INForMaCIóN GENEral
OPERACIONES PERU toQuEPala
In the early nineties, the Campus Law Clinic transformed itself from a paralegal advice office into a fully fledged law office, teaching CLE.75 This was partly due to funding received from the Legal Aid Board (LAB) and several other donors (discussed below) and opportunities made available for clinical programmes to employ Candidate
71 Ibid see annexure C
72 See Clinton Bamberger document titled The Practical Legal Studies Course: Now and in the Future – 17
April 1990 at 2–3.
73 See Clinton Bamberger document titled The Practical Legal Studies Course: Now and in the Future – 17
April 1990 at 5.
74 Ibid at 4–5.
75 Also see the University of the Witwatersrand Faculty of Law Mission Statement dated 13 August 1993.
99 Attorneys.76 According to De Klerk “[d]uring the early 1990s an important breakthrough
was made when the Attorneys Act was amended, giving formal recognition to law clinics and allowing candidate attorneys to complete their internship at accredited clinics. …The Legal Aid Board (LAB) capitalized on this opportunity by entering into partnerships with various clinics whereby salaried professions were placed at the clinics concerned.”77 The
final year law students, with the exception of a select few who were eligible to undertake a research report as an alternative, were obliged to serve a year in the law clinic for which they would receive a credit.78
In April 1990, Clinton Bamberger wrote up a description of the clinic and proposed recommendations for anticipated future challenges within the programme. The document is titled The Practical Legal Studies Course: Now and in the Future. (see annexure F)79 The document presented an overall study of PLS/WLC and identified a number of relevant challenges that clinicians experienced in PLS/WLC. The document was divided into several parts including, purpose and method, structure, enrolment, clinical practice and supervision, the classroom component and recommendations for the years ahead. Each of the parts that are relevant to this thesis will be discussed.
Bamberger stated that the purpose of PLS was “Practical Legal Studies (PLS) / Campus Law Office [which] is a course that uses the clinical methodology of teaching. It is experiential learning. The course is rooted in law practice for clients, as opposed to simulation or critique of another practice…. A teaching law clinic is not an efficient provider of proper service to clients. Teaching is its primary function. Teaching takes
76 For further discussion on the Legal Aid Board see David McQuoid-Mason South African Models of
Legal Aid Delivery in Non-Criminal Cases at www.legalaidreform.org at 4–7 accessed on 20 July 2013. In addition to clinical programmes receiving money from LAB, further donor funding was made available by the Ford Foundation. In 1998 Ford Foundation contributed $1 million dollars towards the development of clinical programmes in South Africa. These funds were managed through AULAI Trust. Clinical
programmes were called on to request funding depending on their needs. See Chapter 3 for further discussion on AULAI Trust. The Wits Law Clinic however opted not to be a recipient of such funding as funding was received independently from the Ford Foundation. Also see document cited as
memos/mission.law pg 5 (copy with author).
77 De Klerk op cit 5 note at 931.
78 See Clinton Bamberger document titled ‘The Practical Legal Studies Course: Now and in the Future’ —
17 April 1990 at 2 where Bamberger confirms that since the beginning of 1990 PLS was considered as a “semi- compulsory” course offered to final year LLB students. Also see document cited as
memos/mission.law pg 4 where it was noted that “[t]he LLB curriculum has accordingly been revised to make the clinical programme nearly compulsory, in the sense that students require special permission to be exempt from it, and the bulk of the class is required to participate in it.”
100 time, resources, and energy from the practice. … The pedagogy of clinical legal education is founded on responsibility, reflection, and understanding. The students are responsible for law practice; responsible to the client and the watching attorney. The faculty lead the student to reflect upon what they have done, or plan to do, and to understand what they should do.”80 Bamberger’s description of the purpose of PLS
reflects what has been discussed regarding CLE in South Africa generally in chapter three — he clearly speaks of PLS within the context of clinical legal education and experiential learning. His usage of the words ‘experiential learning’ and ‘reflection’, identifies comfortably with what contemporary authors on the subject propose.
In terms of the structure of PLS, Bamberger described the course as being made up of three parts, classroom instruction, the practice in the Campus Law Clinic and students’ sessions with attorneys to examine their clinical practice. Bamberger described the third component as “[t]he sessions with the attorneys are in two forms. The first we call tutorials: when a pair of students meets with the attorney to discuss their work. The second is the case review sessions when all of the students supervised by an attorney meet to discuss selected cases.”81 This structure resembles partly how PLS/WLC operates today.
