Uniformed PVT discussed at Legal Education Conference

April 1st, 2018

Harvard Law School’s Professor David Wilkins was the keynote speaker at the Legal Education Conference hosted by Law Society of South Africa and Monash South Africa on 1 and 2 March.

By Kgomotso Ramotsho

The Law Society of South Africa (LSSA) in collaboration with Monash South Africa, hosted a conference on 1 and 2 March in Johannesburg, under the theme ‘From a Disjointed to an Integrated Legal Profession: The Design of the Appropriate and Relevant Practical Vocational Training for Legal Practitioners’.

Harvard Law School’s Professor David Wilkins delivered the keynote address, which discussed how the legal education sector should respond to the changes in legal practice. He said that the topic of change in legal practice is a global topic. He added that a lot of people have asked if legal education is in a crisis. Prof Wilkins pointed out that South Africa (SA) is faced with some legal education challenges and noted that although he did not know much about the Legal Practice Act 28 of 2014 (LPA), the little that he has read on it, is that the LPA is about the unification of legal practitioners (attorneys and advocates).

Prof Wilkins said that legal practice has been specialised over-time. He added that the idea behind having a unified profession is that it will increase the quality of service and better the costs of providing the service to the public. He pointed out that it will further integrate advocacy with counselling. He said that legal education in SA is under pressure because of the tremendous changes that have happened in the country over the past 25 years. He said that as an emerging country, SA has gone through significant transformation in its relationship to the world and in particular, the global economy.

Prof Wilkins said transformation has opened the door for more foreign investments in the country, in terms of foreign companies, foreign transactions, cross-border mergers and the privatisation of foreign assets. He noted that macro changes in the economy, increases the demand for new laws, namely, more sophisticated investment laws, trade laws and competition laws. He added that these laws were not like the current laws, but these laws have to be much more sophisticated and have to link to the laws of other jurisdictions of global governance, because this is how things operate in the global economy.

Prof Wilkins pointed out that it will not take long to realise that with all these new laws, new legal practitioners are needed, who have different skill sets and who know how to operate in modern times. He highlighted some of the challenges that could be faced in the future of the legal education. He spoke on the following points –

  • Specialisation versus mobility

Prof Wilkins asked if legal practitioners should be trained for specialisation or mobility. He said that legal practice has become more specialised and law firms and other employers often want law schools to train candidate legal practitioners in a specific field. He said that the other thing is that young legal practitioners are moving around from one job to another with increasing frequency, because they want to know more. He added that young legal practitioners want to learn transferable skills in order to pursue the job they are going to get immediately after law school.

  • Education versus experience

Prof Wilkins asked what is important between classroom education and practical vocational training (PVT). He asked if students should be taught by professional academics, who are trained academics or by legal practitioners who understand the latest changes in legal practice.

  • Socialisation versus criticism

Prof Wilkins spoke about the challenge of legal education. He asked if it was to socialise people into the profession – by assimilating them to existing norms of practices of a legal practitioner – or is it to teach them to criticise the existing norms and try to create new ones?

  • Core competency

Prof Wilkins pointed out that legal practitioners are required to learn new skills, such as –

– information technology;

– understand the sophisticated economic model;

– business strategies;

– social dynamics; and

– practising in the human rights field and understanding cross-culture sensitivity.

He added that there is a great deal legal practitioners have to do to be competent, but finding a balance between learning new things and understanding old core practices may be challenging.

  • Markets

He pointed out that legal education should embrace the market and prepare legal practitioners so that they can succeed in the current market place. Prof Wilkins added that legal education should constrain the market and create the rules to access the market.

National Youth Convener of the National Association of Democratic Lawyers, Ugeshnee Naicker, spoke at the conference.

The youth and PVT

National Youth Convener of the National Association of Democratic Lawyers (NADEL), Ugeshnee Naicker said that the youth had decided that there should be one uniformed PVT for both pupils and candidate attorneys. She highlighted some of the resolutions taken at NADEL’s National Young Lawyers Summit. One resolution was that the LSSA must consult law students at tertiary levels to address issues regarding the curriculum of the LLB degree to create proper and able legal practitioners for the future. She added that PVT must include all skills that a legal practitioner would require, including business and finance skills.

The President of the Black Lawyers Association Student Chapter, Luyolo Mahambehlala, said that language barriers can pose a challenge to university students.

