 'asked for legal representation on a lavish scale – senior and junior
counsel and an attorney for each accused'. What she ultimately ordered the LAB to
provide was thus much less than that sought. That notwithstanding the question remains
whether the right to assigned counsel comprehends a right as generous as that
discerned by the learned judge. For, if it did not, then Borchers J lacked the power to
order the LAB to provide each of the respondents with two advocates in private practice
to be remunerated at the maximum of the legal aid tariff.

[39] Courts now derive their power from the Constitution itself.26 It follows that courts
too must observe the constitutional limits of their authority. In Doctors for Life
International v Speaker of the National Assembly & others27 the Constitutional Court
stated:
‘Courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave
certain matters to other branches of government. They too must observe the constitutional limits of their

24S v Halgryn 2002 (2) SACR 211 SCA para 14.
25 S v Tandwa 2008 (1) SACR 613 (SCA) para 7.
26 Phillips & others v National Director of Public Prosecutions 2006 (1) SA 505 (CC) para 47.
27 2006 (6) SA 416 (CC) para 37.

authority. This means that the Judiciary should not interfere in the other branches of government unless to
do so is mandated by the Constitution.’
The Constitutional Court also reminded us that courts should assiduously refrain from
exercising executive or legislative functions under the guise of judicial review (DPP,
Transvaal v Minister of Justice and Constitutional Development & others).28 It held (para
183) that judicial review ‘permits courts to call upon the executive and legislature to
observe the limits of their powers but does not permit courts to exercise those powers
themselves’. Courts therefore have a duty to patrol - but not cross – the constitutional
borders defined by the Constitution.

[40] If legal representation is indeed an advantage, as it must be to an accused person
in practically every case, then it must follow that it would be in the interests of justice that
representation be available in practically every case, if necessary at public expense.
Moreover, it would be in the interests of justice that such representation be of the highest
calibre. But as it was put in Dietrich v R: 29
'If the interests of justice are to be pursued without regard to other considerations, then clearly they require
not only a fair trial but the fairest possible trial. But the interests of justice cannot be pursued in isolation.
There are competing demands upon the public purse which must be reconciled and the funds available for
the provision of legal aid are necessarily limited. The determination of what funds are to be made available
is not a function which the courts can or should perform. Nor are the courts equipped to determine how the
available funds are to be distributed – for example, whether it is preferable to spread them amongst the
largest number of cases possible or to devote them to a smaller number of complex or more costly cases.'

[41] In my view the Canadian jurisprudence is particularly instructive on this aspect of
the case. It is clear that the Supreme Court of Canada will not dictate to the provinces
and territories how they should deliver legal aid and which delivery models they should
establish and implement (R v Prosper).30 As the following dicta from an assortment of
Canadian cases illustrate, their courts have manifested a studious disinclination to usurp
the power and functions of their legal aid agencies:
'I approach with wariness the prospect of ordering the payment of counsel other than strictly in accordance
with the Legal Aid Scheme. The case law is clear: in general, provincial legal aid schemes accord with the

28 2009 (2) SACR 130 (CC).
29 See fn 19.
30 (1994) 92 CCC (3d) 353.

Charter and fulfil the requirement at common law for the provision of counsel where this is necessary for a
fair trial. In addition, the courts should show restraint in ordering the commitment of public funds; ordinarily,
that is for those who are elected' (R v F (DP)).31

'The legal aid system is in place to ensure legal representation for the less privileged in our society.
Financial and budgetary constraints dictate that the remuneration paid to lawyers who act for legal aid
clients must be carefully controlled and may be less than the amount paid to lawyers for comparable
services rendered to clients who are not on legal aid. The fees might not be "reasonable" based on current
market rates for lawyers' services. When a lawyer places himself or herself on the Legal Aid Roster and
signs a certificate to represent a client he or she knows and accepts the quantum of remuneration to be
paid. It would be inequitable if the lawyer could attempt to receive more than the amounts specified in the
Legal Aid Rules on the basis that the fees are reasonable, pursuant to a court taxation under Rule 6(1)(iii)'
(P. Barristers and Solicitors v Legal Aid Society (Alberta)).32

'I'm very cognisant of the fact that the Ontario Legal Aid Plan is a programme created and funded by the
Province. One of its purposes is to provide for an orderly financially responsible means of funding counsel
for those who cannot afford to retain counsel privately. If I were to order that counsel for these accused be
paid at hourly rates that are substantially higher than the legal aid rates, then I would be undermining the
integrity of the legal aid system in Ontario. There must be a certain consistency in all cases in which
funding is provided by the Province for defence counsel' (R v Magda).33

