Finding legal representation and instructing your lawyer

Sections in this chapter:

Introduction

Everyone has the right to a lawyer. If you have received a Notice of Motion, seek legal representation or advice as soon as possible.‌ If you can’t afford a lawyer, you can request free legal representation from the State.

Having legal representation is a constitutional right afforded to everyone in South Africa. However, legal representation from the State is not guaranteed. ‌What this means is that you are always allowed to have a lawyer represent you, NOT that government must always provide you with one. In eviction cases the courts will usually allow tenants who cannot afford a private lawyer enough time to get free legal representation from Legal Aid or other free law clinics. If you choose to represent yourself, it is still recommended that you seek legal advice.

South African Citizens

Legal Aid South Africa is the main form of government funded legal assistance available to you.

Non-Citizens

Non-citizens can approach the Legal Practice Council (formerly the Cape Law Society) and any free legal clinics for assistance or pay for a private lawyer

Keep a record of your attempts to find legal representation

When you go to court it is extremely important that you are able to prove to the judge or magistrate that you have made an effort to find legal representation. Make sure to request written responses from all the legal clinics you have approached.

The difference between legal advice and legal representation

Legal Advice:

Legal advice is when a qualified lawyer consults with you, understands the facts of your matter, and gives you advice on what your legal options are. However, they are not considered to be your lawyer at this point.

Legal Representation:

Once a lawyer has officially taken on your matter, you become their client and they are your legal representative. This means they can go to court and represent you.

Instructing your lawyer

Instructing your lawyer means telling them all the facts about your case as well as what outcome you want.‌

If you feel you are being unfairly evicted, you need to instruct your lawyer to oppose your eviction. ‌Some pro bono (free) lawyers are not eviction specialists. For this reason, it is important that you have a good understanding of the entire eviction process. This will allow you to know if your lawyer is acting in your best interests. ‌If you feel your lawyer is not acting in your best interests, you should find a new lawyer.

Please read this entire guide. Fully understanding the entire eviction process will allow you to better instruct your lawyer and understand what steps to take next.

Take Action

Approach as many free legal clinics as you can

Legal advice and assistance is available to South African citizens AND non-citizens alike. However, only SA Citizens are eligible for free legal representation through Legal Aid in civil matters.

If you are an SA citizen:

Contact Legal Aid South Africa, and then as many other legal clinics as possible.

If you are not an SA Citizen:

Contact the Legal Practice Council (Cape Law Society) and then as many other legal clinics as possible.

Get proof that you are actively looking for legal representation

Being able to prove in court that you made an effort to find legal representation is very important when seeking a postponement to your case. Be sure to get written responses from any legal clinics that you approach, and keep records of all communication. If you do not appear to have made an effort, the judge or magistrate may not grant you a postponement.

Read this guide and attend an Advice Assembly

In order to instruct your lawyer properly, you need to understand the eviction process. Be sure to read this entire guide and, attend an Advice Assembly, if you can. Speaking to people who have been through an eviction before will help you instruct your lawyer and understand what is going on in your case. You do not have to do this alone!

Follow up with law clinics

If you are waiting to hear back from a law clinic regarding legal representation, follow up with them regularly. Email or phone them, or go to their offices in person and request an update on your case. Putting pressure on them can speed up the process and mean that you find legal representation faster.

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your right to emergency housing