Independent Institute of Education (Pty) Limited v KwaZulu-Natal Law Society and Others (CC) (unreported case no CCT 68/19, 11-12-2019) Mogoeng CJ (Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, and Victor AJ concurring) Theron J (Foreman J concurring)
The Constitutional Court (CC) declared that a Bachelor of Laws graduate of the Independent Institute of Education (Pty) Limited (the Institute) is eligible for admission and enrolment as a legal practitioner in terms of the Legal Practice Act 28 of 2014 (the LPA). This was one of the orders the CC made after an application was brought to the court after the KwaZulu-Natal Law Society (the Law Society) took the position that it would not register articles of clerkship of aspirant attorneys with LLB degrees from the likes of the Institute. The Law Society’s reasons were that s 26 of the LPA states that:
‘(1) A person qualifies to be admitted and enrolled as a legal practitioner, if that person has –
(a) satisfied all the requirements for the LLB degree obtained at any university registered in the Republic, after pursuing for that degree –
(i) a course of study of not less than four years; or
(ii) a course of study of not less than five years if the LLB degree is preceded by a bachelor’s degree other than the LLB degree, as determined in the rules of the university in question and approved by the council …’.
The Law Society contended that the words ‘any university registered in the Republic’ exclude the Institute. This is said to be so because, although the LPA does not define the word ‘university’, the Higher Education Act 101 of 1997 does so but in a way that excludes institutions like the Institute. It defines a ‘university’ as – ‘a higher education institution providing higher education and with a scope and range of operations, including undergraduate and postgraduate higher education programmes, research and community engagement, which meets the criteria for recognition as a university as presented by the Minister under section 69(d) and –
…
(b) registered as a private university, in terms of this Act.’
The Institute is a duly registered private higher education institution. It has also been accredited to offer and confer a four-year Bachelor of Laws (LLB) degree on its graduates. It is common that its LLB programme meets the same requirements and standards set for public universities. When the South African Qualifications Authority (SAQA) gave accreditation to the Institute’s LLB programme, it pointed out that one of the degree’s stated objectives was to equip prospective graduates for ‘the professional practice of law and the administration of justice in the modern South African constitutional state’ and that ‘graduates will be able to apply for admission as legal practitioners’.
The Minister of Higher Education has not yet set ‘criteria for recognition as a university’ to be met by a private university or private institution of higher learning desirous of being accordingly registered. In the absence of that criterion, the Institute cannot, so it argued, be said to have met unknown registration criteria. For this reason, it is not a ‘university’ within the meaning of the Higher Education Act by extension s 26(1)(a) of the LPA.
As a result of this, the Institute challenged the constitutionality of s 26(1)(a) of the LPA on the grounds that it is inconsistent with ss 9, 22 and 29(3) of the Constitution. It did so in the KwaZulu-Natal Division of the High Court in Pietermaritzburg (the High Court). Relying on the definition of ‘university’ in the Higher Education Act, the High Court concluded as follows: ‘For these reasons the answer to the question whether “university” can be read to include the [Institute], must be [answered] in the negative. The KZN Law Society can, therefore, not be faulted for its failure to give a different and wider meaning to the concept of university. The “decision” did not ignore the provisions of the Higher Education Act, it in fact applies [to] them, given that the Act maintains the distinction between various types of higher education institutions.’ The High Court went on to say: ‘I find that, having shown that the applicant meets the criteria set out in section 29(3) and those in Chapter 7 of the Higher Education Act, the applicant enjoys the same rights to offer the accredited four-year LLB as public universities, and its exclusion from section 26(1)(a) of the [LPA], limits this right.’
The CC said the High Court went on to hold that s 26(1)(a) of the LPA was constitutionally invalid by reason of its inconsistency with ss 9, 22 and 29(3) of the Constitution. This was said because it was satisfied that the word ‘university’ in s 26(1)(a) of the LPA clearly excludes private higher education institutions, duly registered and accredited to offer the LLB degree. The CC added that the High Court correctly referenced the meaning of the word ‘university’ in the Oxford English Dictionary. There it is defined as ‘a high-level educational institution in which students study for degrees and academic research is done.’ But, even after referring to a collation of interpretive principles in Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC), that is not the meaning it gave to ‘university’ in s 26(1)(a) as it concluded that the applicant did not fall within that meaning.
