Legal Aid Board v The State; Porritt and Bennett

Gary Patrick Porritt and Susan Hilary Bennett were indicted in the South Gauteng High Court on approximately 3 160 counts of fraud. They had previously spent about R23 million on legal representation funded through trusts but later claimed that those funds were no longer available. They applied to the Legal Aid Board (LAB) for legal representation at state expense but repeatedly refused to provide detailed financial information required to establish indigence. Their applications and internal appeals within the LAB were refused. The trial judge, Borchers J, nevertheless ordered under section 3B of the Legal Aid Act that the LAB provide each accused with two advocates in private practice, remunerated at the maximum legal aid tariff. The LAB appealed to the Supreme Court of Appeal.

The appeal succeeded. The order of the South Gauteng High Court directing that the accused were entitled to, and that the Legal Aid Board was obliged to provide, legal representation at state expense (including two private advocates each) was set aside.

This case clarifies the limits of the constitutional right to legal representation at state expense and confirms that it is conditional on proof of indigence and the likelihood of substantial injustice. It affirms the autonomy of the Legal Aid Board in determining how legal aid is provided and reinforces separation of powers by restricting courts from prescribing the form or cost of legal representation funded by the state.