LEGAL SYSTEM AND LEGAL EDUCATION IN SOUTHERN AFRICA: AN OVERVIEW OF PAST INFLUENCES AND CURRENT CHALLENGES

Philip F. Iya, University of Fort Hare, Republic of South Africa

 

 

 

1.         INTRODUCTION

This submission is based on the hypothesis that to understand the present and plan for the future, it is important to study the past.  For that reason, and addressing the understanding of the legal system and legal education in Southern Africa as they exist today and as dynamically developing systems, we need to investigate and establish where the systems come from and how they have developed (and will probably develop further).  Such an approach will engage us in the application of the historical process to the discussion on the system of law and legal education, the benefit of which is to derive a basic understanding of their structures, systems and social functions as they continue to struggle finding the best way to fulfill those functions in future. 

 

To achieve the above objective, the discussion in this memorandum focuses and highlights the following issues:

a)      South Africa's legal system: historical influences and current challenges;

b)      South Africa's system of legal education: historical influences and current challenges;

c)      Cross-border perspectives with an overview of the position in SADCX countries; and

d)      Conclusions with brief analysis of the challenges in the 21^st century.

 

By raising pertinent issues emerging from the above themes and sub-themes, it is hoped that those who may not be aware of or involved in the processes of the dynamic systems of law and legal education will not only benefit from the exposition but will join in the debate on a better system of legal education in Southern Africa during this new millenium and beyond.

 

2. SOUTH AFRICA'S LEGAL SYSTEM

2.1              Historical Influences

We share the view that a legal system is usually one of the cultural products of a community and is, like the community itself, the product of its history.  For that reason, the same factors whether political, geographical, religious or cultural that have contributed to the formation of the community, also have a share in the development of the legal system concerned.1 In the case of South Africa, the significant road marks in the historical path started unfolding in 1652 when Jan van Riebeeck arrived at the Cape and introduced Roman-Dutch Law, a European or Western legal system.    At that stage, there were already black people present in South Africa who lived according to their own African legal system now popularly referred to as African Customary Law or Indigenous Law.2

 

In the early 1800s, the British took over the administration of the Cape from the Dutch and introduced and applied English law.  This led to the influence of English law, although Roman-Dutch law continued to develop.  That there would be a greater move towards English legal institutions is hardly surprising in view of the fact that the Cape became a British colony.  Contact with and sympathy towards English institutions could only lead logically to greater contact with the English common law. 

 

Then arrived the Arabs, Indians, Christian missionaries, Jews etc., who introduced various religious laws: namely, Islamic, Hindu, Christian and Jewish law respectively.  A fuller history of South African law provides dynamic intricacies of the development of the law, details of which need no further analysis here.3

 

2.2              Current Challenges

One often hears a statement like: the legal system in South Africa is Roman-Dutch law.  This is not absolutely correct because as observed above, Roman-Dutch law forms only a part of the legal system of the country. English law also exercises its influence in its application especially to public law issues including legal institutions and the legal profession, just as much as customary law continues to influence the conduct of the majority blacks in South Africa.  Therefore, it is more correct, when referring to the current legal system of the country as a whole that is applied, simply to speak of "South African Law",4 a conglomeration of all the above different laws.

 

Another set of terms often used to describe the South African legal system relate to its being either plural or dual.5  Legal pluralism, the basis of which is the presence of different cultural or religious groups each with its own legal system, is the coexistence of those legal systems in the same country.  Not only is this the case in South Africa, but one finds also in the same country legal duality reflecting the coexistence of indigenous African law(s) with the law derived from the Western European tradition or cultures.  Legal dualism presupposes a measure of equality between the two coexisting systems of law.  Western systems in terms of their respective common law, is the dominant or general legal system as evidenced by, amongst others, the so-called repugnancy clause.6  Legal pluralism also presents its complications in that the form of plurality is not only prevalent between Western law, on the one hand, and African law, on the other, but one also finds plurality within the greater body of African or indigenous law.

 

The greatest challenge therefore, facing the legal system in South African in the new millenium is the issue of legal integration in terms of whether the future development of the system will focus on unification or separate development of the system. 