The CC said it would be impermissible to use as a standard to be adhered to or attach more weight to a word in a statute. The CC pointed out that the Constitution is the standard to be complied with in determining the constitutionality of any legislation. More importantly, where the ascertainment of the meaning or constitutionality of a provision may be enabled by direct guidance from the Bill of Rights as in this case, then that superior interpretive aid or measurement of constitutionality should render unnecessary any reference to whatever legislation might appear to be relevant. The CC added that put bluntly, if when considering the constitutionality of a particular legislation it becomes apparent that its provisions are consistent with the Bill of Rights, there would be no need to still ascertain whether its provisions are consistent with those of another related legislation.
The CC pointed out that more tellingly, the Higher Education Act opens its definition section where it states, unless the context otherwise indicates – ‘university’ means any university established, deemed to be established or declared as a university under this Act. The CC added that this follows that the special meaning given to ‘university’ in that Act is confined to instances where the Higher Education Act opens itself applies. But, even then, the definition applies subject to context. Room is less for the word ‘university’ to be given a meaning that is at variance with that specially defined one even where the Higher Education Act applies.
The CC said to concretise that approach, the following must never be lost sight of:
The CC pointed out that the Higher Education Act does not itself have a fixed general meaning of ‘university’ that necessarily applies to the Act in its entirety. The CC added that Parliament knows all pieces of legislation it has passed. The CC said had Parliament wanted to ascribe to ‘university’ in the LPA the same meaning it gave to it in the Higher Education Act, it would have been all too easy for it to do so. But it chose not to. The CC noted this, despite the fact that Parliament knew that words carry their ordinary meaning unless a special meaning is ascribed to them. Absent a defined special meaning in the LPA, ‘university’ must thus be given its ordinary meaning.
The CC said that the LPA exists to facilitate entry into the legal profession by all who have acquired a four-year LLB degree of a standard acceptable to SAQA. It bears repetition that in accrediting the Institutes’ LLB degree SAQA said that the degree would equip the graduates ‘for the professional practice of law’ and enable them ‘to apply for admission as legal practitioners.’ The CC added that s 26(1)(a) was declared constitutionally invalid, not because it defined ‘university’ in a way that excludes the Institute and thus inconsistent with the Constitution. But because it did not include certain words contained in the definition of ‘university’ in the Higher Education Act.
The CC pointed out that that approach gives rise to the injustice and absurdity alluded to in Liesching v The State 2017 (4) BCLR 454 (CC). The CC added that this was so because there is nothing in or about the LPA that compels that the definition of ‘university’ in the Higher Education Act must apply to it. The CC said an ordinary meaning of ‘university’ accords with the provisions of s 29 of the Constitution and promotes the very essence of the Bill of Rights. The CC noted that the Institute is an ‘independent educational institution’ envisaged by s 29(3) of the Constitution, that it is registered with the state and the accreditation of its LLB programme confirms that it is of a standard that is not inferior to that of public university.
The CC said the establishment of a constitutionally-compliant institution, such as the Institute, promotes the spirit, purport and objective of s 29 of the Constitution and it increases the pool wherefrom higher education of an appropriate standard could be made accessibly to many. The court held: ‘We must guard against our judgment mistakenly undermining or frustrating the essence of the Bill of Rights’. The CC pointed out that the Law Society took the view that an accredited LLB degree from a duly registered ‘private higher educational institution in which students study for degrees’ is not a university for the purpose of s 26(1)(a). The CC added that the Law Society’s mistake was, therefore, a problem and effectively unsuccessful. The CC supported the conclusion that was reached in the first judgment by the High Court regarding the meaning of ‘university’ in s 26(1)(a) of the LPA.
The following order was made:
‘1. The order by the KwaZulu-Natal Division of the High Court, Pietermaritzburg that s 26(1)(a) of the Legal Practice Act 28 of 2014 is constitutionally, invalid, is not confirmed.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2020 (Jan/Feb) DR 29.
