/ 20 May 2024

Legal education threatened as supreme court of appeal cuts financial lifeline for students

Problematic: Changes to South Africa's immigration laws have resulted in a sharp drop in the number of foreign students applying to study at universities in the country.

The supreme court of appeal has recently supported the National Student Financial Aid Scheme (NSFAS) policy decision not to fund second undergraduate and postgraduate degrees. BA (Law) and BCom (Law) graduates who intend to pursue a Bachelor of Laws (LLB) as a second degree will be hard hit by this decision, and the decision may also have unintended consequences for legal education. 

Lawyers play a pivotal role in the justice system and our constitutional democracy, which is underscored by legal education. A lawyer’s formative training is found in the LLB degree, which is also one of the prerequisites in practising law.

The importance of legal education, and particularly the LLB, was assessed when South Africa became a democracy and was overhauled from a five-year to a four-year programme under the Qualification of Legal Practitioners Amendment Act 78 of 1997. The motivation for some of these changes was to increase the accessibility and affordability of the LLB by reducing the duration of the qualification. 

The four-year LLB faced much criticism about whether it was “fit for purpose” and provided the necessary and suitable skills for law graduates to function in the legal sector. Many of these reservations, challenges and criticisms linger to this day. Although it is possible to study a four-year LLB, it is not uncommon for students to complete a BA (Law) or a BCom (Law) before pursuing the LLB as a postgraduate degree. This route is often encouraged to provide a wider and more rounded educational grounding for law graduates. 

Regardless of the degree being pursued, the cost of legal education is, however, still not attainable for many students. In this context, NSFAS plays an important role in equal access to education for students and manages a bursary programme to support students in pursuing their studies at higher education institutions.

Although NSFAS has had its share of controversy, with allegations of mismanagement amid fears of financial sustainability, it remains one of the primary sources, if not the only source, for many students, to study at universities and, consequently, a lifeline for a better future. NSFAS has, historically, financially assisted BA (Law) and BCom (Law) graduates who subsequently pursued an LLB as a second degree. 

This changed in 2021 when the department of higher education and training issued the Guidelines for the Department of Higher Education and Training Bursary Scheme for Students at Public Universities, which confirmed that NFSAS would not fund any second undergraduate or postgraduate degrees. This change was largely the result of budget constraints, which were exacerbated by the financial difficulties created by the Covid-19 pandemic.

Since then, the 2022, 2023 and 2024 NSFAS Eligibility Criteria and Conditions for Financial Aid Policy Standard has consistently confirmed that NFSAS will not provide financial assistance to a “student that has achieved an undergraduate qualification who wants to study a second undergraduate qualification”. In the context of legal education, BA (Law) and BCom (Law) graduates will generally not, under these policy standards, be able to receive funding assistance in pursuing an LLB as a second degree.

It is against this background that the recent matter of National Student Financial Aid Scheme v Moloi and Others becomes important in the future functioning of legal education.

This matter concerned three students from the University of the Witwatersrand who challenged the defunding of the LLB as a second degree under the 2021 guidelines. They argued that they had a legitimate expectation of funding based on previous guidelines and sought a judicial review of the decision not to provide funding for the LLB as a second degree. 

Here, the high court emphasised the importance of considering the LLB in its historical context and its function in the legal profession. The LLB is the gateway to practising law and the educational foundation for the legal profession, and the court found that the decision to exclude the LLB as a second degree from funding was irrational and inconsistent with NSFAS’s objective of supporting deserving students. 

But the supreme court of appeal has recently overturned this decision and found that the eligibility criteria was reasonable. Although the court recognised that such a decision could appear harsh, prioritising first-time entry students over those seeking a second qualification was deemed reasonable.

This is especially the case in the context of ongoing problems in the country, including the aftermath of Covid-19, economic and financial pressures, and increased number of financially disadvantaged students. Ultimately, the court viewed the prioritisation of funding first degrees was not a disproportionate measure given the circumstances. 

Although an argument can be made that this decision is aligned with NSFAS’s core values of social justice, being that of “fair distribution of resources to eligible students”, the supreme court of appeal’s decision will probably have unintended consequences for legal education, including discouraging students from pursuing BA (Law) and BCom (Law) degrees as a first degree which, in turn, may negatively affect the financial feasibility of university programme offerings of such qualifications.

This decision does not only cut the financial lifeline for many law students, but it may also have more far-reaching implications for legal education. The BA (Law) and BCom (Law) degrees are seen as positively adding to a law graduate’s knowledge, abilities and skills and, in turn, may be viewed as a form of addressing some of the shortcomings of the LLB. If no funding is available to pursue an LLB as a second degree, it may be necessary, under these circumstances, to reconsider the approach to legal education within the context of this policy position. 

We must recognise that the structure of the current LLB served as an important transitionary approach to legal education in the country. 

But the supreme court of appeal’s decision also provides an opportunity to reexamine the structure and approach of legal education, which may include assessing the structure of BA (Law) and BCom (Law) degrees as well as whether the LLB, in its current form, remains “fit for purpose” for the future of the legal profession within our constitutional democracy. 

Professor Michele van Eck is an associate professor and head of the Department of Private Law at the University of Johannesburg. She writes in her personal capacity.