On clinical practice and supervision Bamberger stated: “The Campus Law Office is the site of the practice experiences for the students and the source of material for instructive supervision by the faculty. The Campus Law Office is not an ‘advice office’. It is a law office. Clients are given legal assistance; advice and advocacy.”82 Once again
this description resonates with the present status of the WLC. He describes the programme in 1990 as organised, structured and one that offers continuous and regular supervision.83
The classroom component included a double lecture period each week during term. The contents of the lectures included substantive law, procedural law, ethics,
80 Ibid at 1–2.
81 Ibid at 1-2. 82 Ibid at 4.
101 structure and function of the legal profession and the theory and practice of lawyering skills.84
On time spent by students on the course, Bamberger confirmed that students devoted between eight and ten hours a week to PLS/WLC. The times were made up as follows, two hours in the Campus Law Office, forty-five minutes in tutorial sessions, forty-five minutes in case review sessions with their law firm, and an hour and a half in the classroom. In addition students spent five hours researching and dealing with their cases.85
On challenges anticipated for the years ahead Bamberger claimed that they included student numbers and availability of staff required to provide adequate supervision. He stated that: “An overcrowded clinical course is worse than none at all. The point bears emphasizing. The clients are poorly served, even injured. The students are taught nothing, or the wrong lessons.”86
Therefore, Bamberger proposed the following options in an attempt to address future challenges: employment of additional clinical staff, PLS continue as a elective therefore reducing student numbers, reducing the time spent by students in the clinical component, teaching part of the course through simulations, street law as well as other practical engagements to be offered as an alternative (other engagements include placement on a Pro Deo basis with Advocates, placements at Dispute Resolution Centres, and public interest practices including the Centre for Applied Legal Studies).
On or about May 1993,87 in an attempt to address the challenge of transformation,
a document was drafted identifying the Campus Law Clinic (CLC) as an initiative (or development) aiming at addressing this challenge. In this document the goals of CLC were identified as “to improve the quality of the legal education offered to its students, and especially its black students; to enhance the prospects of employment of its graduates, and especially its black graduates; to improve the supply of legal services to
84 Ibid at 8. Students were required to prepare for class “To prepare for each class the students are required
to write a response to a legal research problem and to prepare an abbreviated memorandum on the substantive law, procedure, or lawyer task that is the subject of the class.”
85 Ibid at 9. 86 Ibid at 10.
102 the community, and especially the black community, both immediately and, by the special kind of education that the Clinic offers, in the future.”88
On 13 August 1993 as part of a document titled Draft for Discussion — University of Witwatersrand Law School Mission Statement service to the community through the provision of legal assistance was committed to. (See annexure G) As part of the statement the Campus Law Clinic and Centre for Applied Legal Studies were designated to provide such services. The statement further addressed the means by which these objects could be achieved and with specific reference to this paper the Law Faculty committed to “increase the number of posts for attorneys in the Law Clinic so as to meet the demands of adequate supervision of students working in the Clinic and increase the number of members of the public to whom we can render assistance.”89
Other significant developments that should be noted during this period include the increase in funding for the WLC and PLS from the Legal Aid Board (LAB)90 and Attorneys Fidelity Fund (AFF).91 The money received from the LAB further promoted the access to justice mission of the clinic whilst funding from the AFF was directed towards the clinical Directors salary, with the ambition of advancing the educational component of PLS. While the LAB concentrated on the quantity of cases dealt with by the WLC, the AFF advanced funding for the educational component linked to PLS. During this period further financial support was received from the Anglo American Chairman’s Fund, the Ford Foundation, Liberty Life Education Trust and Johannesburg Consolidation Investment Company.92
In 1994, Philip Iya wrote The 1994 P.L.S Course Evaluation — A summary with
identified problem areas and some suggestions93(see annexure H). In this document Iya
88 Ibid at 3.
89 University of the Witwatersrand Mission Statement — 13 August 1993. (copy with author)
90 See Peggy Maisel Clinical Legal Education South Africa Part 1 A statistical report. (unpublished copy
with author) pg 2 where the author notes “ In 1993 the Legal Aid Board, which is a government funded agency started a process of providing grants for the representation of indigent people by entering into a partnership with individual universities to establish legal aid clinics in conjunction with existing university based law clinics.” The LAB appointed an in house attorney to facilitate its function. Also see De Klerk op cit note 5 at 931. For further discussion on the Legal Aid Board see McQuoid-Mason op cit note 76 at 1–19 at www.legalaidreform.org accessed on 20 July 2013.