'Generally, if an accused is offered state-funded and competent counsel within the legal aid scheme, he or
she will not be able to seek an order that the Attorney General provide other funded counsel of choice
unless the provision of such other counsel is necessary to ensure that the accused can receive a fair trial'
(R v Druken).34

[42] That is not to suggest that a court is powerless in the face of an unreasonably
intransigent legal aid board. After all it is the court that is burdened with the constitutional
obligation of ensuring that the proceedings are conducted in accordance with notions of
fairness and justice.35 The approach to this conundrum by the Canadian courts,
consistent with an appreciation of the limits of its own decision-making powers, is not to

31 [2000] NJ no. 1110 (NfldTD) para 46.
32 [1994] AJ no. 1018 (ALTA QB).
33 [2001] OJ no. 1861 (Ont SCJ) para 56.
34 (2003) 686 A.R 271 para 29.
35 Legal Aid Board v Pretorius para 36.

issue orders against their legal aid agencies but rather to stay the proceedings where
satisfactory arrangements for legal representation cannot be made. In R v Peterman36
the accused was charged with four counts of arson. He was eligible for legal aid and
Legal Aid Ontario issued him with a legal aid certificate. The certificate allowed him to
select a lawyer of his choice to represent him, provided the lawyer would accept the
certificate. The certificate carried with it certain conditions. The lawyer had to bill legal aid
at the legal aid tariff and accept certain limitations. The most important of those
limitations concerned the payment of fees and expenses of out of town counsel,
preparation time and the retention of junior counsel. The accused sought an order for
payment at rates in excess of the normal legal aid tariff for counsel and junior counsel.
He also sought payment of counsel's reasonable disbursements, payment of counsel for
the full amount of preparation time with no maximum limit on the number of hours of
preparation and payment for counsel's meals and accommodation. Legal Aid had in
place certain policies concerning the use of out of town counsel. The application judge
refused to grant most of the relief sought but found 'this is a complicated case, ... I am
satisfied that no person other than Mr Rock [Counsel selected by the accused] could do
a fair representation of the accused at this stage.' She accordingly decided that the
denial of travel time, reasonable preparation time and travel expenses was unreasonable
and that the request for junior counsel was reasonable. She stated that she had some
serious concerns that if counsel's travel expenses and reasonable accommodation and
meal expenses were not paid 'the accused would not receive a fair trial'.
On appeal, Rosenberg JA for a three panel Ontario Court of Appeal stated (para 21):
'That the application for setting legal aid rates and policies relating to the retention of out of town counsel
and of junior counsel lies with Legal Aid Ontario, not the court. ... A criminal trial court has no jurisdiction to
review those policies and having determined that they are unreasonable, impose other arrangements on
Legal Aid Ontario. The criminal trial court's jurisdiction rests solely on the obligation to ensure that the
accused person receives a fair trial. In some cases, the court would be satisfied if an accused is not
represented by counsel, his or her right to a fair trial as guaranteed by ss. 7 & 11(d) of the Canadian
Charter of Rights and Freedoms would be infringed, if such an accused lacks the means to employ counsel
privately, but has nevertheless been refused legal aid, the court can make an order staying the
proceedings until the necessary funding for counsel is provided by the state.'

36 2004 119 CRR (2d) 7.

The judgment continued (para 25):
'In considering these issues, the application Judge was, again, not entitled to review the reasonableness of
the decisions made by Legal Aid. Her focus had to be on whether the respondent's right to a fair trial was
imperilled because of the conditions under which he was being defended. In my view, there was no
evidence to support a finding that the respondent's right to a fair trial was at risk.'

[43] Such an approach finds favour in Australia as well. As Dietrich put it:
'For our part, the desirability of an accused charged with a serious offence being represented is so great
that we consider that the trial should proceed without representation for the accused in exceptional cases
only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that
representation can be obtained. While, in some jurisdictions, judges once had the power to direct the
appointment of counsel for indigent accused, this power has been largely overtaken by the development of
comprehensive legal aid schemes in all states, and, as such, trial judges now cannot be asked to appoint
counsel in order that a trial can proceed. However, even in those cases where the accused has been
refused legal assistance and has unsuccessfully exercised his or her rights to review of that refusal, it is
possible, perhaps probable, that the decision of a Legal Aid Commission would be reconsidered if a trial
judge ordered that the trial be adjourned or stayed pending representation being found for the accused.'

