/ 26 June 2015

Shake-up on cards for legal education

The Council on Higher Education’s draft review of prescribed minimum standards for the bachelor of laws degree in South Africa will be released soon.
The Council on Higher Education’s draft review of prescribed minimum standards for the bachelor of laws degree in South Africa will be released soon.

The contentious issue of the quality of legal education in South Africa may soon be finally ironed out as the Council on Higher Education (CHE) completes its review of the standards for the bachelor of laws (LLB) degree.

The review has been a long time coming and is expected to provide some clarity to students on whether they need to brace themselves for a five-year programme, as has been suggested in some quarters.

Law schools can also expect finality on the minimum standards their programmes are expected to meet, although the review may not be prescriptive on how they meet those standards. This could mean that the four-year programme is retained, but it is not the only option available.

The debate has its roots in the 1998 decision to introduce a four-year undergraduate programme to ease entry into the profession and transform a sector seen as the preserve of privileged, mainly white candidates. Concerns were raised shortly there-after that the abbreviated programme was producing inadequately trained legal practitioners.

A process was initiated by the CHE in 2010 to address these concerns by investigating the effectiveness of the undergraduate course. On completion, the CHE decided not to release the results as it was believed the study was lacking in quality.

Fast forward to May 2013 when the South African Law Deans Association, the Law Society of South Africa and the General Council of the Bar of South Africa hosted the LLB Summit to develop workable solutions. The summit attracted representatives from the profession, academia, students and the justice department.

One of the main outcomes of this gathering was the decision to ask the CHE to conduct a standard-setting exercise, which was expected to be completed by mid-2014. A year beyond that deadline, it is now putting the final touches to its review.

Professor Vivienne Lawack, a former president of the Law Deans Association, says it has been an extensive research and consultative process that involved the initial draft standards being presented to academic and professional stakeholders in a regional roadshow late last year.

All stakeholders were given the opportunity to offer commentary on the draft standards, which is what the CHE is currently incorporating into its final draft.

This document will also include an assessment of individual universities’ law curriculums and the adjustments they will need to make to meet the minimum prescribed standards.

“Before the 2013 summit, there had been a long engagement with the profession — but it was often more about apportioning blame,” says Lawack. “What we managed to get right was to get the profession to work with us. One of the important things that has also emerged is that there is an understanding that the universities will be responsible for the education part, and the vocational part of training will be provided by the profession.”

Nic Swart, chief executive of the Law Society of South Africa and its director of legal education and development, describes this period as the “most positive, progressive two years” in the debate about legal qualifications.

“We have a situation where the law faculties are saying let’s listen to the profession about their needs in terms of graduates’ knowledge and competence. Most importantly, there was no denial about the validity of the quality concerns and there was clear consensus that there was an issue.”

Although it has taken more than two years for the CHE review to emerge, the involvement of the Law Deans Association and universities throughout the process means there are unlikely to be any surprises. 

In some cases, such as at the University of the Witwatersrand, pre-emptive action has already been taken. The head of the Wits law school, Professor Vinodh Jaichand, says the question of course duration had been intensely debated within the institution, leading to the decision to discontinue its undergraduate LLB degree in April 2014 and to offer the LLB only as a post-graduate course.

“Law is a complex business and deals with very detailed internal affairs of people’s lives. This requires a well-rounded education from people who are able to think of legal principles and how they belong in our society,” Jaichand says.

This decision was also based on Wits’ experience with the four-year LLB course, in which only 30% of students completed the degree in four years. The remainder took five or more years, and 40% never completed the degree.

Jaichand adds that the focus, therefore, is on producing graduates who have a well-rounded education that prepares them to go into law. He says only about half of graduates end up in practice, with others taking up corporate legal positions or joining the justice system.

The Wits decision was roundly criticised by the South African Students Congress, which said it would entrench the exclusion of disadvantaged students due to the added financial burden and the “ridiculous and unrealistic requirements to do the LLB as a postgraduate qualification”.

The one issue that is not covered by the CHE review, or is directly within the control of either academic institutions or the profession, is that of funding for legal education programmes.

Wits and other established universities have the upper hand over their poorer counterparts as they are able to offer the sound learning required, but also provide practical learning through their law clinics.

Jaichand says these facilities play a critical role as a legal laboratory and provide practical experience in the practice of law. He admits that Wits students are privileged to have this resource available to them, but that it is an expensive exercise.

Both he and Swart lament the low levels of funding that law schools receive from government.

This is a pain that is felt most acutely at the already under-resourced secondary universities, which are often seen as the feeders of new legal talent from disadvantaged and rural communities.

The CHE standards can go only so far in improving the quality of legal education, with further dialogue needed to tackle the question of the financial resources available to universities.