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

1. TRANSFORMING LEGAL EDUCATION FOR A TRANSFORMED SOCIETY: THE CASE OF SOUTH AFRICA DAVID McQUOID-MASON CENTRE FOR SOCIO-LEGAL STUDIES UNIVERSITY OF KWAZULU-NATAL

2. FOCUSER • 1994: YOU ARE DULLAH OMAR, NELSON MANDELA’S 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 year’s study • The law curricula in the degrees focuses on ‘rich person’s 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?

3. 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

4. Legal Education Forums • A number of special legal education forums were convened and attended by the law deans of the country’s 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 country’s 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

5. 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

6. 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

7. 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

8. 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

9. 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...

10. 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…

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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