STRUCTURE OF LEGAL EDUCATION IN SOUTH AFRICA
John B. Kaburise*, University of South Africa, South
Africa
(a) Historical Overview1
From the late 18th
century, the British administration preserved the Roman-Dutch law even as it
proceeded to introduce the English common law and to anglicise legal process in
South Africa, beginning with the then Cape Colony.
On the first day of 1828
the First [British] Charter of Justice (1827) was implemented and, together
with Second Charter of Justice, brought about sweeping changes in the
administration of justice in the Cape Colony, including the establishment of
the Cape supreme Court. Thenceforth, it
was proclaimed, advocates would have to be recruited from among the members of
the English, Scottish and Irish inns of court or from graduates of the
universities of Oxford, Cambridge and Dublin.
Judges in turn were to be appointed solely from the ranks of the
advocates.
However, the British
government refused to countenance the direct imposition of the English common
law. The existing substantive
Roman-Dutch law, particularly in the fields of
property, contracts and wills, it was argued, was adequate to meet the
needs of the community.
Following a national
convention in 1908, the four southern African colonies of Great Britain, namely
the Cape Colony, Transvaal, Orange River Colony and Natal, decided to
relinquish their sovereign rights and unify.
The Roman-Dutch law prevailing in all four colonies at that time
undoubtedly acted as a unifying influence.
Union came on 31 May 1910 and was achieved by the Union of South Africa
Act of 1909. This Act constituted the
Union of South Africa as a union with legislative powers under the British
crown.
The first provisions for
the teaching of law in the Cape Colony was only promulgated in 1858. In the
1858 Act provision was made for the issue of certificates of competency in law
and jurisprudence. Subsequent progress in the teaching of law can hardly be
described as meteoric. A glance at the
1875 syllabus for the degree of Bachelor of Laws at the University of the Cape
of Good Hope shows that provision was made for English law as well as Roman
law, Dutch and Colonial law.
The editors of
Introduction to South African Law and Legal Theory have remarked that the
inescapable fact however was that, at the time of Union in 1910, law was being
taught at some
of the university
colleges by practising members of the legal profession who could not be
expected to devote all their time to teaching, nor to take the lead in the
scientific training of jurists.
It was not until after
1916, following the creation of the fully autonomous Universities of Cape Town
and Stellenbosch, that one could discern a movement towards the scientific study
of law in South Africa, and conversely a reversal of the trend towards English
law. The appointment of Professors
Bodenstein and Malherbe to chairs of law at Stellenbosch in 1921 heralded the
emergence of the first Afrikaans-speaking law faculty in South Africa, an event
of great significance. These full-time
professors, along with their English-speaking counterparts at Cape Town, namely
Professors George Wille, J Kerr Wylie and Eric Emmett, inaugurated the trend
towards the scientific study of law with a view to its practical
application. They wrote critically on
the practice of South African law, always with a view towards the achievement
of a law based more solidly on Roman-Dutch principles.
(b) Contemporary
Situation
The structure of legal
education in the Republic of South Africa is undergoing a process of
transformation in response to the significant political changes that have
occurred in the country over the past six years. Like everything else in South
Africa, legal education reflected the apartheid-pattern skewed system of
allocation of national resources along racial lines. Entry to, and therefore
membership of, the legal profession was far from reflective of the demographic
profile of the country. Before 1997, it took on average seven years (often
longer) for a person to qualify to be a lawyer in South Africa. Research in
1994 established the following facts about the provision of legal education in
South Africa:
{The expression HBU
refers to the so-called Historically Black Universities; and HWU refers to the
Historically-White Universities.}
FACT 1:
There are twenty-one
(21) Law Faculties/Schools in the Republic of South Africa. Of these,
twenty(20) are residential -- UNISA is non-residential.
1. Cape Town - White + 20%? Black
2. Western Cape - Black
3. Stellenbosch - White + 5%? Black
4. Port Elizabeth - White + 5%? Black
5. Rhodes - White + 20%? Black
6. Fort Hare - Black
7. Transkei - Black
8. Natal [Durban] - White + 40%? Black
9. Natal [Pietermaritzburg] - White + 20%? Black
10.
Durban-Westville - Black
11.
Zululand - Black
12.