Challenges facing black graduates

The President of the Black Lawyers Association Student Chapter, Luyolo Mahambehlala, spoke about the challenges facing black graduates and the value of University Education. He said that black graduates encounter challenges from as early as high school, such as language barriers, scarce resources and the high number of students per class. He added that in order for acceptance into a Higher Learning Institution, or to qualify for an LLB degree, a student needs to obtain a certain percentage in language, particularly English, however, he pointed out that in some of the public schools black students are not taught in English.

Mr Mahambehlala said that the same students who are taught in vernacular languages are expected to do well when they reach tertiary level. He added that language is a barrier for black students in the legal fraternity. He pointed out that the disadvantages of language barriers haunt black students until they complete their LLB degrees. He said that the same student – who struggles with English or Afrikaans – has to write board examinations, which are offered in English or Afrikaans, and this affords their white counterparts an unfair disadvantage.

Mr Mahambehlala added that legal education is disappointingly abstract and highly impractical in SA. He said candidate legal practitioners are taught theory only and as a result they finish their qualification without any practical exposure to equip them to do their actual work. He noted that the issue of legal education has been met with little to no response from the institutions of higher learning. He pointed out that the none-uniformity of legal education is a contributing factor in the disparities and the quality of graduates in the country.

The Director of Mabaeng Lenyai Attorneys, Mabaeng Denise Lenyai, discussed challenges faced by female legal practitioners in the legal profession.

Challenges for women’s advancement

The Director of Mabaeng Lenyai Attorneys, Mabaeng Denise Lenyai, spoke about the challenges women face in the legal profession and what needs to be done to change this. She noted that senior female legal practitioners face challenges of being undermined by their male colleagues.

Ms Lenyai said that female legal practitioners are also faced with the stereotype that they are mentally imbalanced, that they cannot deal with pressure and breakdown at the first instance of stress that comes along. She said stress for female legal practitioners is not caused because they cannot juggle their professional and private life at the same time, but, by the fact that they are being undermined.

Ms Lenyai said the topic of women’s advancement and transformation has been discussed many times, but when it is time for implementation nothing happens. She encouraged female legal practitioners who have advanced in the profession to take it on themselves to mentor other young women in the profession and said that if mind-sets were changed the legal profession would transform.

Perspective on legal education and transformation

The President of the Black Lawyers Association, Lutendo Sigogo, spoke on legal education and transformation.

The President of the Black Lawyers Association (BLA), Lutendo Sigogo, said the BLA believes that PVT must be compulsory for both attorneys and advocates as they all receive the same primary legal education at university. He added that PVT must be accessible to all in terms of fees, one language of instruction and should be compliant with constitutional imperatives. However, he noted that PVT must be held in the hands of those who will not block the entry to the legal profession in terms of fees or language barriers. ‘We believe that this part of education must not be commercialised. It must fully remain in the hands of the Legal Practice Council [LPC]’.

Mr Sigogo pointed out that a person who is admitted as an attorney has to have an LLB degree from a recognised university. He said that the Attorneys Act 53 of 1979 does not have a definition for private higher learning institutions with regards to the LLB. He added that these are topics that institutions such as Monash University and Varsity College should engage the profession on, so that there can be an understanding on how private institutions are going to help with accessing the legal profession. Mr Sigogo noted that the LPC – having understood the past injustices of black legal practitioners and black people – will come up with a mechanism that will assist in improving legal education, which will be transformative in nature.

Mr Sigogo spoke about the stipends of candidate legal practitioners. He said the LPA requires that all candidate legal practitioners should be paid a stipend. He noted that currently pupils do not get paid while candidate attorneys are paid, although unacceptably low salaries. He pointed out that going forward the profession must find a way of paying a stipend to candidate legal practitioners in line with the LPA. Mr Sigogo said that there is a suggestion that the Attorneys Fidelity Fund (AFF) must pay candidate legal practitioners stipends. He added the BLA does not see how it is possible for the AFF to pay for both candidate attorneys and pupils, because advocates do not directly contribute to the AFF. He pointed out that should the AFF pay stipends for both candidate attorneys and pupils – while advocates are not contributing to it – the AFF’s capital will be exhausted. He added that it should be thought through thoroughly on how pupils will be paid.

The Deputy Chairperson of the National Forum on the Legal Profession, Max Boqwana, spoke on the future of the profession.

The future of the profession

The Deputy Chairperson of the National Forum on the Legal Profession (NF), Max Boqwana, said the issue of legal education is something that is pertinent within the legal profession and the matter has received a great deal of prominence within the discussions of the NF. He added that at the centre of the discussion is the fact that there has been disagreements and the inability for many to envision a future, which is a complete departure from the past and the present. He pointed out that in the future, legal practitioners need to be trained in a different way, because those legal practitioners must serve in the future as enshrined in the Constitution of the country.

