TRANSFORMING LEGAL EDUCATION FOR A TRANSFORMED SOCIETY THE CASE

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

           DAVID McQUOID-MASON
       CENTRE FOR SOCIO-LEGAL STUDIES
        UNIVERSITY OF KWAZULU-NATAL
                             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?
                        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
                   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
               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
                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
                  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
       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
    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...
    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…
                  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
    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
               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
                     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
                    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
                                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