[44] Our constitutional model demands no less of our courts. Judicial deference,
Schutz JA reminded us, ‘does not imply judicial timidity or unwillingness to perform the
judicial function’,37 but is an appreciation by the court of the limits of its own decision-
making power. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
others38 O’Regan J explained it in these terms:
'In the SCA Schutz JA held that this was a case which calls for judicial deference. In explaining deference,
he cited with approval Professor Hoexter's account as follows:
"(A)  judicial willingness to appreciate the legitimate and constitutionally-ordained province of administrative
agencies; to admit the expertise of those agencies in policy-laden or polycentric issues; to accord their
interpretation of fact and law due respect; and to be sensitive in general to the interests legitimately
pursued by administrative bodies and the practical and financial constraints under which they operate. This
type of deference is perfectly consistent with a concern for individual rights and a refusal to tolerate
corruption and maladministration. It ought to be shaped not by an unwillingness to scrutinise administrative
action, but by a careful weighing up of the need for and the consequence of – judicial intervention. Above

37 Minister of Environmental Affairs & Tourism and others v Phambili Fisheries (Pty) Ltd and another;
Minister of Environmental Affairs & Tourism and 0thers v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407
(SCA) para 50.
38 2004 (4) SA 490 (CC) para 46.

all, it ought to be shaped by a conscious determination not to usurp the functions of administrative
agencies, not to cross over from review to appeal."’

[45] We need hardly remind ourselves that courts do not control the public purse, nor
do they have the power to conscript the legal profession to render services without
reward. It is for the other arms of government to ensure that adequate provision is made
for legal representation at State expense. Here they have chosen to do so through the
LAB. Demands other than legal aid on the public purse may limit the availability of funds.
Courts should be slow to attribute superior wisdom to themselves in respect of matters
entrusted to other branches of government. As O’Regan J puts it: ‘A decision that
requires an equilibrium to be struck between a range of competing interests or
considerations and which is to be taken by a person or institution with specific expertise
in that area must be shown respect by the Courts’.39 The LAB is undoubtedly one such
institution. The legislature and executive need to appreciate, however, that if the
limitation of available funds for legal representation at State expense is too severe the
administration of justice will unquestionably suffer and with it our constitutional order.

[46] Finally, nothing here stated should be construed as being emasculatory of a
court’s legitimate power of review. It is now well-established that the control of public
power through judicial review is a constitutional matter. Courts have a duty to finally
determine whether public power has been lawfully exercised and they would be failing in
that duty were they to hold that the validity of the exercise of public power is beyond its
jurisdiction. The Constitution places significant constraints on the exercise of public
power through the Bill of Rights and the founding principle enshrining the rule of law.

[47] As Chaskalson P puts it:
'It is a requirement of the rule of law that the exercise of public power by the Executive and other
functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary and inconsistent with this requirement. It follows that
in order to pass constitutional scrutiny the exercise of public power by the Executive and other

39 Bato Star para 48.

functionaries must, at least, comply with this requirement. If is does not, it falls short of the standards
demanded by our Constitution for such action.'40

[48] Rationality is thus the minimum threshold requirement applicable to the exercise
of all public power. Action that fails to pass that threshold is inconsistent with the
requirements of our Constitution and therefore unlawful. Thus whilst courts should not
substitute their opinions as to what is appropriate for those of the persons in whom the
power vests, were a decision to be objectively irrational, a court would have the power to
intervene and set it aside.41

[49] It follows on the view that I take of the matter that Borchers J misconceived the
nature and scope of her power. As she plainly lacked the power to order the LAB to
provide each of the respondents with two advocates in private practice to be
remunerated in accordance with the maximum rates permitted by the legal aid tariff, that
order cannot be endorsed and it accordingly falls to be set aside.

[50] In the result:
1. The appeal succeeds.
2. The order of the court below that the accused are entitled and the Legal Aid Board
is obliged to provide them with legal representation at State expense is set aside.

_________________
V M  PONNAN
JUDGE OF APPEAL

40 Pharmaceutical Manufacturers of South Africa: In re ex parte President of the Republic of South Africa
2000 (2) SA 674 para 85.
41 Pharmaceutical Manufacturers of South Africa para 90.

