TRANSFORMING LEGAL EDUCATION FOR A TRANSFORMED SOCIETY: THE CASE OF SOUTH AFRICA

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TRANSFORMING LEGAL EDUCATION FOR A TRANSFORMED
SOCIETY THE CASE OF SOUTH AFRICA

• DAVID McQUOID-MASON
• CENTRE FOR SOCIO-LEGAL STUDIES
• UNIVERSITY OF KWAZULU-NATAL

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FOCUSER

• 1994 YOU ARE DULLAH OMAR, NELSON MANDELAS
  MINISTER OF JUSTICE AFTER THE DEMISE OF APARTHEID
• YOU ARE FACED WITH THE FOLLOWING
• 85 of the legal profession is white, 85 of the
  population is black
• There are 21 law schools historically white
  well resourced and historically black
  under-resourced law schools
• There are two law degrees a post-graduate law
  degree popular with richer law students and an
  undergraduate law largely taken by black students
  who cannot afford the extra year or two years
  study
• The law curricula in the degrees focuses on
  rich persons law
• All law schools have optional law clinic or
  street law courses only available to a few
  students
• WHAT WOULD YOU DO TO CHANGE THINGS?

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INTRODUCTION

• The legal landscape in South Africa changed after
  the first democratic elections in 1994
• In order to deal with the transition from white
  minority rule to a broad-based democracy a number
  of legal forums were convened by the Ministry of
  Justice.
• The forums re-examined different aspects of legal
  practice, legal qualifications and legal
  education including the university law
  curriculum

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Legal Education Forums

• A number of special legal education forums were
  convened and attended by the law deans of the
  countrys 21 law faculties under the auspices of
  the Ministry of Justice.
• The result was that by 1997 there was agreement
  by the deans some of them reluctantly - that
  the LLB degree in South Africa should be changed
  from a three year postgraduate to a four year
  undergraduate program
• At the same time, in order to reflect the changes
  in the countrys democratic transition, the deans
  made a number of recommendations regarding the
  new law curriculum.
• There was no mandatory uniform law curriculum
  requirement and each university had the freedom
  to decide what it should include in its program
• As a result the deans could only make
  recommendations there suggestions were not
  binding

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Principles agreed by law deans

• Despite their differences the South African law
  deans were able to reach consensus that the new
  law degree should take into account that
• (a) South African law exists in and applies to a
  pluralistic society
• (b) students should acquire skills appropriate to
  the practice of law during the course of their
  degree and
• (c) law schools should strive to inculcate
  ethical values into their students
• In addition to the traditional core courses
  taught in the three year LLB programme the deans
  recommended that a number of new skills courses
  should be introduced in the four year
  undergraduate LLB degree
• The decision on which courses should be included
  in the curriculum was left to individual law
  schools

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Skills suggested by Law Deans

• In respect of skills courses the law deans
  suggested the following
• (a) analytical skills to understand the
  relationship between law and society
• (b) language skills (including indigenous
  languages)
• (c) communication and writing skills
• (d) legal ethics
• (e) cultural, race and gender sensitivity
• (f) practice management skills
• (g) accounting skills
• (h) research skills
• (i) trial advocacy skills and
• (j) computer skills
• The deans also agreed that law schools should
  encourage community service work by law students
  in law clinics and street law programs

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A break with past practices

• The major break with past practices regarding the
  LLB degree was the recognition by the law deans
  of the need for an integrated approach to legal
  education, rather than the traditional approach
  that separated the theory of law from practice.
• The deans accepted that it is not enough to
  provide students with knowledge about the law
  without developing their skills to apply such
  knowledge or inculcating them with the necessary
  values concerning the practice of law

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Rethinking the undergraduate law degree

• In recent years the South African Law Deans
  Association (SALDA) has been critical of the four
  year undergraduate LLB program largely on the
  grounds that unlike in other Commonwealth
  countries the majority of South African secondary
  school students who qualify for university
  entrance are under-prepared for legal studies
• Several law deans are now advocating for a return
  to the three year post-graduate LLB program
• This is likely to be resisted by the Ministry of
  Justice because the additional financial burden
  of an extra year of study will exclude many
  students from previously disadvantaged
  communities

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The South African Qualifications Authority exit
outcomes for the LLB degree

• The skills emphasized by the law deans for the
  revised LLB degree have been encapsulated in the
  SAQA exit level outcomes for the LLB degree and
  are listed as follows
• 1. The learner will have acquired a coherent
  understanding of, and ability to analyze
  fundamental legal concepts, principles, theories
  and their relationship to values critically
• 2. The learner will have acquired an
  understanding of relevant methods, techniques and
  strategies involved in legal research and problem
  solving in theoretical and applied situations...
• 3. The learner is able to collect, organize,
  analyze and critically evaluate information and
  evidence from a legal perspective...
• 4. The learner will have acquired the ability to
  communicate effectively in a legal environment by
  means of written, oral, persuasive methods and
  sustained discourse...

