Court confirms parity of public and private law degrees

Last month’s high court ruling, which found that law graduates of private higher education institution Varsity College are as qualified to be admitted as attorneys as their counterparts from public universities, brings greater parity to the public and private spheres and opens the door to more private LLB programmes in South Africa.

The ruling in the Pietermaritzburg High Court on 22 February ended a year of uncertainty for about 400 law students at Varsity College who enrolled in the accredited four-year course last January and were informed in February of the same year that the KwaZulu-Natal (KZN) Law Society would not admit Varsity College graduates because they had not studied at a “university”.

Varsity College, a brand of South Africa’s largest private higher education provider the Independent Institute of Education (IIE), is the first private institution to offer the four-year LLB programme. The judgment opens the door to the provision of a similar qualification by other private higher education institutions, according to Varsity College Managing Director Louise Wiseman, interviewed on Smile FM.

“We've been a leader in taking this challenge on. We are the first private institution to offer the four-year LLB qualification so if other privates were to follow in that area, then obviously that precedent has been set,” she said.

What is a ‘university’?

The court case – brought by the IIE and opposed by the KZN Law Society – hinged on the use of the term ‘university’ in the new Legal Practice Act (LPA), which regulates the professional activities of attorneys and advocates and came into full force, save for certain provisions, in February 2018. It replaces the Attorneys Act of 1979.

Section 26 (1) of the new act states that a person can only be admitted and enrolled as a legal practitioner if he or she has “satisfied all the requirements for the LLB degree obtained at any university registered in the Republic …”

This section seemingly put the LPA in conflict with the Higher Education Act, amended in 2016, through which degrees at private higher education institutions are deemed equivalent to those from public institutions, according to a Varsity College statement.

The situation is further complicated by the fact that Varsity College is currently unable to call itself a university.

The IIE’s General Manager Peter Kriel told University World News that despite the Higher Education Act making provision for three tiers of institution at both public and private levels – universities, university colleges and higher education institutions – it does not yet describe the criteria for such categories. “So it remains a technical impossibility for a private institution to be a called a ‘university’ despite the fact that the qualifications of each are deemed equal,” he said.

‘No rational basis’

Acting Judge Carol Sibiya was reported to have said she could find “no rational basis” for differentiating between persons with an LLB degree, particularly given that the Council on Higher Education, the highest educational authority in the land, confirmed that there was no difference in the quality and outcomes of the IIE’s four-year LLB and that of public universities.

She also found that the distinction created by Section 26 was an unnecessary and unjustifiable limitation to entry into the profession.

Her ruling, which is still to be ratified by the Constitutional Court, gave the minister of justice, Michael Masutha, one year to change the relevant sections of the Legal Practice Act.

Kriel said the IIE was confident that the directive given to Masuthu would be effected in time for the 2018 cohort to benefit. “The minister has already expressed his intentions and the amendment to the wording in the act has already been proposed and is out for public comment. Our LLB students won’t enter the market until 2022, so we are sure that timing will not be a problem,” he said.

'Technical barrier’

The legal impediment to the future career prospects of Varsity College law graduates was drawn to the attention of the college by a parent of an enrolled student who sought clarification on the discrepancy from the KZN Law Society which confirmed its refusal to admit graduates from the private institution. Graduates are required to register with the society to do their articles – a requirement to become a fully-fledged attorney.

Varsity College was itself unaware of the “technical barrier” when it applied for its accreditation with the Council on Higher Education (CHE) and registration with the National Qualifications Framework (NQF) and enrolled its students in 2018, according to Kriel.

“The CHE is the highest educational authority in the land and it did not come to our attention that a point in the LPA … would present a technical barrier to our graduates entering the profession. So we were not aware that an impediment of this nature might exist.

“In working with the South African Law Society and other legal professionals during the design phase of this qualification, this was not noted. Furthermore, there was precedent as another private institution was already running a postgraduate two-year LLB and the issue was not raised there either,” he told University World News in an email.

Kriel said when the institution became aware of the problem in February 2018, it began “regular communication” with students and parents and offered them a chance to deregister without prejudice. Confident of a positive outcome, however, they continued the programme.

“At that point we did not anticipate the ongoing resistance of the KZN Law Society and the fact that we would need to approach the High Court. From the beginning we also lobbied the ministers of both higher education and of justice and constitutional development to assist in making the necessary changes to the law and received cooperation there too.”

According to Kriel, the four-year Varsity College LLB programme was introduced after Higher Education Act amendments made it illegal for any higher education institution to teach on or provide tuition for the qualifications of any other institution. Varsity College had up until then, and for over 20 years, taught law programmes through the provision of tuition from the University of South Africa and, later, the University of the Free State.

Private sector challenges

While the recent ruling puts South African private university LLB programmes on a more equal footing vis-à-vis their public counterparts, Kriel said challenges still exist for the private sector.

“The biggest difference between public and private institutions, and understandably so, is that private institutions are not funded or subsidised [by government], and private students for example don’t qualify for National Student Financial Aid Scheme bursaries. Some barriers may exist for private institutions in disciplines such as medicine, for example,” he said.

The IIE is also awaiting judgment from the high court in Pretoria on the issue of whether it is discriminatory that students from private institutions be excluded from participating in premier sporting events such as Varsity Cup and Varsity Sports.

Kriel said that while private higher education in South Africa was definitely growing, it was “coming off a very low base”.

“The nature of this growth may also be misleading as it is in part fuelled by the fact that private institutions are now teaching their own qualifications and not those of public institutions, such as Unisa. The reality remains that less than 15% of higher education students in South Africa are registered with private institutions,” he said.

However, he said given the likelihood that future demand for quality higher education would outstrip the ability of public institutions to supply it or government to fund it, “healthy growth” of well-resourced, quality institutions was likely.

Kriel said there was a growing appreciation of private higher education. “It is no longer the case that private institutions are somehow second-rate. We are now also starting to see a return in second generation private students, which is an indication of public trust.”

He said although strict regulations and controls are in place, there also seems to be acceptance from the government that private institutions could play “an important role in providing much-needed access to tertiary education which the publics cannot cater for, and for niche markets.”