 

Equally contentious with serious emerging challenges are related issues to the legal system namely:

(a)                Issue of the current sources of the law in terms of primary and secondary source; For example in South Africa, there is a heated debate as to whether customary law is or should be a primary or secondary source of law.

(b)               Issues of the current court structure in terms of superior and inferior courts.  There is an ongoing debate about transformation not only of the court structures but also of the court personnel.

(c)                Issues of the structure and functions of the legal profession in terms, for example,  of whether South Africa should move away from a "divided" to a "fused" profession and what the future role in society of the legal profession should be.7

It is in the above context that one needs to place on the agenda for further discussion in the memorandum issues relating to legal education which produces the professionals to function in the same legal system.

 

3. SOUTH AFRICA'S SYSTEM OF LEGAL EDUCATION

3.1              Historical Influences

The concern for and debate on issues of quality legal education in South Africa cannot be addressed without a brief overview of the influences that are in many ways traceable to centuries of colonialism and the oppressive policies of apartheid that characterised the system.  More important is the current legacy of apartheid ideology, which has provided the framework for structuring the education system after 1948.  Starting with the Bantu Education Act of 1953, all education in South Africa was officially divided along racial and ethnic lines to reinforce the dominance of white rule by excluding blacks from quality academic education and technical training.  The extension of the University Education Act of 1959 which established racially based universities, applied this ideology to higher education.  Not only entry to universities was formally restricted on the basis of race, black people, if at all admitted to white universities, had to get special ministerial permits certifying that no equivalent programmes were offered at black universities.  This led to the establishment in the early 1980's of several universities in the independent "homelands" to service further the needs of separate development.

 

In view of the fact that the higher education system in South Africa was for years structured and developed along separate lines, the new democratic government, ushered in by the new constitutional dispensation and election in 1994, took it upon itself to urgently restructure it to achieve the goals of democracy.  The establishment by the President in 1996 of the Council of Higher Education and introduction of the "White Paper" on higher education in 1997 are examples of that concerted effort.  The demand for treating higher institutions of learning uniformly and the need to work towards certain universal standards of development were placed high on the agenda of social transformation by the new government.  Equally serious attention was directed to the system of legal education as evidenced by the establishment in 1994 by the Minister of Justice of a National Consultative forum to consider and advise the Minister on the transformation and democratisation of the institutions of justice, including legal education.  It is this forum which served as a catalyst and drove the process that led to the enactment and implementation of the Qualification of Legal Practitioners Amendment Act, 1997.8

 

In the history of the system of legal education in South Africa, this Act clearly stands out as a remarkable milestone in transforming legal education along democratic principles.  It is instrumental in amending all apartheid laws and provides for "the requirements of a universal legal qualification in order to be admitted and enrolled to practise as an advocate or attorney; and to provide for matters connected therewith." 9  The current system of legal education in South Africa is, therefore, based on the provisions of this Act.

 

3.2              CURRENT CHALLENGES

3.2.1        Law Schools/Faculties

There are 20 law schools/faculties, one in each of the well established public universities of South Africa.10 The point of concern about these universities and their law schools is that, due to historical reasons discussed above, one finds a conspicuous division which has been and still remains to this day, of Historically White Universities (HWUs) and Historically Black Universities (HBUs).  This division into white and black universities conceals the true nature of tertiary legal education since even white universities are generally divided into Afrikaans and English speaking universities while black universities have also been divided into African, Indian and Coloured universities.  The greatest challenge now is how to eradicate these divisions when white universities continue to be well resourced, provide better quality legal education, attract higher student numbers and demonstrate strong Euro-centric focus.11

 

3.2.2        Law Programmes

The effect of the Qualification of Legal Practitioners Amendment Act, 1997 was in practical terms to force all law schools in South Africa to introduce a four-year undergraduate LL.B degree programme for admission to all branches of the legal profession.  The implementation of this law took effect in January 1998 by which time most law schools had started the new LL.B programme.  Today the programme is offered by all 20 law schools.  Prior to 1998, the law programme was characterised by what was called " the leader system" consisting of the undergraduate three-year Bachelor of Law (B.Juris) degree, the holders of which qualify for limited practice mostly as prosecutors and magistrates; the four-year undergraduate Baccalaureus Procuratonis (B.Proc) degree, the holders of which qualify to practice at most as attorneys; and the three-year post-graduate Bachelor of Laws (LL.B) degree, the graduate of which qualify to practice as advocates.  Other post graduate degrees such as the postgraduate degree in Law, the Masters and the Ph.D/LL.D degrees also formed part of that programme.

