Conveyancing examinations: A source of gatekeeping?

May 1st, 2019
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Conveyancing examinations were a hot topic of discussion at both the recently held Law Society of South Africa (LSSA) and National Association of Democratic Lawyers (NADEL) annual conferences. At issue was the notion that the conveyancing qualification examinations were used as a source of gatekeeping into the specialised field. This notion is based on the high failure rate of the conveyancing examinations.

In May and September 2018, for example, a total of 1 221 students wrote the conveyancing examinations, of that number only 281 passed. Students who write the conveyancing examinations write two papers on the same day. The first paper is a practical test, which is designed to test the competence of a student mainly in the practice and procedure of conveyancing and consists of questions, which require students to draft deeds, certificates, applications, consents, agreements, etcetera. Two hundred marks are awarded for this paper. The second paper, which is theoretical, is designed to test the student’s knowledge of the various statutes, ordinances and decided cases, applicable to conveyancing. One hundred marks are awarded for this paper. To pass the examination, a student needs an aggregate of 50% for both written papers.

Students who achieve an aggregate of 40% to 49% fail the examination but qualify for an oral examination. After the oral examination, a student who achieves an aggregate of less than 40% fails and is required to write again in the following examination session (May or September).

Discussions at the NADEL conference

During the NADEL conference, conveyancing examiner, Kuki Seegobin noted that the biggest challenge with the conveyancing examination is that it is an ‘application’ examination. Ms Seegobin added that one of the challenges examiners come across, is that legal practitioners do not have practical experience of conveyancing and they are not able to understand what is required of them.

Another conveyancing examiner, Pumla Mncwango shared the story of how she volunteered at a law firm’s conveyancing department for an hour per day, for eight months before she wrote her conveyancing examination. Ms Mncwango said the challenge is that most legal practitioners go into the examination unprepared and with the mentality that by only preparing two months in advance for the examination, they will pass.

The attendants at the NADEL conference noted that the conveyancing field remains untransformed and the examiners for the course remain dominated by white males. The conference also noted that the conveyancing question papers are still written in English and Afrikaans over long hours and that the course continues to reflect a high failure rate.

In view of the above issues raised at the NADEL conference, NADEL resolved the following:

  • The conveyancing examinations must be reviewed immediately.
  • The examination papers must be written in English only.
  • The examination must be written over three days and the structure of examinations, without compromising the quality, must be changed.
  • The conveyancing course must be provided by the LSSA’s Legal Education and Development (LEAD) division and be made more accessible.
  • Alternative forms of assessment must be investigated, which include the format for candidate legal practitioners undergoing training at the law schools.
  • The examiners must reflect transformation and more black practitioners, including women and young practitioners, must be appointed.
  • A thorough investigation must be launched to establish the reasons why there is a high failure rate in the conveyancing course.

Discussions at the LSSA conference

During the LSSA annual conference, attendees raised a point that the conveyancing examinations are used as a source of gatekeeping because the conveyancing field is predominantly dominated by white males. Ms Mncwango responded by saying the notion of gatekeeping is a perception. She added that she had the same perception prior to her writing the examination. She wrote the examination once and passed. She pointed out that when students write the examination, they do not indicate their race or their name but write their examination number instead.

A question was raised at the LSSA conference, whether conveyancing work should continue to be conducted by legal practitioners, the LSSA resolved that conveyancing work should indeed be conducted by legal practitioners. Dealing with the conveyancing examination duration, the LSSA resolved to support the resolution tabled at the NADEL conference that the two papers be written on separate dates.

In view of the issues raised at both the NADEL and the LSSA conferences, LSSA has set up a conveyancing task team to deal with the issues raised by the organised profession. One of the duties of the task team is to engage with the LSSA’s LEAD division to completely overhaul the conveyancing course training, considering key elements in conjunction with the examiners and the LSSA Conveyancing Committee.

This article was first published in De Rebus in 2019 (May) DR 3.

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