SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
(SITTING AT BISHO)
CASE NO.: CC40B/21
In the matter between:
THE STATE
Versus
PHUMLANI MKOLO & 13 OTHERS
In re:
THEMBELANI SALI (Accused No.6) Applicant
Versus
LEGAL AID SOUTH AFRICA Respondent
JUDGMENT REFLECTING REASONS FOR AN ORDER
ZONO AJ:
Introduction
[1] On 11th March 2026 this matter came before court for an order directing the
Legal Aid South Africa (LASA) to provide legal representation to Mr Sali, who
is Accused No 6 in the criminal case, at state expense. The application was said
to be in terms of Section 2 2 of Legal Aid Act 39 of 2014. After full arguments
by all the parties, the application was refused. Here are the reasons.
Background
[2] This matter emanates from a criminal matter that is ongoing between the
state and fourteen (14) accused persons. I t transpired during the criminal
proceedings that the legal representation at the state expense for Mr Tembelani
Sali, who is accused No 6 in the criminal matter, was terminated. The main
basis for that termination was that Mr Sali gave false declaration i n that, when
he was completing a legal aid application form he indicated that he does not
have immovable property. The completed legal aid application form was
attached to the termination notice. The termination of Mr Sali’s legal
representation was seemin gly made on 14 th October 2025 by Mr Phumlani
Dlamkile, Head of Office (HOO), King Williams Town (Local Office). The
termination notice revealed that Mr Sali is the owner of three (3) immovable
properties respectively situating at the following addresses: 3[...] Gonubie, East
London; No 3[...], Mdantsane and at No 1[...] Petty Dunnottar in Nigel. Those
properties were not disclosed in the application for legal representation at state
expense. Mr Sali exhausted the internal remedies by appealing the HOO’s
decision to terminate the legal representation to the Provincial Executive (PE)
and ultimately to the Chief Operations Officer (COO). His endeavours were
unsuccessful hence this application. It is observed that the appeals were as if Mr
Sali was appealing a decis ion refusing a Legal Aid Assistance, which was not
the case. The Legal Aid Assistance was granted but that was later terminated.
[3] The matter came before court on 24 th February 2026, and Mr Sali
apparently indicated a wish to invoke the provisions of se ction 22 of the Legal
Aid Act 39 of 2014 (the Act). The following order was granted on 24 February
2026:
“2.1 This matter against accused No 6 is further adjourned to 11
March 2026, in order for this court to attend to Accused 6’s
application in terms of section 22 of Act 39 of 2014 for legal
representation at state expense.
2.2 The following deadlines for actions by Legal-Aid SA and
Accused 6 are set to wit
a. 3 March 2026 before 16:00: Legal Aid South
Africa (LASA) to submit their written report in terms of the
provisions of section 22 of Act 39 of 2014 to the registrar,
the prosecution and accused No 6;
b. 9 March 2026 before 16:00: Accused 6 to submit his
evidence in terms of section 22(6) of Act 39 of 2014 to the
registrar and the prosecution.
3. The application by Accused 6 is to be argued on 11 March 2026 in
the Bisho High Court.
4.All the remaining accused’ s bail is extended to 13th March 2026, and
they are ordered to attend court on that day.
5. The Warrant officer of arrest previously stayed for accused No 5
is cancelled.”
This matter certainly came before me by means of the aforementioned court
order.
[4] The Legal- Aid South Africa (LASA) met the deadlines, as it submitted the
report envisaged in the court order on 2 March 2026. Mr Sali filed a document
styled “Report in terms of section 22(6) of the Legal Aid Act No 39 of 2014 T.
Sali)” on 9 March 2026. The document purported to comply with the court
order dated 24 th February 2026, in so far as it directed Mr Sali to submit his
evidence in terms of Section 22(6) of the Act on or before 9 March 2026.
The matter was then heard on the basis of an affidavit deposed to by Mr
Phumlani Dlamkile; the report filed by the LASA with the registrar of this court
on 02nd March 2026, and the report filed by Mr Sali on 09th March 2026.
