Preface: Live client law clinics

1. Voluntary and compulsory clinical law programmes: The South African experienceProfessor David McQuoid-Mason

2. Preface: Live client law clinics • In July 1973 at the time of the First International Legal Aid Conference in Durban, South Africa there were only two law clinics – one at the University of Cape Town (1972) and the other at Witwatersrand University in Johannesburg (April 1973). • The Cape Town clinic was voluntary, run by students with no classroom component. • The Wits clinic was run by faculty staff with a clinical classroom component as a voluntary part of the compulsory Practical Legal Studies course. • In August 1973 the third law clinic was set up at the University of Natal, Durban, first as voluntary non-credit course with a classroom component and then as a prescribed part of the compulsory Professional Training course. • In 1978 the Natal clinic became part of the classroom component of a self-standing optional Legal Aid course for LLB students, who were exempted from the law clinic service part of the Professional Training Course. • By 1982 16 of the 21 law faculties in South Africa had legal aid clinics and eventually all universities had them – most of them began as voluntary non-credit courses, and then became credit-bearing optional courses. • In 1989 Wits made service in the Campus Law Clinic part of the compulsory credit-bearing Practical Legal Studies course for all students.

3. Preface: Street law • In 1986 the first Street Law program was established at the University of Natal and it soon spread to other universities. • As Dean of Law I had arranged for a six month pilot program taught in six high schools by a recent law graduate. • The pilot program was successful an in 1987 Street Law was established as a credit-bearing optional course at the University of Natal, Durban. • Thereafter, Street Law programs were established at all the South African law faculties, funded by the Attorneys Fidelity Fund. • Most Street Law programs were voluntary non-credit-bearing but a few were part of optional credit-bearing courses. • The South African experience is that Street Law courses are far less staff -intensive and expensive than conventional live client clinics. • All students at the University of KwaZulu-Natal (UKZN) must take a course in Clinical Law, Street Law or Teaching Legal Skills in their final year.

4. Introduction Clinical law programmes as voluntary non-credit-bearing courses: • Operational strategies for non-credit-bearing clinical law courses; • Opportunities in non-credit-bearing clinical law courses; • Challenges for non-credit-bearing clinical law courses; • Expectations of students and law clinicians in non-credit-bearing clinical law courses. Clinical law as compulsory or optional credit-bearing courses: • Operational strategies for credit-bearing clinical law courses. • Opportunities in credit-bearing clinical law courses. • Challenges in credit-bearing clinical law courses. • Expectations of students and staff in credit-bearing clinical law courses.

5. Operational strategies for voluntary non-credit-bearing clinical law courses • The instructors have much greater flexibility in determining the content, delivery and assessment of the course. • The content and delivery of the course should be designed to meet its objectives depending on the type of clinical work that will be done. • Voluntary non-credit courses differ from credit courses in regard to assessment because, given the pressures of a law curriculum, students will be reluctant to submit themselves to formal methods of grading and examination that will not result in academic credit. • Students in voluntary non-credit courses may be awarded a certificate of satisfactory attendance and performance at the end of the course (e.g. a certificate for community service). • Students may sometimes be required to attend a non-credit clinical law program as a ‘duly performed’ requirement for graduation. • As in compulsory credit-bearing clinical law courses (see below) students should be exposed to interactive experiential learning.

6. Opportunities in voluntary non-credit-bearing clinical law courses • Where the clinical law program is voluntary and non-credit-bearing, the faculty can devise a selection process whereby only those students who are committed to justice education are accepted. • The program has the flexibility to determine its own exclusion criteria for removing students who do not perform from the program – without having to conform to the faculty rules regarding exclusions. • The program should, however, make sure that all students are fully informed about what is expected of them by drawing up specific criteria in respect of attendance and participation in, and exclusion from, the course.

7. Challenges for voluntary non-credit-bearing clinical law courses • The main challenge is to keep students sufficiently motivated to ensure that they do their work properly and do not withdraw from the program. • Clinicians in such courses do not have the weapon of ‘duly performed’ certificates or their equivalents to secure compliance and are solely dependent on their ability to maintain the interest of the students. • To this end the content and delivery of the program must be interesting, informative and action-oriented. • Students must feel that the skills they are learning and the education they are receiving more than compensate for the lack of academic credit. • Clinicians also need to imbue students with a sense of professional responsibility and ethics so that they are not tempted to abandon their clients when things become difficult or they feel under pressure.