Orange Free State - White + 5%? Black
13.
Potchefstroom - White + 5%? Black
14.
Rand Afrikaans - White + 5%? Black
15.
Witwatersrand - White + 20%? Black
16.
Pretoria - White + 5%? Black
17.
North - Black
18. Venda - Black
19.
Unibo ( North-West) - Black
20.
Vista – Black [non-residential tuition]
21.
Unisa(Univ of South Africa) - Black & White [non-residential, non-contact
instruction]
FACT 2:
The ratio of residential
law faculties/schools primarily serving the Black population group to the
number of people "they are supposed to serve" is severely skewed:
a) Of the 20 residential law
faculties/schools 9 are catering primarily for Blacks; 11 are catering
primarily for Whites [and, secondarily, also for blacks to a lesser or greater
degree]; of the latter 11 faculties/school 5 are catering primary for Afrikaans
speaking Whites;
b) Of the 20 residential law
faculties/schools 9 are primarily providing legal education to a potential 30
million of the population whilst 11 faculties/schools are providing primarily
to the rest of the population, i.e. approximately 6 million. [I.e. 45% of law faculties/school providing
legal education to approximately 80% of the population and 55% of the law
faculties/schools providing legal education to less than 20% of the
population].
FACT 3:
Apart from the obviously
skewed ratio of law faculties/schools serving the Black and the White
population groups, there are also discrepancies regarding the resourcing of the
HWU's and the HBU's;
a)
The student-staff
ratio is generally much higher at the HBU's;
b) Library resources at HBU's do not
compare at all with those at HWU's;
c) Academic
support programme at HBU's either does not exist or are totally inadequate - if
compared to support programmes offered at the HWU's;
d) Administrative support at HBU's does
not compare well with that at HWU's;
e) a)
to d) above are the direct result of the financial under-resourcing of the
State of the HBU's for the past decade; and
f)
Because of
financial under-resourcing and the geographic situation of most of the HBU's
[namely in non-metropolitan areas as opposed to most HWU's being situated in
metropolitan areas], HBU's find it difficult to attract and to retain well
qualified and experienced staff.
FACT 4:
Law faculties/schools at
the HBU's produce less than half [probably only 1/3] of the law Gaduates in SA
every year:
a) The
total number of black law graduates produced in the country every year do not
make up 1/2 of the total number of law students graduating every year;
b) Ideally
the number of black law graduates should be approximately 80% of the yearly
crop of law graduates in the country;
c) The
ratio of the number of White lawyers per 100,000 of the White population has probably
reached saturation point and probably compares favourably with the situation in
First World [developed] countries; and
d) The
ratio of the number of Black lawyers per 100,000 of the Black population is of
a relatively low order and is nowhere near the average for Third World
[developing] countries.
Against this background,
the South African Ministry of Justice convened a Legal Forum on Legal Education
in 1995 for the purpose of critically reviewing the structure and provision of
legal education with a view to devising a new system that would give expression
to the new dispensation in the country. One thing that emerged clearly at the
Forum was a consensus that there was a need for a change in the approach to
legal education in South Africa: most participants referred to the need for a
quantum leap from what existed in the past. A dominant theme in this respect
was the structure of the basic law degree
together with the need to design a form of legal education which included both
formal academic as well as practical skills training.
Discussions at the Forum
were followed by concerted consultations by a Working Group ( of which the
author was a member ). As a result of this work, a consensus was reached that a
standard legal qualification lasting four years, followed by one year practical
training, should be adopted as the norm by all South African Law Schools. The
degree was designated the LL.B; and the first intake of students into the new
degree began in the 1997 academic year.