[5] The starting point should be the affidavit deposed to by Mr Dlamkil e
(HOO), Qonce local office. In paragraph 3-5 thereof he states as follows:
“3. I confirm that Mr Sali applied for Legal Aid and in doing so signed our
application form known as LA1. In it, he indicated he does not have
immovable property. Annexed hereto is such application marked as PD1.
4. It has come to our knowledge that he owns three properties, one at 3[...]
Gonubie, East London; another at 3[...] Mdantsane and the
third one at 1[...] Petty Dunottar in Nigel and this was not disclosed to us.
5. When he signed the Legal Aid application (LA1) he made a
declaration that the information he gave us was true, correct and
complete. That giving false declaration could lead to the suspension
of Legal Aid, and in appropriate circumstances to criminal
prosecution.
6.Based on the aforesaid, Legal Aid was terminated by a letter sent
to him on the 14th October 2025. Annexed hereto is such letter
marked PO2. Mr Sigcau who is his judicare attorney confirmed
receipt of the email, and that Mr Sali also received it.” (sic)
[6] The termination letter referred to in the affidavit aforesaid was written on
14th October 2025. The letter is worded as follows:
“Termination of Legal Aid: Thembelani Sali (x920893922)
You completed a legal Aid application, and you indicated that you do not
have immovable property. Attached is such application. It had come to our
knowledge that you own three properties, one at 3[...] Gonubie, East London,
another at 33 NU9, Mdantsane and the third o ne at 1[...] Petty Dunottar in
Nigel and this was not disclosed to us. When you signed the Legal Aid
application you made a declaration that the information you gave us was true,
correct and complete. That giving false declaration could lead to the
suspension of legal Aid and in appropriate circumstances, criminal
prosecution. Based on the, Legal Aid is hereby terminated ” (sic). The
termination letter was also penned by Mr Dlamkile.
[7] Mr Sali apparently appealed the decision aforesaid to the Provincial
Executive (PE) and ultimately to the Chief Operations Officer (COO). His
appeals were unsuccessful. The outcome of the appeal to the COO dealt
pertinently with the respective values of Mr Sali’s immovable properties, which
according to the outcome amounted to a total value of R 3820 000.00 plus
R90 000.00 which is the value of Mr Sali’s movable property. Paragraph 4 of
the COO’s appeal outcome reads as follows:
“4. It is evident from the above that you grossly misrepresented the value of
your assets in orde r to create the impression that you are indigent, so that
legal aid can be provided to you in circumstances where you do not qualify for legal
aid assistance.”
5. Based on the above, it is evident from the value of your properties that you
cannot be said to be indigent as you exceed Part B of the means test….”
[8] A report in terms of section 22(1) of the Act was filed by LASA on 02 nd
March 2026 as directed in terms of the court order of 24 TH February 2026. The
report reiterates, albeit in different terms, the contents of the affidavit deposed
to by Mr Dlamkile on 16 th October 2025. In relevant parts the report reads as
follows:
“.4… initially, he presented himself as an indigent person who does not own
properties/ or have any assets. Legal Aid was granted to him on that basis.
He pleaded not guilty to all charges laid against him. The case proceeded.
On further scrutiny, it wa s found that he was not indigent and legal aid
assistance was terminated or withdrawn. Reasons for such decision were
communicated to him especially on the letter from COO, Marked as TS1.
5… It is hereby recommended that Mr Sali can afford his own l egal
representative. He has adequate means to acquire one. He is not indigent in
anyway. Provisions of legal representation at state expense cannot be made
available to him. Attached is the communication from COO with specifics of
reasons for refusal, marked as TS1” (sic)
[9] The parties are ad idem that this application is in terms of section 22 of the
Act. Section 22(1) of the Act provides that:
“1. A court in criminal proceedings may only direct that a person be
provided with legal representation at state expense, if the court has-
(a) taken into account-
(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 representative 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;
(b) subject to subsection (3), ref erred the matter, together with any report the
court may consider necessary, for the attention of Legal Aid South Africa, for
evaluation and report by Legal Aid South Africa and Legal Aid South Africa
has made a recommendation whether or not the person concerned qualifies for
legal representation, as provided in subsection (2) (c) (i).