 

From 1998 "The Leader system" was replaced by the four-year under graduate LL.B thus bringing South Africa in line with the majority of Commonwealth universities.  However, transitional arrangements are in place to enable students registered to pursue the old programmes to complete them which in effect means that all law schools now offer:  (a)  The new 4 year LL.B; (b)  The B.Juris  (c)The B.Proc  (d)  The Postgraduate LL.B; and (e)  Other Postgraduate programmes in specialised areas (Postgraduate Diploma, the LL.M, Mphil, Ph.D and LL.D). All these programmes are offered at both full-time and part-time basis, depending on the needs of the students.  With particular reference to the determination of the curriculum, the point to note is that the content of the new degree was discussed by the law deans of South Africa's universities law schools at a number of legal fora prior to the introduction of the new degree.  In April 1997, for example, the deans agreed that in formulating curricula and deciding on course content, all law schools and law teachers should: (a) take into account that South African Law exists in and applies to a pluralistic society; (b) endeavor to ensure that students acquire skills appropriate to the practice of law; and, (c) strive to inculcate ethical values.  By so suggesting, the intention was to instill a new culture of teaching and learning.  The final authority to approve all law and curricula vests in the South African Qualifications Authority (SAQA) established under Section 3 of the South African Qualifications Authority Act No.58 of 1995.

 

Finally law schools today face the challenge of implementing major changes to ensure that they keep pace with domestic, regional and global trends.  In that regard, the need for entering collaborative partnerships cannot be over-emphasised.  Equally critical is the need for restructuring as a major project in this millenium if they want to realise their mission of maintaining and enhancing themselves as quality institutions of excellence in learning, teaching and research.

 

3.2.3        Student Profile12

To get correct indicators of law students' profile, one has to look at a number of factors, which influence such a profile.  In the first place, the HWUs and HBUs factor plays a major role in determining the economic background of the law students: those in HBUs originate from poor and rural families while those in HWUs derive from middle/upper class families.  Secondly, the majority of law students join undergraduate programmes (new LL.B and previously the B.Juris and B.Proc) direct from high schools.  The capacity to effectively pursue and successfully complete their studies are determined by the background of their education in that those from Bantu education systems find themselves at high risk as opposed to those from "model c"  (private) or white public high schools.  Thirdly, there are those who join the postgraduate programmes with a common profile i.e., being in possession of another degree.  Also important to note is the fact that while law schools are associated with young high school leavers building a foundation for their future, it is not uncommon to find middle aged and mature students some of whom are devoted to postgraduate research programmes while a number are retraining for new careers through undergraduate law programmes.

 

Another aspect of student profile is based on the introduction by some law schools of outreach programmes to achieve accessibility and relevance of legal education to the broader community.  This is characterised by allowing for distance learning and evening classes all of which have attracted large numbers of students especially from those already in employment.  The curriculum for clinical programmes forms part of this outreach activities in terms of providing legal aid.

 

The general rule is that first year law students are admitted on academic grounds based on matriculation examination obtained after high school (standard 10 or grade 12).  Students for the post LL.B degrees are also selected on academic criteria, although in some cases past disadvantage and equitable considerations (affirmative action) influence the selection process.

 

As to number of students pursuing law studies, there is currently an interesting trend based on institutional types, modes of instruction and historical categorisation.  According to the most recent research conducted by the Council for Higher Education, between 1994 and 1999, enrolment of African students in historically black universities has sharply decreased while those in technikons and historically white universities rose by 94%.13 This trend is particularly noticeable in the law schools.  The report, however, concludes that the changes in the overall proportions of black students (moving to white institutions) are signs of equity improvements in the higher education system beginning to become representative of South Africa's overall population.  "Whether this has occurred due to a vigorous affirmative action policy or due to black students filling the vacuum left by whites who have left the public system (for quality private institutions) must remain an open question", the report notes.14

 

3.2.4        Faculty Profile15

As clearly observed by the Council for Higher Education, the academic staff of South Africa's public institutions of higher learning are still overwhelmingly white and male dominated in that: 80% of the academic staff at universities and 72% at technikons are white; women make up 38% of professional staff while 90% of professors, 78% of associate professors and 67% of senior lecturers are male; blacks (African, Coloured and Indian) in historically white Afrikaans universities has remained at 3%; however, a very rapid rise in the proportion of African academics  occurred at black institutions of higher learning (from 17% in 1993 to 49% in 1998).  These figures to a large extent reflect the position in the various law schools of South Africa.