91 Also see De Klerk op cite note 5 at 931.
92 The author has in her possession a copy of a budget breakdown of PLS/WLC in 1995.
93 Philip Iya ‘The 1994 P.L.S Course evaluation — A summary with identified problem areas and some
103 discussed a number of matters after receiving feedback from students on the course. On course content/structure/organisation/relevance, students raised the following concerns, the length of the course and volume of work during the year. In view of the concerns Iya suggested: extending PLS to two years, retaining the one year but dedicating it solely to PLS or the transfer of some of the components of the PLS course into the LLB course so as to reduce the work load. On clinic work with cases, students raised the following concern: the scope of the cases was limited —addressing not only the nature of cases, but also the skills taught which throughout the course were dispersed. In view of these concerns Iya suggested the introduction of a balance between clinic-based training with skills-based training. On tutorials the main problem was staff to student ratio. Iya himself identified this area as problematic and proposed no immediate solution.
The information presented in this dissertation for the period between 1996 and 1998 is taken from the author’s experience as a student in PLS/WLC (1996) and as a Candidate Attorney (from 1997-1998) at the WLC. From a student’s perspective, PLS was an elective course offered in the final year of the LLB degree. Students were paired with a partner and allocated to a clinician. The clinic operated as a general clinic and students were expected to engage on a variety of cases. The structure of the course comprised of plenary lectures, compulsory tutorial sessions and compulsory clinic attendance. From the authors experience there was little emphasis on the educational elements of CLE but rather a firm understanding on quantity of cases dealt with. As a Candidate Attorney (CA) the author was assigned a Principal who assumed the responsibility for her training. As CA’s we were expected to engage on a variety of cases, consult with clients and represent clients at both the Criminal as well as Civil Magistrates Court. We were expected to consult with our Principal on a regular basis. It was the responsibility of the Principal to give direction on cases and oversee all drafting.
By the end of the 1990s, as a response to the demands for skills teaching from the profession and at a point when the four year LLB degree was introduced, the Law Faculty at Wits declared PLS/WLC as a compulsory final course within the LLB degree. This decision had a double barrelled impact for PLS/WLC – on the one hand this decision was a positive one as PLS/WLC had finally gained recognition as an necessary course in the curriculum on the other hand with the increase in student numbers and limited teaching
104 staff the ratio of clinician to students increased and the law school failed to increase the number of staff needed to assist with supervision. It was therefore left up to the academics within PLS/WLC to consider how to deal with these challenges. In an attempt to address this challenge, clinicians sought funding outside of the university. Further discussion on funding received is noted below. Aside from Moot Court (which was and continues to be an elective) PLS/WLC was the only other course that taught practical legal skills.
Drawing an analysis from an educational perspective, by the end of 1990, PLS had made steady progress within its own defined space in the law curriculum. It was enlightening to discover that over the years clinicians continued to discuss the strengths as well as the challenges of the programme. The strength of the course continued to be that PLS was the primary course offering practical legal training and its model was unique to any other method of teaching adopted within the law degree. Funding received from the AFF reflected positively for the advancement of the educational component of the course. However, the challenges of balancing the demands of the model with the need to educate the students within a structured curriculum continued, as did the demand to sustain the method of teaching, particularly in relation to constraints in resources.94
Nevertheless, up to this point PLS/WLC continued as an isolated course and there appears to be very little evidence (if any at all) of any serious consideration for understanding PLS within the context of a methodology that could be incorporated into other courses in the LLB degree.
From an access to justice perspective — as briefly discussed above — the challenges of balancing teaching and service delivery continued (in fact this continues to date). As noted by Bamberger “[c]linical faculty and students everywhere are pulled in opposite directions by the demands of service and teaching. The tension is worse in South Africa. There are so few providers of legal assistance for the poor. There are more clients
94 See document titled Internal Memorandum – Proposed Law Faculty Plan for reduction of personnel and
other costs — 1997 and 1998, written by Carole Lewis (Dean of the Law Faculty) to The Council Review Committee – 12 February 1997 pg 1- 6 at 3 where it was noted “We have been asked to achieve a 3 per cent reduction in operating costs in 1997. This is extremely difficult in the Faculty of Law, since as part of our teaching programme, students are required to do a course in Law Clinic…. Although the Faculty has raised funds for operating costs for the Clinic in the past, it has become increasingly difficult to do so.…”
105 at the clinic’s door than can be admitted, if the staff and students did nothing else.”95 The
increase in the role that the LAB played in PLS/WLC in fact presents a double edge sword — on the one hand the funding was much needed by the clinic to sustain its expenses, on the other hand the demands that such funding placed on clinicians was (and continues to be) overwhelming. Of course, the question that this challenge raises is: Is external funding necessary in light of the pressures it poses on delivering quality education to our students?