This subsection provides for provision of a legal representation at state expense
and not for reinstatement of a terminated legal representation.
[10] In circumstances whe re the Legal Aid applicant has applied for legal
representation at state expense; that he has been refused such legal
representation by LASA; and that he has exhausted his or her internal right to
appeal;1 and also that he has not received any respon se to the application
within a reasonable time; or that the court is of the opinion that there are
1 Section 22 (1)(b) and 22(3) of the Legal Aid Act 39 of 2014
particular circumstances that need to be brought to the attention of LASA by
the court in a report referred to in subsection (1)(a)(ii), the court may refer a
matter in terms of subsection (1)(b). The LASA may make recommendation
whether or not the legal aid applicant qualifies for legal representation. If the
court refers the matter in terms of section (1)(b), the LASA must evaluate and
report on a mat ter. The report must include a recommendation whether or not
the legal aid applicant qualifies for legal representation, personal circumstances
of the legal aid applicant, whether any other legal representation at state
expense is available or has been pro vided and or any other factor which in the
opinion of LASA, should be taken into account 2.In effect the factors mentioned
in Section 22(1) (a) (i) and (iii) must be embodied in a report made to court by
LASA.
[11] While it is not clear that the factual matrix of the case accords with the
requirement of referral for a report 3, the matter was referred and the report was
obtained from the LASA. The spirit and purport of section 22(1)(b) read with
22(2) and 22(3) of the Act is seemingly that, for the referral and the report to be
apposite, the Legal Aid applicant must have applied for legal representation and
that the application has been refused, and that there has been an exhaustion of
internal remedies, or that there is no response to the applicatio n for legal
representation at state expense that has been forthcoming. In that setting, the
provisions of section 22(3) of the Act apply. Refusal of the application is
contemplated in Regulation 34. In this matter there was no refusal of the
application, b ut termination of the already granted application and such
termination is envisaged in Regulation 33.
2 Section 22(2) of the Legal Aid 39 of 2014
3 Section 22(3) of the Legal Aid Act 39 of 2014 set out specific instances where a report may be sought .
Referral is apposite only when an application for legal representation at state expense is refused in terms of
regulation 34 and internal remedies have been exhausted. In casu, the legal representation was granted and later
terminated in terms of regulation 33
[12] Section 22(6) of the Act provides that:
“(6) In determining whether any person is entitled to legal representation at
state expense and before any court orders the provision of legal representation
at state expense, the legal aid applicant bears the onus of showing, on a
balance of probabilities, that he or she-
(a) is unable to afford the cost of his or her own legal representation;
(b) has made a full disclosure of all relevant facts and documents
pertaining to his or her inability to pay for his or her own legal
representation;
(c) has a lifestyle that is consistent with his or her alleged inability to
afford the cost of his or her own legal representation; and
(d) has cooperated fully with any investigation conducted by Legal Aid
South Africa”.
The words in the subsection “ legal aid applicant ” presuppose that the
provisions are applicable at an application stag e; contradistinctionally or as
opposed to “legal aid recipient “referred to in the regulations. In casu, Mr Sali’s
application was granted and he“ ipso facto ” became a legal aid recipient.
Interpretation maxim “ expressio unius est exclusio alterius ” applies . The
express mention of the applicant in the subsection is an exclusion of the
recipient. Section 22(6) applies only to the refused applications. This matter is
about legal aid assistance that was granted and later terminated.