8. Expectations of students and law clinicians in voluntary non-credit-bearing clinical law courses • The expectations of students in voluntary non-credit-bearing clinical law courses, are that they will: • Learn the appropriate lawyering skills and be exposed to practical aspects of justice education. • Be sufficiently empowered to enter the next stage of their legal and professional education. • Gain self-confidence and a better understanding of the challenges involved in delivering social justice. • Obtain a proper understanding of the practical aspects of legal practice. • The expectations of law clinicians are that the students will: • Learn appropriate lawyering skills in a social justice context; • Become imbued with notions of justice and professional responsibility; • Some of students in their future legal careers will make a positive impact in the struggle for social justice.

9. Operational strategies for compulsory credit-bearing clinical law courses • Where clinical law is a compulsory credit-bearing course it will be governed by the law school curriculum regarding content, delivery and assessment. • The content of the course must be designed to meet the objectives of the course and will be influenced by the type of clinical program offered. • Apart from the practical skills that students learn, the course should also promote social justice to make students aware of the problems faced by poor people in society and their resolution. • The delivery of the course should involve interactive teaching methods in the clinical legal education tradition and not simply be lecture-based. • The program should consist of a mix of interactive lessons, tutorials, practical exercises, exposure to live clients and consultations with supervisors. • Students should be exposed to experiential learning whereby skills are taught, demonstrated and practiced, where possible by exposure to live clients or in simulations.

10. Opportunities in compulsorycredit-bearing clinical law courses • Where the clinical law course is compulsory and credit-bearing the clinicians can place specific demands on the students regarding attendance and participation. • Failure to meet these demands can be sanctioned in accordance with the law school rules, by: • Withdrawal of a duly performed certificate (or its equivalent) that enables students to write the examination or qualify for the course. • In South Africa, the withholding of the law graduate’s ‘Fit and Proper certificate’ required to be issued by the Law School for admission to legal practice. • Note: Where the credit-bearing course is optional or only available to a limited number of students the clinic can devise a selection process in accordance with the law school rules whereby only those students who are really committed to social justice are accepted into the programme.

11. Challenges in compulsory credit-bearing clinical law courses • Clinical law courses are time-consuming, labour intensive, and usually demand many more contact hours than regular credit-bearing courses. • They require students to spend considerable time outside of the classroom conducting research and following up on their files. • Depending on the type of clinic students may also have to staff clinics on week-ends or visit off-campus venues; meet with clients and other persons or officials away from the campus; live in communities away from home during their vacations; or, as Street law students do, visit schools or prisons. • These activities all need to be balanced with other academic work.

12. Challenges in compulsorycredit-bearing clinical law courses (continued) • A further challenge is that students who under-perform can only be excluded from the course if they are in breach of the faculty rules regarding duly performed certificates or their equivalents. • Specific requirements regarding operational and ethical requirements will have to be drawn up by the clinic to conform with the faculty rules. • Where all the students in a degree or diploma programme are required to participate in a clinical course the greatest challenges are: • To keep all the students motivated; • To ensure that the learning process is not compromised by unrealistic staff-student teaching ratios. • Note: Wits Campus Law Clinic employs nine supervisors for over 400 clinical law students.

13. Expectations of students and staff in compulsory credit-bearing clinical law courses • The expectations of the students in a compulsory credit-bearing clinical law course are the same as those involved in voluntary non-credit-bearing courses, ie. that they will: • Learn lawyering skills in a social justice context; • Be sufficiently empowered to enter professional vocational training; • Have gained self-confidence and an understanding of social justice; • Have experienced practical aspects of legal practice. • The expectations of clinical law teachers are that: • Apart from learning practical skills students will have become imbued with the notions of justice education and professional responsibility; • Some of the students in their future legal careers will make a positive impact in the struggle for social justice.

14. Conclusion • The nature of an institution’s academic program will determine the kind of academic training and justice education that can take place. • Where the law curriculum includes clinical law programs the status of the clinical law course as either a voluntary non-credit-bearing or compulsory or optional credit-bearing courses will impact on the (a) operational strategies; (b) opportunities; (c) challenges; and (d) expectations, involving the course. • There is room for voluntary, optional or compulsory clinical law programs. • My personal preference would be to prescribe that all students to be exposed to at least one clinical law course teaching practical legal skills in a social justice environment. • This can be achieved by prescribing that all students must take: • A not-for-credit clinical law community service program in the law degree; • An optional clinical law course – as occurs at UKZN.