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The South African Qualifications Authority exit
outcomes for the LLB degree (continued)

• 5. The learner can solve complex and diverse
  legal problems creatively, critically, ethically
  and innovatively
• 6. The learner is able to work effectively with
  colleagues and other role players in the legal
  process as a team or group and contribute
  significantly to the group output
• 7. The learner will have acquired computer
  literacy to effectively communicate, retrieve and
  process relevant data in a legal environment
• 8. The learner is able to manage and organize her
  or his life and professional activities in the
  legal field responsibly and effectively
• 9. The learner can participate as a responsible
  citizen in the promotion of a just society and a
  democratic and constitutional state under the
  rule of law
• 10. The learner is able to understand the
  different employment and income generating
  opportunities in the legal field, including
  outside the legal profession

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SAQA assessment criteria

• The SAQA exit level outcomes for the degree
  include supporting specific outcomes and
  associated assessment criteria for each outcome
• The SAQA assessment criteria suggest that law
  students should be assessed, amongst other
  things, by performance tasks such as written and
  oral assignments, projects, case studies, moot
  courts, role plays, mock trials, client
  counseling exercises, observation and assessment
  of work in live client clinics - all with the
  emphasis on learning by doing

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Expectations of South African law students
regarding the LLB

• A simple open-ended questionnaire was distributed
  to 3rd and 4th year law students at the UKZN and
  NMMU
• Students were asked to list what they thought
  were the 7 most important courses, and the 5 most
  important skills and 5 most important values they
  would like to learn during their LLB degree
• The importance of the courses, skills and values
  was gauged by the number of times they were cited
• Preliminary results showed that the most
  important courses were similar to those
  recommended by the law deans
• Preliminary results also showed that the skills
  and values listed were similar to those
  identified by the law deans and the SAQA
• NB It was not clear from the survey whether the
  lists were wish lists or whether they reflected
  what was on offer at the universities and whether
  the skills and values were actually being taught
  at the respective institutions

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Seven most important courses

• The preliminary results of the survey showed that
  the UKZN students listed, in order of priority,
  the following courses as the seven most
  important contract, delict (tort), commercial
  law, family law, constitutional law, criminal
  procedure and civil procedure
• Likewise, the NMMU students listed, in order of
  priority contract, commercial law, property,
  criminal law, family law, delict (tort) and civil
  procedure
• The UKZN students included property, evidence and
  administrative law in the top ten courses
• The preliminary findings indicate that all the
  courses identified by the law students were the
  same as the core courses recommended by the law
  deans in 1997 during the revision of the LLB

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Five most important skills

• The preliminary results of the survey indicate
  that the UKZN students listed trial advocacy,
  research and problem solving, legal writing,
  dealing with ethical issues and litigation skills
  as the five most important skills they would like
  to learn during the LLB
• The NMMU students listed trial advocacy, research
  and problem solving, legal writing, interviewing
  and counseling and litigation as the five most
  important skills they wanted to acquire
• Judging by some of the comments in the
  questionnaires the lists of skills seemed to have
  been more of a wish list than what the students
  were actually experiencing in their law degrees
• These preliminary findings indicate that most of
  the skills identified by the law students at the
  UKZN and the NMMU are similar to those
  recommended by the law deans during the revision
  of the LLB
• In addition they are also almost identical to the
  exit outcomes listed by the SAQA

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Five most important values

• The preliminary findings of the survey were that
  the five most important values identified by the
  UKZN law students in order of priority were
  respect for human rights, respect for ethical
  rules, respect for the rule of law, respect for
  other people and personal honesty and integrity
• The values listed by law students from NMMU in
  order of importance were respect for legal
  ethics, respect for human rights, respect for the
  rule of law, respect for other people and
  personal honesty and integrity.
• As in the case of legal skills it was not clear
  whether these were wish lists of the values
  that the students would like to have been exposed
  to or whether they already formed part of the
  curriculum at their institutions
• The need to inculcate respect for ethical rules
  was one of the issues identified by the law deans
  during the revision of the LLB degree
• The emphasis on the need for students to respect
  human rights, the rule of law and other people
  was included in one of the listed exit outcomes
  for the LLB mentioned by the SAQA

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Conclusion

• The revised undergraduate LLB program places
  greater emphasis on skills and values education
  than the previous post-graduate LLB program
• These skills and values have been reflected in
  the SAQA exit level outcomes for the LLB degree
  The assessment criteria for measuring success in
  skills and values clearly indicate that
  interactive learning methods must be used to
  ensure learning by doing
• The preliminary findings from an open-ended
  sample survey of law students at two South
  African universities indicate that in general the
  expectations of students regarding the knowledge,
  skills and values they wish to acquire during the
  LLB degree are in line with those suggested by
  the law deans for the revised LLB degree and
  recognized by the SAQA.
• A criticism of the new LLB is that undergraduate
  law students are under-prepared for university
  because of the poor secondary school education
  system experienced by the majority of black South
  Africans arising from years of apartheid
  mismanagement based on discriminatory allocation
  of resources