[13] While the Act does not specifically provide for instances where a legal
representation at state expense has been granted but later withdrawn or
terminated, it provides for the making of regulations by the Minister of Justice
and Correctional Services. Regulations provide for te rmination of legal aid
assistance. Section 23(1) of the Act provides thus;
“(1) The Minister must, after receipt of recommendations of the Board, make
regulations relating to-
……
……
(c ) the policy relating to the approval or refusal of legal aid, the
termination of legal aid and appeals against such refusal or termination
of legal aid…”
The Constitutional Court in Welkom High School4 quoted with approval the case
of Akani Garden Route Pty Ltd 5 to make a point that regulations and rules are
legislative instruments. Regulations are subordinate legislations which hold
legally binding status and have the force of law, ensuring specific, detailed and
operational compliance. They must conform to the constitution6 and the parent
statute. They provide necessary detail to implement legislation. Regulations
have the same force and effect as the statute in terms of which they are made 7.
As subordinate legislations, they are part of the main legislation. The Act and
the Regulations must be read conjunctively.
[14] Regulation 33 (1) provides for termination of Legal Aid assistance thus:
4 Head of Department, Department of Education, Free stse Province v Welkom High School and another;
Head of Department of Education Free State Province v Harmony High School and Another 2013 (9) BCLR
989 (CC); 2014 (2) SA 228 (CC) Para 217
5 Akani Graden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd 2001 (4) SA 501 SCA Para 7
6 AAA Investments (Proprietary) Limited v Micro Finance Regulatory Council and Another 2006 (11) BCLR
1255 (CC), 2007 (1) SA 343 (CC) Para 72
7 National Pride Trading 452 (Pty) Ltd v Media 24 Ltd 2010 (6) 587 (ECP) Para 31
“(1) Legal Aid South Africa may terminate a legal aid recipient's legal aid on
account of the conduct of the legal aid recipient, which may include that the
legal aid recipient-
(a)ceases to qualify under the means test;
(b)fails to appear in court timeously on the appointed day without giving a
good reason for not appearing and a warrant for arrest has been issued;
(c ) unreasonably refuses to accept a settlement;
(d)does not timeously comply with a contribution order as contemplated in
regulation 32;
(e ) Terminates the mandate of the instructed legal practitioner
unreasonably and without goof reason; or
(f ) makes it impossible for the instructed legal practitioner to carry out his
or her mandate.”
[15] Of particular importance is regulatio n 33(1)(a), 33 (3) (a) and 33(3) (d) of
the Act. Regulation 33(3)(a) provides for termination of legal aid where the
instructed legal practitioner’s mandate is terminated by LASA for ethical
reasons. Regulation 33(3)(d) provides for termination of legal ai d where the
legal practitioner is unable to continue to act because there is a cause that makes
it impossible to carry out his or her obligations as a practitioner.
[16] It is so because according to the LASA, Mr Sali after he enjoyed the legal
aid services was found not to qualify under the means test. He was found after
the investigation or after the LASA obtained information that Mr Sali can afford
his own legal representation. The lifestyle was found not to be consistent with
the alleged inability to a fford the cost of his own legal representation. He was
found not to have made full disclosure of all relevant facts and documents
pertaining his assets.8 Mr Sigcau, who was the legal aid practitioner assigned to
Mr Sali was withdrawn or his mandate was t erminated by LASA and could not
continue to act because of a cause that made it impossible to carry out his or
her obligations as a practitioner 9. The main cause as mentioned above in this
paragraph is mainly that there was a material non -disclosure of Mr Sali’s
immovable assets when an application for a legal representation at State
expense was made. That revelation made it impossible for LASA to continue
providing legal representation and for Mr Sigcau to carry out his obligation as a
practitioner. The termination therefore fell within the purview of regulation 33
of the same Act.