The majority of law
students are typically senior high school graduates who performed sufficiently
well to be granted what is called fool or conditional exemption from the
matriculation examination. The current legislative provision ( which is being
reviewed ) states that:
“ A person shall be
considered for registration for a Bachelor's degree on the basis of the
following:
(a) possession of the matriculation certificate
of the Matriculation Board, or a certificate of exemption issued by the
Matriculation Board (or the Joint Matriculation Board); or
(b) possession of a
senior certificate with matriculation endorsement; or
(c) possession of a
valid certificate of conditional exemption issued by the Matriculation Board;
or
(d) possession of a
National Diploma of at least three (3) years duration; or
(e) possession of a
Senior or school-leaving certificate with matri-culation conditional exemption;
For applicants aged 23 years or older:
possession of a Senior
Certificate or equivalent, with a minimum of 'E' symbol in four (4) subjects,
at least one of which must be at higher grade (at least three of the four
subjects must have been passed at the same examination sitting);
In the case of certificates issued by
examining bodies outside the Republic of South Africa:
possession of the general certificate of
education or higher school certificate with credits in;
either five (5) subjects
including English language, at least two(2) of which shall be
at the 'advanced' level;
or (If the applicant aged 23 years or older)
four (4) subjects
including English language at least three of which must have been passed at the
same examination sitting;
the attainment of the age of 45 years before or during the first year of
study; any other qualification and/or requirements approved by Senate.
NB: Applicants who only
satisfy requirements (d) to (h) above must apply for matriculation exemption
(or conditional matriculation exemption) from the Matriculation Board on
admission.”
It is important to stress
that, for purposes of admission to the LL.B degree, these are usually
regarded as “coarse” criteria, and an
applicant would usually need to meet individual institutional “fine” criteria
of a more demanding nature. Selection is done at individual institutional
level, usually by a Law Faculty Admissions Committee which now includes student
members to assure, in part at least, fairness, equity, and transparency. Apart
from The University of South Africa (UNISA) where all students are part-time, students at the other Law
Schools/Faculties are an admixture of full-time and part-time students. The
overwhelming majority at these other Law Schools/Faculties are, however, in
full-time study. Most students are undergraduates, although there is now a
discernible number of postgraduates studying law. Most Law Schools/Faculties
offer postgraduate law degrees ( typically, the LL.M and PhD degrees ). There
is a discernible shift in the student profile that reflects more black and
female students, although it is too early yet to have a significant impact on
the profile of the legal profession
( Figures from the Schools For Legal Practice suggest that this may
occur in the not-too-distant future. See below).
Members of the teaching
staff are typically full-time academics, former students of the particular
university, with fairly even numbers of male and female ( although the latter
tend to predominate in the fairly junior ranks ). The distribution per
university still reflects racial cleavages, with whites predominating in the
HWUs and Blacks predominating in the HBUs. The levels of credentialing is also
skewed with those in the HWUs generally holding larger numbers of higher
degrees.
Each institution does
its own staff selection, but it is standard practice for selection panels,
particularly for senior appointments, to have one or two members external to
the recruiting institution. These days, most hiring is done by open
advertisement. Increasingly, the staff profile of the staff of the Law
Schools/Faculties is diversifying.
(a) The LL.B
Educational
qualifications are now governed by the provisions of the South African
Qualifications Authority Act of 1995 ( hereafter the SAQA Act ). The SAQA Act
envisages the establishment of a number of Standards Generating Boards (SGBs)
which will be responsible for generating standards and qualifications in their
fields. The SGB for Legal Education and Training is still in the process of
being established. Until that happens, the status quo remains.
Before the enactment of
the South African Qualifications Authority Act in 1995, University
Qualifications ( including the LL.B degree ) were approved by the internal
University authorities concerned. Therefore, the curriculum for the LL.B degree
was determined by the Senate of each University. In practice, however, there
has been remarkable homogeneity in these curricula. This has been a function of
the conjunction of:
- the
basic conservativism of the legal profession;
- the
practice of external examination/moderation of examinations;
- the
oversight function of the former Committee of University Principals(CUP)
and its
successor the South African Universities Vice-Chancellors Association
(SAUVCA);
- the imperatives of student
mobility and articulation of qualifications between
institutions; and
-
the continuing hold
of a culture of regimentation that dates back to the ethos of the apartheid
past of the country.