Mr Boqwana said it is common cause that the legal profession in SA has some difficulties and there are divisions in the country in terms of race, gender, geography, class, culture and most importantly the division between attorneys and advocates. He said that the distinctions and division on education are quite artificial, because learners go to the same universities. He added that the problem with the lack of unity in regards to PVT is that current legal practitioners when they discuss issues of PVT they want to include themselves in the future. He pointed out that there were discussions with the late Chief Executive Officer of the LSSA and Director of School for Legal Education and Development (LEAD), Nic Swart, about a college of law that would deal with issues, where students would be taught social context, training of forensic skills, marketing and client management.

‘We need to have a concrete plan designed in terms of how we can set up that law college, which really will be an elevated form of an education centre from what we have in terms of LEAD [Legal Education and Development], which is really almost 70% of the work done,’ Mr Boqwana added.

Convenor of Advocacy Training of the General Council of the Bar, advocate Jannie van der Merwe SC, spoke at the Legal Education Conference.

Co-chairperson of the LSSA, Walid Brown, pointed out that it is not the intention of the LSSA to obtain fusion of the legal profession. He said the motivation for a uniformed PVT has nothing to do with fusion, but rather with the intention to create legal practitioners who are capable of adequately representing the public whether they are attorneys or advocates. He added that PVT should be uniformed to help make life easier for candidate legal practitioners.

Views of the legal practitioners and law academics

Convenor of Advocacy Training of the General Council of the Bar (GCB), advocate Jannie van der Merwe SC, said that the GCB is not of a view that a uniformed PVT for both attorneys and advocates is appropriate. He added that the GCB has disagreed on uniformed PVT and after training, candidates and pupils would decide on which side of the branch of the profession they want to pursue. He noted that the attorneys’ profession and advocates’ profession are two different branches of the legal profession, however, he said both branches are important.

Mr van der Merwe said advocates perform different functions to attorneys. He pointed out that the very existence of advocates depends on being instructed and briefed by attorneys. He added that advocates focus on litigation skills and pupils who want to practice as advocates need to be litigators who are able to do these fundamental things, which are to advocate in writing and to advocate orally. He said that pupils need to have skills to be able to persuade through a written argument, written drafting and through oral argument.

Mr Brown, said that the LSSA is trying to give a training model for all legal practitioners and not only for those who want to join the Bar. He said the GCB cannot isolate the legislation and added that the skills that advocates are given are the same skills attorneys need when they prepare for trials. He said the attorneys are not trained to be bookkeepers, but are trained practically to analyse problems of clients and presentation. He added that another skill candidate attorneys are taught is for the management of a practice.

Co-chairperson of the Law Society of South Africa, Walid Brown, said the legal profession must have a uniformed model training.

Indispensable skills of legal practitioners

A session titled ‘Indispensable skills of legal practitioners’ was chaired by Western Cape High Court Judge and Honorary Professor of Law at University of Cape Town, Judge Dennis Davis. Panellists included, attorney at Spoelstra Mediation, Corlene Spoelstra; Director at Gwina Attorneys Inc, Sandanathi Gwina; and Adjunct Lecturer for Civil Procedure at Monash South Africa, Rendani Nthambeleni. The panellist recommended the following skills as indispensable –

  • problem solving;
  • critical thinking;
  • written and oral communication;
  • constitutional thinking; and
  • social justice skills.

The panel pointed out that the core skills mentioned above are skills required by both attorneys and advocates.

Role of academics and other institutions

At another breakaway session chaired by the Director at Wits Law Clinic, Daven Dass, which included the Head of School of Law from IIE Varsity College Fiona Kaplan; Professor and Clinician at Wits School of Law, Riette du Plessis; and Interim Coordinator: Unit for Applied Law at the Cape Peninsula University of Technology, Noeleen Leach, discussed the role of academics and other institutions. The key points made at the session was that the role of academic institutions – is in essence – to produce a graduate with the necessary base level skills or a graduate who possesses the core competencies required within the profession, namely –

  • critical thinking or critical analysis;
  • drafting and writing; and
  • business acumen.

The question of how academic institutions can produce graduates with the above competencies was discussed.

The panel suggested the following:

  • University-based law clinics could be of assistance.
  • The introduction of experiential learning to all LLB courses.
  • Focus on finding synergies between academic institutions and the LSSA’s LEAD division to further education.
  • Focus on the requirements of s 29 of the LPA that candidate legal practitioners perform community service and legal practice.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2018 (April) DR 6.