[17] Whether or not the appeal process was statutorily apposite in circumstances
where there was termination of an already granted legal representation at state
expense10, Mr Sali followed and exhausted all the appeal processes stipulated
by legal aid manual. According to clause 3.5 of the manual, appeal is available
where there is refusal of legal aid. The manual was compiled, amended and
approved in terms of section 24 (1)(a) of the Act to provide for the procedure in
terms of which applications for legal Aid are administered. Clause 3.5.3 of the
relevant manual provides:
“A dissatisfied legal aid applicant may:
8 Section 22(6) of the legal Aid Act 39 of 2014
9 Regulation 33(1)(d) of the Legal Aid Act 39 of 2014
10 Regulation 34 Provides for refusal of legal and thus:
“(1) w hen an application for legal aid has been refused the legal aid applicant has
the right of appeal according to processes as determined in the Manual.” Reference to the application in this
regulation presupposes that the refusal and approval are made at an application stage; similarly reference to
legal aid applicant as opposed to legal aid recipient implies that the appeal can only be made to the refusal of an
application not termination of an already existing legal Aid assistance.
(i) apply for judicial relief - for example a review of the NOE or CLE’S
decision
(ii) approach the Presiding officer in serious criminal cases to issue an
order requiring a report under section 22 of the Act.”
In criminal cases, there are no further internal appeals beyond the National
Operations execu tive (NOE) 11. It is plain that Mr Sali did not come for this
court to issue an order requiring a report under section 22 of the Act. The option
available to Mr Sali in terms of the applicable legislative framework is the
judicial relief in the form of judicial review, especially in cases of termination of
a granted legal representation at state expense. There is jurisprudential reason
for that procedure to be followed as I set out below.
[18] The crucial decision that adversely affected Mr Sali’s legal rep resentation
at state expense is the termination of Mr Sali’s legal representation. That
decision is still extant, and it has not been impugned or challenged. For it is well
settled in our law that until a decision is set aside by a court in proceedings for
judicial review it exists in fact and it has legal consequences that cannot simple
be overlooked12. The decision to terminate Mr Sali’s legal representation cannot
simply be disregarded as if it never existed. The proper functioning of a modern
state woul d be considerably compromised if all administrative acts could be
given effect to or ignored depending upon the view the subject takes of the
validity of the act in question. No doubt it is for this reason that our law has
always recognised that even an unlawful administrative act is capable of
producing legally valid consequences for so long as the unlawful act is not set
11 Clause 3.53 of the Manual
12 South African Broadcasting Corporat ion SOC Ltd and others v Democratic Alliance and others 2015 (4)
ALL SA 719 (SCA); 2016 (2) SA 522 (SCA) Para 45
aside.13 There exists an evidential presumption of validity expressed by the
maxim “ omnia praesumuntur rite esse acta”; and until t he act in question is
found to be unlawful by a court, there is no certainty that it is. Hence it is
sometimes argued that unlawful administrative acts are voidable because they
have to be annulled 14. In the light of the above it is plain that Mr Sali
misconceived his remedy. This application should fail on this ground alone.
[19] Even if it can be said that I must consider a substitution order, it would still
be inappropriate to substitute LASA’s termination decision. A substitution order
can only be con sidered in the context of proceedings for judicial review. In the
case of PAJA review Section 8 (1) (c) of Promotion of Administrative Justice
Act 3 of 2000 (PAJA) provides:
“(i) The court or Tribunal, in proceedings for judicial review in terms of
Section (6) (1), may grant any order that is just and equitable, including
orders-
( c) Setting aside the administrative action and –
(i)…………
(ii) in exceptional cases
(aa) Substituting or varying the administrative action or correcting a
defect resulting from the administrative action.”
While it is plain that this court is not a review court invited to set aside LASA’s
decision to terminate legal representation at state expense, Mr Sali has not
13 Ouderkraal (Pty) Ltd v City of Cape Town and Others 2004 (3) ALL SA 1 (SCA); 2004 (6) SA 222 (SCA)
Para 26
14 Lawrence Baxter Administrative Law 355
shown any exceptional circumstances for a substitut ion order to be granted. In
addition, the court must be placed in a position to exercise the power imposed to
the organ of state. No information was given to this court, that would enable it
to substitute, grant or direct LASA to grant legal representation at state expense.
