A new LLB for a new South Africa
Dr CMA Nicholson
South Africa is in the process of transformation. The transformation of a society that has experienced gross inequalities, in order to restore the dignity of all the peoples of the country, is a challenge that cannot be met simply by legislative change. Transformation in education and training is imperative. South African educational institutions will be pivotal in transforming social attitudes and in equipping the country to meet the challenges of the new millennium successfully. The state is faced with enormous demands for funds to meet needs for, inter alia, housing, primary health care, safety and security, and mass education. The funds that are available for higher education are extremely limited. Institutions of higher learning, which are often seen to be inadequate, irrelevant and expensive,1 must rise to the occasion and attempt to generate funds from the private sector. This will enable them to enhance the service they currently provide the communities they serve. South Africa is not unique in facing these challenges, there is, in fact, a global trend to make education more relevant and of greater economic value.
The South African government has called upon all educational institutions to make a high standard of education available to every South African. This goal to increase the average educational level of South Africans is coupled with the objective of ensuring that the education that is offered is relevant. To this end educational institutions will be measured by their ability to 'deliver outputs at the lowest cost'.
A national education policy has been implemented to facilitate democratic transformation of the education system. The system will become one that serves the needs and interests of all South Africa's people while upholding their fundamental rights.
The National Qualifications Framework (NQF) has been introduced to create an integrated framework for learning achievements which will facilitate access to, and progress within, education and training.
The objective of the framework is to contribute to the personal development of each learner and to the social and economic development of the country. This objective will be achieved by enhancing the quality of education and training and accelerating the redress of past discrimination.6 The NQF comprises eight levels.
Levels five to eight relate to higher education and training. The levels are further divided into organising fields. Law falls into field eight. Regulation seven of the South African Qualifications Authority (SAQA) regulations identifies critical outcomes that must be achieved by any qualification that is to be registered with SAQA. Such outcomes include the following:
The SAQA regulations also provide for the establishment of National Standards Bodies which report to SAQA. These bodies may, in turn, establish Standards Generating Authorities to generate standards and qualifications in an identified field and to review and update such standards. SAQA, itself, was established to ensure the development and implementation of the NQF which puts in place a whole new culture of education characterised by a flexible, learner-oriented approach.
The higher-education environment has been influenced further by the Higher Education Act. This Act introduced a single higher education system to promote cooperative governance and programme-based higher education within a system committed to achieving the objectives of the NQF.
The result of all the abovementioned developments has been the introduction of outcomes-based education to all educational institutions. This has, in turn, resulted in the need to re-evaluate the inclusion of courses, or aspects of courses, in curricula on the basis of the practical value of the knowledge contained therein to the effective, efficient attainment of social goals. Courses, including those offered by universities, must teach skills, not simply ideas. Hence South African educational policy supports the pursuit of higher education in the sciences and in technology, areas which have been identified as economically rewarding.
The shift in higher educational emphasis has been accompanied by the state offloading financial responsibility for higher education to business, industry and other alternative sources of funding. Alternative sources of funding are available only to institutions which prove their success in the marketplace. Performance budgeting is, therefore, a reality for South African institutions of higher learning.
Legal education and training are essential to the role that law faculties play in the transformation of South African society. Creativity and ingenuity are called for in the design of study material and training programmes. Course content, teaching methodology, approaches and strategy must all meet the constitutional changes in South Africa.
A human-rights culture requires effective legal services. Legal skills are required in all areas from the para-legal to the public sector, hence, legal curricula should be designed to make those with legal training as effective as possible as early as possible in their careers. The scarcity of articles available to candidate attorneys frustrates this purpose and has occasioned a need for universities to move from offering purely academic training to adopting a more integrated approach. This does not mean that universities should become technical colleges, but, that they should attempt to meet social needs and to be increasingly relevant.
Justice Y Mokgoro, a justice of the South African Constitutional Court, condemns those institutions which remain ivory towers and which are becoming increasingly irrelevant. The University of South Africa (Unisa) is the largest distance learning institution in the southern hemisphere. As such, it has an enormous responsibility in meeting the educational requirements of the majority of South African students involved in higher learning. Many South Africans can only obtain tertiary education through asynchronous teaching. There are a variety of reasons for this, ranging from limited resources for study to students' remote locations which do not offer higher learning facilities. Unisa is thus faced with some unique challenges which require equally unique strategies.
An examination of the information pertaining to students who register at Unisa reveals that the student body is highly differentiated, coming from varied educational and cultural backgrounds. Students' life experiences are different and they are concerned with different immediate problems. Most have very limited time available for study but are highly motivated.
The Bureau for University Teaching has found that many of these students have a residential university ethos and the expectation that lecturers will fulfil the roles of both teacher and mentor. Their expectations are unrealistic when one takes cognisance of the huge numbers of students at Unisa.
The language barrier created by the fact that many Unisa students are second or third language learners also impacts negatively on the study competency of the students. Lecturers must, thus, improve their understanding of what students need and encourage them to make use of available support systems. Courses in which students consistently encounter difficulties must be reviewed and the structure and development of the material must be assessed. It is essential to set outcomes for every course and to evaluate progress against the life skills acquired.