APPEARANCES:

For Appellant:

G M Budlender SC42

L Crouse

Instructed by:

Legal Aid Board

Braamfontein

Bloemfontein Justice Centre

Bloemfontein

For 1st Respondent:

E M Coetzee SC

J M Ferreira

Instructed by:

National Director of Public Prosecutions

Johannesburg

National Director of Public Prosecutions

Bloemfontein

For 2nd and 3rd  Respondents

Instructed by

Lawley Shein Attorneys

Johannesburg

Symington & De Kok

Bloemfonteint

42 Mr Budlender and Ms Crouse were only instructed to represent the LAB after the matter was postponed
by this court on 13 May 2010. They thereafter filed supplementary Heads of Argument dated 23 July 2010
and argued the appeal on behalf of the LAB on 16 August 2010.
REPUBLIC OF SOUTH AFRICA

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

22 September 2010

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Legal Aid Board v The State
(363/09) [2010] ZASCA 112 (21 September 2010)

Media Statement

Today the Supreme Court of Appeal (SCA) upheld an appeal by the Legal Aid Board (LAB) against a
judgment by Borchers J in the Johannesburg High Court that it provide legal aid to Gary Porritt and
Sue Bennett who have been indicted together with various companies that they represent on a total of
3 160 fraud charges. Both Porritt and Bennett are on bail. The former's bail was fixed at one million
Rand, an amount subsequently reduced to R800 000. And Bennett's bail was fixed in the amount of
R100 000.

Although they first appeared before Borchers J during January 2006, the criminal trial proper is yet to
get under way. When they initially appeared in the High Court they were legally represented by
counsel and an attorney of their choosing. Since May 2007 they have been without legal
representation. Until then, they spent some 23 million Rands on various preliminary legal skirmishes.
According to Porritt those legal costs were funded by certain trusts of which, as he puts it, he was a
discretionary beneficiary. Since then those trusts, so he says, have resolved to withdraw their
financial support and to distance themselves from the criminal trial.

They accordingly made application to the LAB for legal representation at State expense. It was
required to complete a standard form briefly setting out their financial position. They declined to do so
and their applications were accordingly refused by the LAB.

During September 2008, Borchers J decided to invoke the provisions of section 3(b) of the Legal Aid
Act that empowers a court to direct the a person be provided with legal representation at state
expense after having taken into account the personal circumstances of the person concerned, the
nature and gravity of the charge and any other factor which in the opinion of the court should be taken
into account. Borchers J directed the LAB to furnish her with a report contemplated by that section
and Porritt and Bennett to answer a number of questions pertaining to their personal circumstances.

On the strength of the information that served before her, Borchers J concluded that Porritt and
Bennett had shown themselves to be indigent as defined she accordingly directed the LAB to provide
each with two practitioners, who were to be remunerated at the maximum fee permitted by the Legal
Aid Guide, to represent them in their criminal trial. Later the Judge clarified that all four practitioners to
be appointed by the LAB to represent Porritt and Bennett were to be advocates in private practice and
not employees of the LAB.

The SCA held that a court undertaking such an enquiry must ask itself two questions: first, would
substantial injustice ensure were the accused to proceed to trial without representation and, if so,
second, could the costs of that representation be borne by the accused from his or her own
resources? The first in this case proved uncontroversial. The criminal trial, if and when it eventually
starts is likely to be a complex one. The indictment runs to over 1 400 pages. In excess of 3 000
witnesses are expected to testify. It is anticipated that approximately 1 million pages of documentary
material will have to be read in preparation for trial and that the trial is expected to last in the region of
3 years. Against that backdrop there could hardly be any dispute that Bennett and Porritt will require
legal representation and that the trial would be rendered unfair were they to appear in person. For the
SCA, the second question proved more troublesome. It accepted that Borchers J, to her credit, was
concerned at the delays that had plagued the trial since inception and motivated by a desire that the
trial commence and proceed to conclusion as soon as possible. But having analysed their responses
to the learned Judge's questions, the SCA concluded that it illustrated a complete lack of candour
onthe part of both Bennett and Porritt. The SCA accordingly concluded that Borchers J had been
wrong in finding that Bennett and Porritt had shown themselves to be indigent as defined.

The SCA proceeded then to consider whether Borchers J had the power to order the LAB to provide
each of the respondents with two advocates in private practice to be remunerated in accordance with
the maximum rates permitted by the Legal Aid Tariff. The SCA held that in that regard Borchers J had
misconceived the nature and scope of her power and it refused to endorse that order.

--- ends ---