[20] The primary duty of the courts is to ensure that those who are charged with
the duty to perform public functions in terms of the Law Act within the
parameters of the Law. The Constitution requires courts to ensure that all
branches of government act within the law. 15 Baxter; administration law, page
305 puts it thus:
“Without Statutory Authority, the court may not venture to question the merits
or wisdom of any administrative decision that may be in dispute. If the Courts
were to do this, it would be usurping the authority that has been entrusted to
the administrative body by the empowering Legislation”.
[21] In the Economic Freedom Fighter (EFF) the 16 Constitutional Court quoted
with approval Certification case17. The Constitutional Court held:
“The principle of separation of powers, on the one hand, recognises the
functional independence of branches of government. On the other hand, the
principle of checks and balances focuses on the desirability of ensuring that
Constitutional order, as a totality, prevents the branches of government from
usurping the power from one another. In this sense it anticipates the necessary
or unavoidable intrusion of the branch on the terrain of another. No
Constitutional Scheme can reflect a complete se paration of powers: the
scheme is always one of partial separation”.
15 Maximum Profit Recovery (pty) Ltd v Sakhisizwe Local Municipality and another (1086/2019) [2025]
ZAECMKHC 25(18 March 2025) para 65
16 Economic Freedom Fighters v Speaker of the National Assembly and others; Democratic Alliance v Speaker
of the National assembly and others 2016 (5) BCLR 618 (CC); 2016(3) SA 580 (CC) para 91
of the National assembly and others 2016 (5) BCLR 618 (CC); 2016(3) SA 580 (CC) para 91
17 Certification of the Constitution of the Republic of South Africa. 1996 (4) SA 744(CC);1996 (10) BCLR 1253
(CC) para 161
[22] Even if I may be found to be incorrect in this regard, Mr Sali does not at
the very least complain in this court that the decision taken by LASA to
terminate his legal representatio n at state expense is unlawful. However, he
states in his report that the termination of his legal aid assistance was based on
incorrect allegations and statements regarding the facts or events. Mr Sali
accepts that his legal aid assistance was terminated mainly on the basis that
there is non -disclosure or no full disclosure of his assets and as a result of the
fact that he presented himself as an indigent person. He was granted, at the first
instance, the legal aid assistance. It was terminated upon discov ery that he has
some immovable properties which make him not to be indigent. While it is a
common cause that the first completed application form went missing, it is also
accepted that Mr Sali, when this matter was already serving in this High Court,
was caused to complete and sign another application form (LA1). In that new
form, Mr Sali states that he declared ownership of assets. The application form
was an annexure to the affidavit deposed to by Mr Dlamkile. It was completed
and signed on 12 th September 2025. Section B of the form deals with the assets
or it seeks disclosure of the assets Mr Sali has, and its reasonable market values.
It sought information about “ fixed property: Reasonable Market Value, less
bonds.” No information was filled in there. T he spaces were left blank.
However, Mr Sali disclosed that he has a motor vehicle worths R 60 000.00. No
further disclosures were made. I assume that, when he said he declared his
assets in the new application, he refers to the motor vehicle.
[23] Mr Sali, in the whole tenor of the documents placed before this court, does
not say anything about the three immovable properties found to be in his name.
He does not explain or give reason for his failure to disclose them in the
He does not explain or give reason for his failure to disclose them in the
application form completed on 12 th September 2025. That conduct was clearly
antithetical to the provisions of section 22 (6)(b) of the Act, which require that
the legal aid applicant makes a full disclose of all the relevant facts and
documents. That requirement is interlaced with the qu estion of lifestyle
envisaged in section 22(6) (c) of the Act. Ownership of three immovable
properties and a motor vehicle directly talks to and affects the kind of lifestyle
one is living. The value of those properties as given by the LASA is not in
dispute herein. The value of R3910 000.00 does not conduce to an indigence.