Given the disparate entry levels of students and their widely differing life experiences, it is essential that study material is selected from diverse sources. Care must be taken to ensure that the student is not faced with an unmanageable volume of study material while, at the same time, educational standards must be maintained. Attention to layout will ensure that the student's interest in the course is stimulated and that he or she remains motivated. Well-integrated course material must be designed to allow flexibility in learning and the attainment of skills. Assignments and evaluation must, therefore, be appropriate and time must be allowed for reflection and self-evaluation. Media must be exploited to enhance the learning experience. Thus audio and video tapes, radio broadcasts and the Internet may be successfully used to benefit students.
With the above in mind, the Unisa Law Faculty is attempting to meet the needs and challenges of the New South Africa head-on. To this end Unisa has entered into cooperation agreements with Australia's MacQuary University in Sydney, the Erasmus University in Rotterdam, The Netherlands, Rijks University, The University of Maastricht and the University of Exeter in England. These agreements will facilitate exchange visits by teaching staff and students; the development of joint research projects, curricula and teaching materials; and the exchange of publications, academic materials, ideas and information on legal education and other matters of mutual interest, such as conferences and community outreach programmes.
Legal academics at Unisa are very aware of their role in creating a high quality, accessible legal system and legal practice. Thus, interim qualifications aimed at defined practical needs have been introduced to render a valuable service in both the private and public sector. These interim qualifications take a number of forms. Two interim qualifications were introduced at Unisa in January 1997. It is envisaged that students will register for the degree which is their ultimate objective, and which contains certain of the LLB courses grouped together. As soon as the required courses are passed the student may request the issue of a certificate which will be awarded on payment of an administration fee. This certificate will allow the student who has successfully completed the requisite courses to carry out defined legal functions prior to having completed the degree. Such certificates may be awarded retrospectively to persons who completed the necessary courses prior to 1997. The courses are also credited to the student's degree. Thus a student may elect to continue his or her studies while rendering a valid and valuable legal function. An added benefit of the awarding of interim qualifications is that it makes legal assistance more affordable.
The two certificates are known as the Certificate in Criminal Law Practice, which is aimed at clerks of criminal courts and public defenders, and the Certificate in Civil Law Practice aimed at clerks of the civil courts and registrars. In addition to these interim qualifications, the Law Faculty has designed a number of certificate programmes which are presented at both undergraduate and postgraduate level.
The LLB itself, has undergone a metamorphosis, the changes made not merely being cosmetic, but going to the heart of the legal qualification. The idea of a new LLB for a new South Africa was first conceptualised in 1995 when the matter of a standardised four-year undergraduate LLB degree, coupled with one year of practical legal training was discussed at the Legal Forum on Legal Education in Cape Town. It was envisaged that such a degree would replace the existing BIuris, BProc and LLB degrees to give admission to all areas of the legal profession. This matter again became the focus of discussions in November of the same year at the Congress of University Teachers of Law in Bloemfontein, where it was approved in principle.
On 27 November 1996 it was agreed by law faculties nationwide and representatives of the various fields of legal practice, that a four-year LLB degree would be offered. Students who had read towards another degree would be given credits or exemptions for courses already completed. Deans of the South Africa law faculties and law schools agreed to consult with one another and other stakeholders to determine which courses would constitute the core courses in the new LLB. Broad consultation amongst stakeholders was necessary to ensure that students reading for the new LLB degree would not be forced to repeat courses should they transfer from one institution to another. It was also recommended that skills courses be incorporated into the new curriculum. It was thought that introduction of practical skills might give rise to need for the drafting of student practice rules to permit students to serve in university law clinics during the LLB programme in order to obtain supervised court experience. Universities were given their own discretion to formulate the nonlegal content of their LLB degrees. Although agreement was not reached on the following ideas, they were mooted:
At a faculty board meeting held on 28 May 1997 the Unisa Law Faculty recommended to Senate that a new four-year LLB, and a one-year honours LLB degree, be introduced at the University from January 1998. Both Senate and the Council of the University approved the recommendations. The Department of National Education rejected the proposed one-year honours programme because the LLB, being a four-year degree, is already completed at an honours level.
The Department of Justice has obliged all South African law faculties to establish the new degree as quickly as possible. In the medium term it will replace all other qualifications as the entrance requirement to both the bar and the side-bar. In time it will also serve as the requirement for entry to the public service.
In 1998 nearly all South African universities, including Unisa offered the new four-year LLB. It is designed to equip students for a career in any branch of the legal profession. At Unisa the new degree was the only legal degree for which first-time registrations could be made from 1998. Students re-registering for any of the other law degrees that Unisa offered in the past would, and will, be allowed to complete these degrees. These degrees will be phased out slowly over the next few years.
The four-year LLB will comprise academic teaching, and although practical training will follow it is not a requisite for conferring of the degree. It is envisaged that students will complete the degree in four to ten years. A shorter time may be taken by those who change their registration from BProc, BIuris or the old LLB to the new one, and who are granted exemption for certain courses, completed in the other degree, which correspond with courses for the new degree. Likewise, the Dean of the Faculty may condone a study period exceeding ten years in exceptional circumstances.
