Time to dismantle the entry barriers to the legal profession

October 1st, 2021

It is time to dismantle the entry barriers to the legal profession and level the playing field for aspirant legal practitioners in South Africa (SA). The journey towards becoming a legal practitioner is a long and winding one, from studying through tertiary institutions, to securing practical vocational training (PVT), and passing competency-based examinations. This article will focus primarily on PVT and will elaborate whether there is a need for the Legal Practice Council (the LPC) to recognise in-house legal experience (corporate legal experience) and accredit more institutions to provide PVT to prospective candidate legal practitioners and address the impasse that many legal graduates find themselves in after completing their legal studies. As a point of departure, before discussing the topic at hand, it is important to first set out the requirements for admission into the profession.

Requirements for admission into the profession

The Legal Practice Act 28 of 2014 (the LPA) regulates the legal profession and according to s 26(1) of the LPA there are three main prerequisites that an aspirant legal practitioner will require in order to be enrolled as a legal practitioner, namely, they must –

  • have completed an LLB degree or an equivalent law degree;
  • undergo all the practical vocational training requirements prescribed by the Minister;
  • pass the competency-based examination (Alicia Koch ‘The long and winding road to becoming a lawyer’ golegal.co.za, accessed 8-9-2021).

A candidate legal practitioner must satisfy all three requirements to be admitted into the profession. It is important to highlight that two of the above requirements, namely bullet one and three rest on the individual’s potential, unlike bullet two that depends on the candidate legal practitioner’s luck and fortune to secure PVT within a limited pool of accredited institutions or organisations suitable for offering PVT. In the current framework many legal graduates find themselves systematically excluded from entering the profession, and furthermore disregards a larger range of equivalent legal experience (for example in-house legal experience) that is largely commensurate with PVT.

What is a PVT contract and what requirements must be met for an institution to qualify to offer PVT?

The requirements are set out under reg 6 of the LPA: Regulations under s 109(1)(a) in the schedule (GN R921 GG41879/31-8-2021). Before I address these, it is important to highlight that both the LPC, and as well as the relevant legislation, the LPA and the Rules made under the authority of ss 95(1), 95(3) and 109(2) of the LPA do not expressly exclude the possibility of accrediting more institutions to offer PVT. On the contrary, the LPA does empower the LPC to accredit more institutions. This can be traced to reg 6(5)(f)(iii).

Regulation 6(1) provides that: ‘Any person intending to be admitted and enrolled as an attorney must, after that person has satisfied all the requirements for a degree referred to in sections 26(1)(a) or (b) of the Act serve under a practical vocational training contract with a person referred to in subregulation (5) –

(a) for an uninterrupted period of 24 months’.

The requirements that must be met by an institution to qualify to offer PVT

Regulation 6(5)(a) to (d) provides that a candidate attorney may be engaged or retained under a PVT contract by an attorney that is practicing law and furthermore, reg 6(6) provides that ‘an attorney engaging a candidate attorney –

(a) … must have practiced as an attorney for a period of not less than three years, or for periods of not less than three years in the aggregate, during the preceding four years’.

Lastly, reg 6(8) provides that ‘an attorney referred to in subregulation (5)(a) to (e) may, at no time, have more than three candidate attorneys’ under supervision. ‘An attorney referred to in subregulation (5)(f) may, at no time, have more than six candidate attorneys in the aggregate engaged or retained in terms of a [PVT] contract’.

I will demonstrate later in this article that most big corporate organisations with in-house legal services departments are substantially meeting the above requirements, in that they do offer 24 months of legal internship to legal graduates, and usually the person that these graduates report to is an admitted attorney with solid practice and in-house experience. This then begs the question why the LPC should not relook at the requirements and allow legal graduates to show cause why their corporate legal experience should be deemed equivalent as the articles of clerkship.

Challenges confronting the profession

The current pool of institutions permitted by the LPC to offer PVT is skewed in comparison to the number of legal graduates who want access to the legal profession. Many graduates find themselves alienated from the profession even before their careers commence. This crisis is likely to be accentuated by the current COVID-19 pandemic, which has affected many businesses negatively. Going forward, undoubtedly many organisations will decrease their usual annual intake of candidate legal practitioners, and in turn, this will increase the number of legal graduates who will not be able to access the legal profession. A solution to this growing crisis needs to be sought urgently.

Access and admission to the profession must not be a preserve of a well-connected few, and reasonable progress needs to be made to ensure that aspirant candidate legal practitioners are allowed to pursue more flexible pathways into the profession. As stated previously, the LPA does not preclude the possibility of recognising and certifying more organisations to offer PVT. On the contrary the idea seems welcomed. There are two propositions that might be explored and rapidly implemented, which could help to ameliorate the situation that many aspirant legal professionals find themselves in.

  • The first proposal: Would recognise other credible institutions, such as major financial institutions, state-owned enterprises, insurance companies and major groups. The experience that graduates obtain from these aforementioned organisations measure up to the professional experience envisaged by the LPA, and indeed in some instances the degree of professional training and development is far greater than in many private legal practices. A common trend among these organisations are that when they recruit a chief legal advisor/legal manager, they usually appoint an admitted attorney with solid legal experience. This, therefore, means that legal interns, junior legal and senior legal advisors are constantly working under supervision of an experienced, admitted practitioner. This experience, coupled with the LPC’s own supplementary programmes, will place these individuals in the same category as those within law firms. Another additional requirement would be to write and pass Board examinations. This is not proposed as blanket recognition for all corporate legal contexts, but rather an opportunity to identify organisations that meet the requirements. In such cases, organisations should be encouraged to apply annually to the LPC for approval to offer PVT contracts.
  • The second proposition is meant for legal graduates who have acquired considerable corporate legal experience but are not admitted as attorneys. The proposal here would be to condone in-house legal experience where a candidate has three and above years of uninterrupted satisfactory service, provided that a candidate attends compulsory classes organised by the LPC to supplement their training or experience. Furthermore, they should be required to write and pass Board examinations.

Adopting the above suggestions would drastically improve the plight that many poor and disadvantaged legal graduates find themselves in and widen the pool of admitted legal practitioners in SA.

Quality of legal training

One might ask the question whether implementing the above suggestions could potentially lead to concerns about quality of legal training. While one needs to accept that this is not an unreasonable apprehension, however, what evidence is there that those who are currently undergoing training within the institutions that are currently recognised are getting the best experience?

In addressing these concerns, one ought to be mindful that the LPC in the current framework, does not have quality check mechanisms in place to vet the organisations that it currently permits to offer PVT contracts. Organisations have a free range to structure their PVT programme as they deem fit. Depending on the size of the organisation and its focus areas, there are organisations that specialise in a particular branch of law, for example boutique labour and conveyancing practice firms. Candidate legal practitioners in the aforementioned firms get exposure to a specific areas of the law. A question must be asked what separates these candidate legal practitioners from those who work in-house. Furthermore, there are also law firms that offer no rotation, whereas others rotate their candidates in different focus areas of business. The experience and training provided by these recognised institutions in many instances falls short of providing the experience that many legal interns/junior legal and senior legal advisors gain in the corporate organisations, yet the latter experience is not recognised as PVT.

It is time to revisit these limitations and allow for greater inclusivity and multiple professional training paths, so that a larger and more diverse pool of legal graduates can access the profession and develop their careers. Access to the profession and transformation is crucial to an equitable profession.

Unathi Jukuda LLB (UWC) ND Marketing (CPUT) is an admitted attorney and employee relations consultant at the University of the Western Cape in Cape Town.

This article was first published in De Rebus in 2021 (Oct) DR 39.

De Rebus