INForMaCIóN GENEral
MINAS SUBTERRANEAS (IMMSA) UNIDAD MEXICANA IMMSA
This period witnessed the growth of legal aid programmes at several universities in South Africa.49 This was particularly speared after a Conference on Legal Aid in South Africa
held at the University of Natal in July 1973.50 Motivated by this, a distinct phase started
in the latter half of 1973 when a law clinic was established on the Wits campus. The course continued to be managed by Mrs F.N. Kentridge. The clinic was opened at lunch every day of the week for staff and students. The course was an elective credit bearing module and operated mainly as an advice office. In a document dated May 1993 it was noted that the clinical programme was incepted during the period of statutory segregation. Black students could only participate in the course with ministerial permission. Therefore the course overwhelmingly accommodated white students51 (see
annexure A).
Between August 1973 and July 1983 just one article was written on Clinical Legal Education in South Africa — that is, the article titled Clinical legal education: its future
in SA written by Professor David McQuoid-Mason published in 1977. Although this
article attempts to enlighten the reader on CLE in South Africa, the article falls short on a detailed discussion of the events at Wits.52 Indeed, for a period of ten years there appears to be no compilation of information about the developments of the Wits PLT/WLC programme.
In July 1983, Paul Pretorius presented a paper titled Legal Aid Clinics as
Teaching Institutions at the Legal Aid and Law Clinics in South Africa conference held
47 Ibid at 171.
48 Khan op cit note 35 at 148.
49 De Klerk op cit 5 at 930. Also see David McQuiod-Mason ‘Clinical legal education: its future in SA’
(1977) 41 THRHR 351.
50 Papers presented at this conference were published in the text Legal Aid in South Africa. For a discussion
on why the conference took place see chapter 3.
51 Documented cited as memos/mission.law (copy with author).
94 that year and provided further insight on the status of the PLT programme at Wits.53 In
his paper Pretorius confirmed that by 1983, university legal aid clinics were used for teaching purposes particularly at Wits.54 He implied the following as goals for students
participating in the PLT course: administration of a law clinic and a lawyer’s practice.55
Lawyer’s practice included teaching students interviewing skills, statement taking skills, drafting of documents, problem analysis, and diarising. Pretorius lists a number of challenges associated with law clinics in his article including, limited financial resources, students do not have right of appearance in court and lack of adequate professional supervision.
The course, as well as supervision during this period, was managed in the following manner:
1) Simulations were used to teach interviewing,56 statement taking, drafting of documents, problem analysis, advice on evidence, the trial, including leading evidence, cross examination and re-examination, preparation for appeals and negotiation.
2) Seminars were held on various aspects of public interest law including individual labour problems, consumer exploitation, social benefits and administrative matters.
3) After the seminar students would interview real clients.57
4) Statements would be taken and checked by the supervisor.
53 P. Pretorius ‘Legal Aid Clinics as Teaching Instruments’ in D.J. Mcquoid-Mason Legal Aid and Law
Clinics in South Africa, (1983) at 85–97.
54 Ibid at 85 where Pretorius notes other universities using the legal aid clinics as a teaching method. These
universities include RAU, Natal University and UNISA.
55 Ibid at 85 where the author states: “A viable clinical teaching programme must therefore cater for two
problems. The first is the question of access to legal services by groups that would otherwise not have such access. The second is that universities have been criticised for concentrating too much on ‘academic education’ and pressure has been brought to bear in order to make the education of students in the broad sense more practical.”
56 See Pretorius op cit note 53 at 91 where he describes how interviewing skills were taught through
simulation, “We do not lecture students on the important things that they have to do and must not do in the interview situation. What we do is conduct an interview and then discuss it amongst the class. The students themselves then discover what is important and what is not important. They also learn what their
personality can bring to an interview and what their personality cannot contribute.”
57 Already, during the 1980s supervisors experienced problems with the number of files opened by
students. Ibid at 88 where the author states that “Keen students want to take on many cases in the beginning but these have their own geometric momentum. By the end of the year we have a backlog of say 300 to 350 files which are then handed on to some poor unsuspecting vacation students. These are then passed on to succeeding students the next year.”
95 5) All administrative matters were then attended to, for example appointment cards
and photocopying of documents.
6) Students then worked on the files and researched the matter. Dummy files were created so as to allow students the opportunity to remove the files from the clinic. 7) The case and an action plan were then discussed with the supervisor.
8) Once the action was completed the file was diarised.58
Fundamental to this article is the comments made by Pretorius on the educational objectives of the legal aid programme. Essentially he argued that students could not learn by mere participation in the clinic and that there needed to be a teaching programme developed so that the educational potential of the clinic could be exploited.59
Statutory segregation for admission was lifted in 1984. Subsequently, a number of Black students were admitted to the course. These students had been poorly schooled and as a result experienced a number of challenges.60
As compared to the period from 1973 to 1986, there is a more complete documentary history for the period 1986-2000 that the remainder of the chapter will now discuss and reflect upon.
Between 1986 and 1988 PLT adopted the name Practical Legal Studies (PLS). The teaching curriculum reflected a diverse range of lawyering skills that were taught including, interviewing and statement taking, drafting, labour law, ethics, dispute resolution and litigation skills. (see annexure B)61 These lectures were held on a Tuesday
during the course of the academic year. In 1987 the Director of the programme was Zilla Graff.
In 1989, Arthur Chaskalson62 submitted a letter to Zilla Graff. The letter was
written by Chaskalson after he acted as an external moderator for the written examination
58 Ibid at 85–93.
59 Ibid at 91 where the author notes: “In other words mere participation in the clinic from an educational
point of view is not going to give any results unless it is accompanied by a carefully designed teaching programme.”
