Life through the lens of a candidate legal practitioner

October 1st, 2020

The journey of a candidate legal practitioner is not as glamourous and exhilarating as perceived or envisioned from undergoing vacation work experience or shadowing an experienced legal practitioner for a temporary period at a law firm.

The glimpse into the legal profession in this manner does not provide a prospective candidate legal practitioner with a substantive feel for the expectations and the experiences they may encounter, from the point of applying for a practical vocational training (PVT) vacancy until completion of their training.

There are immense hurdles and obstacles to overcome before law graduates are afforded the opportunity to reap the rewards of their hard-earned efforts preceding the completion of their LLB degree. These barriers display themselves in all shapes and forms.

Firstly, when applying for a PVT vacancy, the inherent requirements stipulated by some law firms are rigid and exclude certain disadvantaged groups of prospective candidates.

Secondly, when a candidate legal practitioner is accepted and selected to undergo PVT at a specific law firm, some firms allocate practical tasks and work to be performed by candidates based on a selection process pertaining to their socio-economic background and the tertiary institution a candidate has attended.

Thirdly, most candidate legal practitioners are not afforded the rights and benefits of employees as contained in the employment laws, nor are they fully recognised as employees in terms of s 200A of the Labour Relations Act 66 of 1995 (the LRA) and s 83A of the Basic Conditions of Employment Act 75 of 1997 (the BCEA).

In light of the above, the issues mentioned can be dissected as follows:

  • The first issue: Law firms have a prerogative to maintain a high standard when employing candidate legal practitioners, depending on their organisational structure and client base. However, the selection process followed by firms for employing a prospective candidate should not be followed at the expense of excluding certain applicants due to the fact that they may not meet the tangible requirements of the vacancy. In this instance, it is unfair for a law firm to expect a prospective candidate fresh out of university to have obtained a driver’s licence, and have a motor vehicle simultaneously.

In turn, the above requirements automatically exclude certain disadvantaged groups of applicants, which results in direct and indirect discrimination in terms of s 9(3) and (4) of the Constitution read with s 6 of the Employment Equity Act 55 of 1998 (the EEA).

Therefore, an alternative solution should be sought by employers to provide assistance to applicants who meet all the other inherent requirements except those previously mentioned.

  • The second issue: Some law firms exercise preferential treatment towards certain groups of candidates and exclude others. This results in some candidate legal practitioners being exposed to a wide variety of the aspects of what the legal field has to offer, and others are left in the dark.

This creates an imbalance in the practical skills and knowledge acquired by candidates as some are not provided with an equal opportunity to learn the trades of the profession and are placed at a disadvantage in the profession, while those candidates that are provided with the opportunity to learn have an advantage in the legal profession.

Therefore, well-rounded candidate legal practitioners are more equipped and knowledgeable and able to serve the interests of their clients on the one hand, and overcome the challenges that come with the Attorneys Admissions Examinations on the other hand. Candidates who have been excluded are not well equipped with the necessary practical skills to succeed and tend to struggle.

In order to resolve this problem, law firms should level the playing field by challenging all candidate legal practitioners undergoing practical legal training at their respective law firms. Instead of using criteria that exclude certain candidates, law firms can utilise a system of dedicating time to grow each candidate without discrimination or prejudice.

  • The third issue: Is that practical vocational contracts between principals and candidate legal practitioners should be fair, equitable, and just, and in line with the employment laws of South Africa. Particularly, in accordance with the LRA, the BCEA, the EEA, and most importantly in line with the Constitution.

Despite the above, some law firms do not adhere to the abovementioned laws nor do they fairly and impartially apply these labour laws when candidate legal practitioners are employed to undergo PVT at these firms. One sees examples of candidates being deprived and/or denied study leave, which is utilised to prepare for the Attorneys Admission Examination. The remuneration, alternatively, the stipend paid to candidates, which is largely dependent on the size of the law firm, and which in some cases, cannot be regarded and measurable as disposable income for a decent standard of living should be addressed. Specifically, the fact that most candidate legal practitioners do not even reside in the province where they have been accepted to serve their PVT should be addressed. Furthermore, the overall unfair treatment imposed by some employers or some fellow employees towards people from disadvantaged groups in the organisation, at times is not conducive for candidate legal practitioner to thrive in the workplace. These issues are not addressed or resolved by some employers, and on many occasions, this form of unfair treatment and/or discrimination leads to constructive dismissals. It is important that all employers should ensure that each of their candidates are treated with human dignity, equality and respect.

To expand further, the affirmative action clause in terms of s 9(2) of the Constitution is a measure that ensures equal opportunity for all, particularly disadvantaged groups, which measure should be implemented by all law firms to overcome institutionalised discrimination.

Therefore, from the point of a candidate legal practitioner applying for employment, the playing field must be levelled by employers to provide each and every candidate with a fair and equal opportunity to thrive, regardless of their socio-economic background, the tertiary institution they have attended, or some objective criteria for systematic disadvantage of a particular category of persons to ensure that we create a sustainable future for all legal practitioners.

Boitumelo Moshugi LLB (UFS) is a candidate legal practitioner at Thobejane Setlakalane Attorneys in Johannesburg.

This article was first published in De Rebus in 2020 (Oct) DR 7.