[24] A court must interpret the words in issue according to their ordinary
meaning. Ordinary grammatical meaning of the words must be adhered to and
can only be departed from if that leads to an absurd result18. A fundamental tenet
of statutory interpretation is that words in a statute must be given their
grammatical meaning, unless to do so would result in an absurdity 19. Regulation
28(6) provides that:
“(6) A legal aid applicant mus t provide proof that he or she is a natural
person who is indigent as set out in these regulations.”
South African Concise Oxford Dictionary defines the adjective indigent by
providing the following synonym: “ poor, needy. As a noun the word means “ a
needy person ”. Indigence refers to a state of extreme poverty, destitution, or
severe deprivation where basic necessities of life are lacking. It signifies being
severely impoverished. His indigence would be proved by providing
information required in terms of Section 22(6) of the Act. Consistently with
that, section 22(6) provides that “…. The legal aid applicant bears the onus of
showing, on a balance of probabilities” that he is indigent.
18 Natal Joint Municipality Pension Fund v Endumeni Municipality 2012 (4) SA 593 at 603 Para 17
19 Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC); 2014 BCLR 869 (CC) Para 28;
SATAWU and Another v Garvans and others 2013 (1) SA 83 (CC); 2012 (8) BCLR 840 (CC) Para 37
[25] The proof referred to in regula tion 28(6) is achieved when the Legal Aid
applicant satisfies the requirements of section 22(6) (a -d) of the Act on a
balance of probabilities. A person owning properties worth almost 4 million
rand cannot, by any stretch of imagination, be regarded as an indigent or a
destitute person. Mr Sali therefore failed to discharge the onus rested on his
shoulders in terms of section 22(6). Regulation 28(5) provides:
“ (5) A legal aid applicant must provide documentary proof and a written disclosure
of assets for purposes of the means test, where requested.”
During argument of this matter, Mr Sali was pointed out to be deficiencies of
his application for Legal Aid assistance. When accepting that his application
lacked sufficient disclosure, he argued that such fa ilure was as a result of the
hostile approach by Mr Dlamkile and the insufficient time he had with the Legal
Aid official who was assisting him. However, he did not tell how he managed to
forget to disclose his own houses and their high valuation and value s, but
remembered only a motor vehicle with a relatively paltry value of R60 000.00.
It is not his case that he did not see the requirements in the application form.
[26] Mr Sali in his report, makes a point that his properties are encumbered and
cannot b e used as surety for anything. That was a kneejerk reaction from
termination of his legal representation by the LASA. The termination was as a
result of his material non-disclosure of the relevant information. Mr Sali did not
explain what it means by that “his assets are encumbered.” However, Ms De
Klerk attempted to explain what it means. She submitted that the properties are
bonded and she could not give a further elaboration about the bonds. Serious
difficulties arise in this assertion. Firstly, the ap plication form (LA1) for legal
representation at state expense required information about the bonds to be
furnished. No information was furnished; the spaces were inexplicably left
blank. Even during argument, no details were given about the mortgage bonds
relating to the properties. Even at that stage of Ms De Klerk’s inability to give
detail, Mr Sali did not even attempt to give the necessary details. No
documentary proofs were provided in terms of Regulation 28(5).
[27] Mr Sali further cited, as a reas on for the scanty or paucity of information
accompanying his application, that he hoped that he would be assisted by Ms
De Klerk in his application as she gave him that impression. Of the course the
correspondence20 demonstrates that Ms De Klerk talked to the parties about the
way forward and that she was advised by Mr Sali that he intends appealing the
decision terminating his legal representation at state expense. However, that
does not take away the fact that his application suffered material non-disclosure,
which remains insufficiently explained and unacceptable.
[28] It transpired for the first time during argument of this case that the property
situating at No 1[...] Petty Dunnottar in Nigel Gauteng is subject of a lease. He
conceded that there is a tenan t staying therein and the undisclosed rental is paid
directly to the Municipality for the rates. It is not clear if the property is a
subject of a written or oral lease agreement. I have already stated that the lease
amount is not disclosed. That demonstra ted another non -disclosure. The Nigel
property generates an undisclosed income that is, according to Mr Sali, used to
pay Municipal bill. That is contrary to what he said in LA1 form that he does
not have an income.