Consequently, a typical LL.B curriculum would
contain:
- Constitutional Law
- Administrative Law
- Introduction to Law/Legal
Method
- Introduction to Legal Systems
- Writing Skills
- Interpretation of Statutes
- Law of Persons
- Family Law
- Criminal Law
- Labour Law
- Mercantile Law I
- Criminal Procedure
- Law of Property
- African Customary
Law/Indigenous Law
- Law of Succession
- Civil Procedure
- Evidence
- Law of Contract
- Law of Delict
- Mercantile Law II
- Advanced Law of Contract
- Advanced Law of Delict
- Advanced Criminal Law
- Negotiable Instruments
- Specific Commercial Contracts
- An offering in International Law (in some Law Schools/Faculties
only)
These would typically be
interspersed with “Optionals /Electives” from a range like:
- Dispute Resolution
- Jurisprudence
- Law of Taxation
- Private International Law
- Roman Law
- Comparative Law
- Advanced Law of Succession and
Property
- Insurance Law
- Public International Law
- Children and the Law
- Constitutional Litigation
- Gender Law
- Etc,etc
I remark in passing that
it is baffling that given the history of the country, the nature of its
society, the centrality of land tenure to its socio-political and economic
formation, it has not been possible to get consensus in the legal community for
inclusion of the following offerings in the core LL.B curriculum:
- Legal Pluralism
- Indigenous Land Tenure
- Public International Law &
International
Trade Law, and
- Jurisprudence & Law Reform.
(b) Practical Legal
Training
The practical foundation
for the practice of law is provided by the Schools
For Legal Practice that are run by the Law Society of South Africa.
The Attorneys Act
prescribes that for admission as an attorney, a candidate must have completed a
course of vocational training and must have served a minimum of two(2) years as
an articled clerk. Upon successful completion of the School For Legal Practice
course, a candidate is credited with one of those two years of articles so that
they are able to satisfy the articles requirement by either one year’s
community service or one year’s articled clerkship.
Section 15 of the
Attorneys Act requires applicants for admission as attorneys to produce a
certificate to the effect that they have completed a vocational training
course: that is, quite apart from the possession of a recognised law degree.
One other outcome of successful completion of the School For Legal Practice is
the issuance to the successful candidate of a certificate in terms of the
Attorneys Act.
At present there are
eight(8) such schools at:
Pretoria
– Day and Night – 2 per year
Johannesburg
– Day and Night – 2 per year
Bloemfontein
– 2 Night streams per year
Cape
Town – 3 Day and 1 Night streams per year
Durban
– Day and Night – 2 per year
East
London – 2 Day streams per year
Pietersburg
– 2 Day streams per year
Port
Elizabeth – 1 Night stream per year at this stage.
Their student profile
this year is as follows:
School
for Legal Practice : 2000
RACE DAY NIGHT TOTAL
AFRICAN 56% 35% 47%
WHITE 15% 42% 26%
ASIAN 17% 16% 16%
COLOURED 12% 7% 10%
BREAKDOWN
Black 74%
White 26%
GENDER
DAY NIGHT TOTAL
MALE 51% 61% 55%
FEMALE 49% 39% 45%
The curriculum followed at the Schools For Legal Practice is uniform
and is as follows:
|
MODULE
1 : INTRO CRIMINAL COUR PRACTICE, HUMAN RIGHTS AND
ETHICS |
|
(24,5 Sessions) Introduction to the Profession Criminal
Court Pratice and Advocay Effective
Writing Workiship 1 Establishment
of firms Constitutional
Practice Professional
Conduct
Examination : 3 papers |
MODULE 2 : CIVIL
PRACTICE
|
||
|
Part 1: Court
Procedures (20 Sessions) Intro to Civil
Practice Legal Costs Magistrates’ Court
Practice High Court Practice Alternative Dispute
Resolution Examination (3 papers) |
Part 2: Applied Topics (14 Sessions) Insolvency Procedures Motor Vehicle Acc
Claims Matrimonial Matters
and Divorce Examination (3 papers) |
Part 3 : Focus on
Court Skills (10 Sessions) Effective writing :
Workshop 2 Pleadings and mock
trials : ·
Magistrate’s
Court Practice ·
Pleadings and
mock trails : ·
* High Court
Practice ·
Assessment on
practical work |
MODULE 3 :
COMMERCIAL PRACTICE
|
|
(20 Sessions) Effective Legal Writing : Workshop 3 Wills,
Estates & Trusts Forms
of Business Enterprise Commercial
Contracts Commercial
Litigation Labour
Dispute Resolution Examination
(5 papers) |
MODULE 4 : LEGAL
PRACTICE
|
|
(18 Sessions) Legal Accountancy Aspects
of Business Management Assessment
: Evaluation team Examination
(2 papers) |
One of the areas
identified at the 1995 Legal Forum for reform was the regulation of admission
to practice law. Admission has traditionally been controlled by the organised
professional bodies: the General Council of The Bar for advocates, and the Law
Society for attorneys. For reasons that should not detain us here, most
stakeholders have been of the view that these bodies are no longer acceptable
as gate-keepers to legal practice.