The new LLB is a basic legal qualification designed to equip students for any legal career, in the shortest possible time. At Unisa the LLB does not include any nonlegal courses, other than a language course. Accounting and administration of estates may be taken for non-degree purposes. Special language courses to be known as Legal Afrikaans and Legal English are currently being developed by the language departments of the University in consultation with the Law Faculty. In the interim, students must complete an approved course in either English or Afrikaans. The language is determined by the language of tuition.
The LLB consists of fifteen courses and ten papers. The core curriculum comprises of the following:
The balance of the papers may be chosen from a selection of papers offered by the various departments within the Faculty.
The contents of the courses and papers offered for the new LLB must be revised to accord with the core components of the degree agreed to by all law faculties and law schools.
These changes to the LLB have coincided with the implementation of a university policy to make the transition to a modular situation. All courses will be evaluated by the Executive Committee of the Law Faculty to establish their economic viability, meaningfulness and overlap with other courses. Unisa law courses are technology enhanced by the use of telephone conferencing and video conferencing facilities, audio and video tapes, radio, television and computers (in the form of myUnisa). This use of multimedia improves the accessibility of the study packages to students by adding choices to the learning strategy. It offers those with access to a computer and a telephone instantaneous information. The Faculty will, however, continue to rely heavily upon print-based study guides and tutorial letters which are reasonably cost-effective and do not require students to have access to expensive electronic equipment. It remains true that a vast majority of the South African population lives in remote areas where many of the technological advances readily available in the cities are simply not yet available. In instances where law packages are technology enhanced these packages will be closely monitored to ensure that the technology improves the quality of the education being offered.
Each law course offered by the Faculty has been, or is currently being, reviewed. A team approach regarding the compilation of both the print-based and on-line packages that are being offered, or which will be offered, will ensure that students receive the full potential benefit of the outcomes-based, skills-oriented approach to education. Each team will be advised by an expert on instructional design who will consult with the authors, subject specialists and critical readers to ensure that the courses offered
Unisa is committed to offering an affordable centre for excellence that is relevant and learner-centred. Law courses are not only technology enhanced but are also enhanced through correspondence, group visits and tutorial groups which offer personal contact. Despite the fact that Unisa is a distance learning institution, it has taken steps to provide a student-friendly environment in the form of creating study spaces.
The Law Faculty and, indeed, the whole higher education system can facilitate change in South Africa through human development and capacity building. In this it can contribute to the normalisation of society in partnership with the community.
It is anticipated that the new LLB degree with a standardised curriculum will produce law graduates with a uniform level of academic knowledge. Currently there is a sharp divide between legal education and legal training. The former conducted by the universities and the latter by law firms, non-government organisations (NGOs) and university clinics. Practical training is essential to convert a theoretician into a practitioner.
Practical legal training cannot be abolished altogether. Practical training is needed to expose the candidate attorney to the widest possible variety of legal issues to enable him or her to advise a client on all the possible aspects of a legal issue. Training must be of a high quality if a high quality of service is to be delivered.
Practical training requires personal, individual training and effective guidance. The attorney who is training must thus balance the responsibilities he or she owes his or her client with those he or she owes the candidate attorney. Since some firms specialise in specific fields, what is to be done about training candidate attorneys in those aspects of law not dealt with by these firms? Rotation between firms is a possibility, as is the implementation of a series of training workshops.
Clearly a uniform standard of practical and vocational training should be available to all aspiring legal practitioners.
Positions for candidate attorneys are extremely limited and not all candidate attorneys can be accommodated. For this reason practical legal training schools run by the Practical Legal Training Directorate have been established to offer a good quality alternative to candidates who might otherwise be unable to obtain the necessary practical training to enter the profession. These schools also subsidise the training of persons from disadvantaged backgrounds. Persons leaving these schools become an attractive proposition for law firms seeking candidate attorneys who can add value to their business.
The schools for legal practice are thus well placed to complement the new LLB structure. Despite the fact that universities recognise the need for a year of practical legal training, most are not sufficiently well equipped to incorporate the practical training into the degree. Hence, it has been suggested that candidate attorneys spend six months training at a training school or equivalent institution and six months as an intern in a law firm, legal aid clinic, with an advocate, or in the public service.
South Africa, as a member of the Southern African Development Community (SADC) has signed the Protocol on Education and Training in the Southern African Development Community. By signing this Protocol South Africa has committed herself to the coordination and cooperation between educational institutions throughout SADC. The Protocol places heavy emphasis on the role of distance education. South African law faculties, and more especially the Unisa Law Faculty, as part of a distance learning institution, are well placed to further the aims of the protocol. The introduction of a standardised LLB could serve as a model for the SADC region.
South African law faculties and schools are in a position to move forward into the new millennium confident in the knowledge that they are offering well-structured qualifications which are relevant and appropriate to the needs of the communities they serve. Legal education in South Africa is undergoing considerable change and will continue to do so for some time. The constant monitoring of the packages offered to law students will ensure that any changes that are introduced benefit the student and South African society at large.