Purportedly, the earliest lawyers were translators and interpreters, who merely interpreted legal codes on behalf of the unsophisticated, illiterate masses. These “interpreters” later evolved into lawyers.
In South Africa attorneys and advocates are charged with the duty of ensuring that members of the public can protect and defend their rights based on an understanding and interpretation of our laws. This presupposes that law graduates must have mastered skills which include problem-solving, language proficiency, understandingthe application of legal principles, analysis and research.
They must not only know the law, they must also interpret and apply it to a client’s particular situation. Simply put: people brief lawyers to represent them and speak — or write — on their behalf.
Earlier this week, Max Boqwana and Peter Horn, the co-chairs of the Law Society of South Africa (LSSA), welcomed the research findings on the LLB curriculum by the Council on Higher Education (CHE). However, the LSSA reiterated its concern that a substantial number of our law graduates lack essential skills such as research, computer work, literacy and numeracy.
These graduates place a great burden on the attorneys’ profession, which must provide training in these skills, which takes up the time and funding that could have been used to strengthen the legal transactional skills required in the attorneys’ profession. Clients are at risk if new legal practitioners are not properly equipped to assist them. This, in turn, impacts negatively on access to justice .
From the CHE findings, it appears that in general, and as the LSSA has maintained for some time, law graduates are not adequately equipped to practice law. A gradual decline in skills over time also appears to have taken place.
We at the LSSA are at the coalface of receiving graduates into the profession. At the School for Legal Practice’s 10 centres , we train about 1 000 law graduates a year to prepare them to become attorneys.
The legal profession cannot afford the luxury of producing law graduates who find it difficult, in the first place, to enter the profession and, secondly, cannot remain competitive within the profession. Members of the public deserve to be represented and advised by competent, professional and effective legal practitioners.
For this reason the LSSA made submissions to the CHE during the research phase on the LLB curriculum research. We stressed that the most important skills that should be attained by law graduates are those listed above. We also emphasised the importance of developing a sound understanding of legal ethics, constitutionalism and social context.
Graduates in our unique society must be aware of their ethical duties to clients and constitutional imperatives, and they must have a profound appreciation of the socio-political and economic contexts in which we, as a society, function. However, this will only have practical meaning if new lawyers know how to apply legal principles in practice.
As regards legal topics, most faculties include in their curriculum the theoretical learning areas that are regarded as necessary for attorneys by the LSSA. However, there appears to be a lack of consensus on the skills that are needed.
The need for a core curriculum has been raised and, even if consensus is reached about the focus some content should enjoy at all law faculties, this still does not guarantee the quality of tuition. This is a very high priority which the CHE, the department of higher education and the law faculties must address.
In addition, the disparity between faculties, in particular as far as the depth of tuition is concerned, is noticeable. Some law faculties off er eight times more practical skills training than others, and only 10 of the 17 law faculties offer language courses.
The attorneys’ profession respects the fact that law faculties are training their students for other vocations too. But since attorneys are the largest group of lawyers dealing with the public at a grass-roots level, the requirements of the attorneys’ profession must be high on the lists of their priorities.
The LSSA has no desire to prescribe a curriculum, only to be acknowledged meaningfully as far as the actual learning of foundational knowledge and skills is concerned. We have offered to provide universities with our expectations for the knowledge requirements for law graduates. We believe that the profession is entitled to assume that that knowledge is in place when we receive graduates into the profession.
Ideally, the broader profession, the judiciary and the National Prosecuting Authority should all be involved in the accreditation of the LLB curriculum to determine whether the provisions are appropriate for practice. We are pleased to note that the draft Legal Practice Bill published by the justice department makes provision for this.
For its part, the LSSA, with the financial assistance of the Attorneys’ Fidelity Fund, will continue to make meaningful interventions through its vocational training initiatives to improve the quality of academic tuition of those law graduates who enter the ranks of the attorneys’ profession. Graduates attending the Law Society’s schools are heavily subsidised by the fund — to the tune of about R2-million a year.
These candidates and candidate attorneys who attend the courses and training provided by the LSSA’s legal education and development division (Lead) are assessed for basic skills, including computer, literacy and numeracy skills, and, where necessary, remedial training is provided. This is also sponsored by the fund.
More than 80% of the candidates at the LSSA’s schools are black and almost half are women. But the profession cannot devote more time to basic and remedial training to law graduates. They need to be trained also in legal practice skills.
We will continue to engage law faculties and the CHE on this issue so that, in the final analysis, the best interests of the public are served by well-qualified, well-trained and professional legal practitioners.
All this must be considered against the background of two stark realities: First, a large proportion of our community comes from a poor background and, as a result, many law students face great financial difficulty during their student years and during their vocational training. Secondly, it is apparent that a number of law faculties do not have access to the same teaching capacity and educational infrastructure as others. This impacts on the graduates.
We do not apportion blame to anyone specifically. Together we must identify the problems and deal with them decisively in the best interests of our country.
Nic Swart is the director of legal education and development in the Law Society of South Africa