[29] Documents placed before this court by Ms De Klerk revealed that Mr Sali
is a student at the University of South Africa (Unisa). Mr Sali confirmed that he
20 Email transmitted on 17 October 2025
is taking studies at Unisa and that he is able to pay an amount of approximately
R1800.00 per month. The source of tuition fees paid to U nisa is still
undisclosed. Let alone that he is paying such an amount.
[30] The last thing that needs attention is what is contained in the application
form (LA1). Mr Sali is a married man. However, no details of his marriage are
provided. It is not clear if his wife owns some property or if she is working or if
she has an income. The matrimonial regime is unknown. I raise this in the light
of the provisions of Regulation 28(3) which provide:
“3. If any asset is owned by a trust, company or other legal personality but is
controlled, either directly or indirectly, by the legal aid applicant or his or her
spouse, dependent, sibling, parent, descendent or nominee, for the direct or
indirect benefit of the legal aid applicant or his or her spouse, depend ant,
sibling, parent, descendant or nominee, that asset will be deemed to be owned
by the legal aid applicant for the purposes of determining whether the legal
aid applicant qualifies for legal aid in terms of the means test: Provided that
where there are beneficiaries other than the legal aid applicant or his or her
spouse, dependent, sibling, parent, descendant or nominee, the applicant is
deemed to be the owner of his or her percentage share of that assets.”
[31] The LASA made a point that Mr Sali is a shareholder and member with
member’s interests in no less than 10 juristic entities. However, Mr Sali
countered that by saying all those entities were der egistered and are not making
any profit or benefit. There was no gainsaying to that as some documentary
proof to that effect was furnished. However, it is not clear when these entities
were deregistered in so far as it relates to the application for legal representation
at state expense. There is no evidence of when these entities last made profit.
No financial statements of the relevant periods were furnished.
[32] In his report, Mr Sali preponderantly makes counter submissions to the
allegations of non -disclosure to the effect that he was not asked to furnished
specific kinds of information. That militates against the provisions of section
22(6) which place evidential burden on the legal aid applicant to show on a
balance of probabilities that he is ent itled to the legal representation at state
expense.
[33] On the conspectus of this, I found that Mr Sali has failed to discharge the
onus or duty placed on his shoulders and that there is no case made out for the
relief sought. I accordingly refused his a pplication in terms of section 22 of Act
39 of 2014. Non -disclosure generally has an element of misrepresentation
which also entails an illegality. It is a basic principle of our law that a court can
never lend its aid to the enforcement of an illegal act. 21 Granting legal aid
assistance in circumstances where there is a glaring non -disclosure amounting
to misrepresentation would be an enforcement of an illegal act of non-disclosure
and misrepresentation. LA1 form criminalises false declarations.
[34] In the result I still make the following order
[34.1] The application in terms of section 22 of Act 39 of 2014 made
by Mr Sali (Accused No 6) is hereby refused.
________________________________
A.S ZONO
21 Cool ideas 1186 CC v Hubbard and Another 2014(4) SA 474 (CC) para 77
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
Applicant : Mr Sali in person
For Respondent: Mr Dlamkile
Instructed by: Legal Aid South Africa
King Williams Town
For NPA: Ms De Klerk
Instructed by: The Director of Public Prosecution
Bhisho
Date heard : 11 March 2026
Date of the order: 11 March 2026
Date reasons delivered: 27 March 2026
Due to the fact that this matter was brought on urgent basis, this judgment
reflecting reasons for an order was handed down in court and electronically
by circulation to the above -mentioned legal representatives and the
applicant by email and release to SAFLII. The date and time for hand -
down is deemed to be 09:30 on Friday 27th March 2026.