60 Documented cited as memos/ mission.law. (copy with author)
61 Original copy with author.
62 Clinton Bamberger described Arthur Chaskalson’s involvement in the clinic as “It is well to remember
that he was a founder and supervisor in the early days of clinical legal education at Wits. He is a teacher in the classroom now and a sterling supporter of the law school and PLS course.”
96 in PLS. (see annexure C) Chaskalson was most disappointed with the grades received by the students and therefore presented the following: Regarding the clinic he stated that,
“[t]he clinic is a valuable institution and you and other supervisors are doing important work. I think that it is essential that this work be kept within manageable limits. The bad results this year may prove to be a mixed blessing. They serve as a warning as to what can happen if numbers increase. If there is another increase in the student intake next year it may have to be balanced by a reduction in the student case load so that each case can be carefully supervised and discussed with the students — possibly more than once — until the end product meets the satisfaction of the supervisor. What is important is that the end product should be the student’s work and not the supervisor’s work. Without time for discussion and review of cases the students will flounder, the supervisors will despair and the clinic may go under.”63
There are a number of other matters that arise from Chaskalson’s letter that are worth noting including, the increase in class sizes, language disparities, case load management, supervision and students’ ability to work in a clinical setting. Although the exact circumstances pertaining to the letter are unknown (and to a large extent may not be particularly relevant to the point I am about to make) the matters raised above continue to be challenges that PLS/WLC continues to struggle with today.
Further on in 1989 there appeared to be some thought on reworking the PLS/WLC curriculum. This is indicated from the contents of a letter received by Zilla Graff from Clinton Bamberger.64 The letter was forwarded to Etienne Mureinik for
discussion.65(see annexure D) The letter discussed the possibility of a classroom
63 Letter from Arthur Chaskalson addressed to Zilla Graff dated 6 December 1989 at page 2. ( copy of letter
on file with author) The clinic staff appears to include five supervisors including Zilla Graff, Philippa Kruger, Ingrid de Villiers, Eric Blumenson and Eva Nilsen. Resources were also drawn from the Centre from Applied Legal Studies as the need arose.
64 From 1989-1990, Clinton Bamberger was a Visiting Professor of Law at the University of the
Witwatersrand, Johannesburg, South Africa designing and conducting PLS. Also see
http://www.historicalpapers.wits.ac.za/inventories/inv_pdft/AG3298/AG3298-1-008-text.pdf accessed on 20 July 2013.
65 The note to Etienne Mureinik is dated 11 December 1989 — attached is the letter from Clinton
Bamberger, undated, but received by Zilla Graff on 8 December 1989. Etienne Mureinik was the Head of the Law School during this period.
97 component for PLS. Bamberger proposed an integrated classroom component independent of and yet related to the practice.66 He proposed that there be two Directors
— one for the classroom component and the other for the clinical component. He further proposed that the classroom component be directed by a member of the academic staff so as to draw a connection between clinical education and legal education. “ The director of the PLS course would be responsible to design the course, teach some of the classes, and recruit the other teachers from the clinicians, the faculty, the profession, and the bench — all in consultation with you as the director of the clinic.”67 In terms of a curriculum for the classroom component, he proposed that it began with an orientation on the administration of the clinic, followed by brief lectures on skills for interviewing, counselling, legal research and writing, an overview on substantive law and procedure. He then proposed lectures on ethics, the role of the profession in society, the socialisation of lawyers, the power and responsibilities of lawyers, and the opportunities for lawyers in the current context of South Africa. Following on this he proposed a series of lectures on lawyering skills.68
Ironically the Bamberger letter set the stage for the way in which PLS is taught today — except that we have one Director of the course. However, in 2012, for the first time a separate position for course co-ordinator was created. Willem De Klerk was appointed as course co-coordinator for PLS as distinct from the post of the Director of the Clinic (from 2012, Philippa Kruger).
Another document in the possession of the author relating to this period must be noted. The document is titled Notes of the meeting concerning the Blumenson’s Report.69
(see annexure E) The original copy of the Blumenson report is not in the author’s possession but the notes are and will be discussed accordingly. The note was addressed to the then Dean of the Law Faculty and clinic members.70 The theme of the report was
expressed as follows: “The main theme which runs throughout the report is the lack of resources in the clinic and the suggestions in the report are aimed, mostly, at dealing with
66 Ibid where the author notes “The PLS course should develop with a single theoretical base and room for
a variety of practical components. The classroom is the unifying base. All students attend the class and do their practical component in the clinic or research track.”
67 Ibid at 1 see attached annexure B. (original letter with author) 68 Ibid at 2 see attached annexure B.
69 The notes appear to be a product of 1989.
98 this problem.”71 Suggestions (challenges) made in terms of the report include, limiting
the types of cases, specialisation, supervision in smaller groups, student numbers (in 1989 — 42 students, 74 students in 1990, anticipate 160 from 1991 and to thereafter increase),72 clinical pedagogy and library resources. An action plan for each of the above
was recommended.
In 1989 Eva Nilsen and Eric Blumenson described the clinic as understaffed and overloaded with cases. Echoing the concerns of the Chaskalson letter of 1987, they noted that as a result the educational component took strain as well as the cases themselves, which may not have been handled adequately. They stated “In our judgment, the extraordinary efforts of the clinic staff do not suffice to provide adequate supervision of cases. This is the result of several factors, including the supervisory ratio; the lack of regularly scheduled meetings between student and supervisor; the irregular student schedule at the clinic, which results in students and cases bouncing between supervisors; … Supervision seems too often to be a hit-or-miss affair, and an important issue may never reach the supervisor because the student is unaware of it. (Indeed, there have cases where actions have been prescribed) … It is essential that the supervisory system be improved and tightened.” 73 Therefore, up until 1989 PLS/WLC was described as
unstructured and irregular.74