 

While the above is an apparent reflection of the evils of apartheid, there is at the same time a "loosening" and "eroding" in the position as a move is being made towards equality.  For example, between 1992 and1998 the proportion of women academics rose from 30% to 32% at historically white universities and from 30% to 37% at historically black universities.  The situation will only be equitable if the imbalances outlined above are eradicated or minimised further.

 

3.2.5        From Law School to Practice

Most law students upon graduation proceed to pursue practical training in one of the seven Schools of Legal Practice located in different parts of the country.  This process is followed by sitting the professional examination to join the attorneys profession.  There are Bar Examinations for those intending to join the Advocates profession.  In addition to the option of taking up legal practice as a career, law students can also choose either a career as commercial legal advisors in corporate bodies or as academics, pubic interest lawyers, careers unrelated to law etc.

 

4.CROSS BORDER INFLUENCES - THE POSITION IN THE SADC COUNTRIES

 

The historical origins of the Southern Africa Development Community (SADC) go back to 1975 when five frontline states of Angola, Botswana, Mozambique, Tanzania and Zambia grouped themselves to secure the liberation of Zimbabwe.  In 1980 it transformed itself into the Southern Africa Development Cooperation Conference (SADCC) bringing together some 10 Southern African countries with a primary emphasis to regionally cooperate in reducing economic independence on the then apartheid South Africa.  In 1992 the body, after further review, reconstituted itself into Southern Africa Development Community whose membership continued to expand to include South Africa joining in 1994, Mauritius in 1995 and Democratic Republic of Congo in 1997.  The transformation meant that the regional body graduated from performing merely a coordinating role of sectional economic projects to facilitating trade and encouraging other efforts towards integration and cooperation in various fields.

 

The complexity in the area of legal integration and cooperation arises from the different legal systems operating in respective member country.  Roman-Dutch Common Law system operates in countries such as South Africa, Swaziland, Lesotho, Botswana and Zimbabwe; the English Common Law in Zambia, Tanzania and Mauritius and the Continental (European) Civil Code system in those countries formerly colonised by the Portuguese (Angola and Mozambique) and the French (DRC).  The adoption of the Southern Africa Development Community Declaration and Treaty in 1992 provides the legal framework within which to develop areas of cooperation and integration on issues relating to the legal system and legal education in the region.  Discussions in this respect take place at various fora including summits of heads of states, ministerial conferences, conferences of universities e.g., the Southern Africa Universities Social Science Conference (SAUSSC) and the Society of Law Teachers of Southern Africa. There are various inter-law school cooperation initiatives being pursued

 

5. CONCLUSIONS WITH RECOMMENDATIONS ON CHALLENGES FOR THE 21^ST CENTURY

 

Among the many  challenges facing South Africa is the deeply rooted concern for decolonising the legal system, and in the same vein, the system of legal education, so as to ensure that the legacy of apartheid does not linger on into the 21^st century.  Issues of access to justice and to the legal profession, the eurocentric nature of current law curricula, control of the profession by the privileged few and a host of others remain typical edifices of that legacy against which the protracted struggles and reform ammunitions have to be directed.

 

The present analysis confirms that while some successes have been achieved in that struggle, there still exists a prima facie case that there are serious hurdles to be overcome during the 21^st century.  The need to explore other alternatives as a response and a measure to attain well-founded social values and needs remains an integral part of the new agenda for this millennium.

 

While various legal institutions, especially law faculties/departments of universities in South Africa, and elsewhere in the region are considering how and when to restructure their law programmes to reflect the new demands of nation building and development generally, those efforts to generate and share knowledge with others have to be directed towards establishing a culture of legal education and training must ultimately be people-centred, aimed at improving their conditions as human beings.16