Indeed a large number of Black lawyers have taken to practising outside
those frameworks.
It has now been decided
that a single statutory body should be established to regulate the practice of
law. The legislation is still to be drafted.
What Law Graduates Do2
The study of law, even
when designed only to prepare graduates for legal practice, will competently
educate graduates for other worthwhile activities
Tracer studies conducted
by the National Director of the Schools
For Legal Practice, Mr Nick Swart, suggest that approximately 50% of law
graduates in South Africa eventually enter the legal profession either as
attorneys or as advocates. Others use their legal training in business, the
civil service ( both national and provincial ), parastatal organisations, in
the state Prosecution Service, the magistracy, the Public Protector’s Department,
and in other callings such as political office-holding.
Today Roman-Dutch law still finds a place in the legal systems of several African states other than the Republic of South Africa. The following are, in outline, the antecedents of this fact:
(i) The
adoption of Roman-Dutch law (as applied in the Cape in 1891) as basic law in
Southern Rhodesia (now Zimbabwe) in 1898.
(ii) The
reception to a varying degree of Roman-Dutch law in the former high commission
territories or protectorates of southern Africa, namely Basutoland (now
Lesotho), Swaziland and Bechuanaland (now Botswana).
(iii) The
adoption of Roman-Dutch law as it applied in the Cape on 1 January 1920 in the
mandated territory of South West Africa (now Namibia).
Legal education for
Botswana, Lesotho and Swaziland used to be provided through what used to be the
University of Lesotho, Botswana and Swaziland at its Roma (Lesotho) Campus.
This arrangement came to an end in 1975, and each of those countries now has
its own Law School. Their students usually possess the matriculation or General
Certificate of Education. The usual period of study is five years leading to
the LL.B degree. Possession of the LL.B
is usually sufficient for admission to practice as an advocate. To practice as
an attorney, varying degrees of service as an articled clerk apply. The Faculty
is not substantially different from those teaching at South African Law
Schools, and it has become practice for Faculty to move from South African Law
Schools and teach at Law Schools in these other countries, and vice versa (
although the latter is more common ). With variations and adaptations to suit
local conditions, the curricula do not vary substantially from those followed
in the South African Law Schools.
REFERENCES
1 Green Paper on Higher
Education Transformation (Pretoria December 1996.)
2 A Progamme For Higher Education Transformation. Education White Paper 3.
(Pretoria Dept of Education. July 1977)
3 Higher Education Act
(No 101 of 1997)
4 Hosten WJ et al, Introduction to South African Law and Legal
Theory, 2nd Ed. Butterworths, Durban. 1995.)
4 Association of African
Universities & The World Bank,
Revitalizing Universities in Africa: Strategy and Guidelines (Washington DC
1997)
5 Legal Forum on Legal
Education. ( Cape Town, South Africa Ministry of Justice 1995 )
6 UNESCO, Report on the State of Education in Africa:
Challenges and Reconstruction.
( Dakar, Senegal.
African Regional Office 1997 ) esp. chapters IX, X & XI
7 SAQA(South African
Qualifications Authority) The SAQA Bulletin vol 2, No 2 (Nov/Dec
1997)
8 See generally, JBK Kaburise, “ The
Unrecognized Uses of Legal Education in Papua New Guinea”, 1987 VII Boston College Third World Law Journal,p
1
*
Chief Academic Administrator, Vista University, South
Africa
1 This historical account is culled from WJ Hosten et al, Introduction to South African Law and
Legal Theory, 2nd Ed. Butterworths, Durban. 1995.)
2 See generally, JBK Kaburise, “ The Unrecognized Uses of Legal Education
in Papua New Guinea”, 1987 VII Boston College Third World Law Journal, 1