An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Some participants to this Blog have raised interesting and important questions about the state of legal education in this country and the fact that many students (many but by no means all of them black) who embark on legal studies never obtain a qualification. How will the legal profession (from law firms to the judiciary to legal academia) become representative of the population if more black students do not obtain their degrees and what can be done about it?
This is something I feel rather passionate about, so let me give my two cents worth on the topic.
For the past fifteen years I have been teaching at the University of Western Cape where more than 95% of the students are black. Like at most other Universities in South Africa, large numbers of students at UWC fail to complete their degrees or do not complete their degrees in the designated time. This is not much different from when I was a student at (then almost exclusively white) Stellenbosch University Law Faculty. (One Professor in first year asked us to look around us and then said that half the class would not complete their LLB degree!)
There are many different reasons for this state of affairs. I would be the first to say that many students fail because they cannot cope with the sudden freedom of University life. Instead of attending lectures, spending long hours in the library reading cases, and studying for tests and exams, some students are so exhilarating by their new found freedom that they party too much, play klawerjas in the student union, lounge around with friends or pursue the opposite (or same) sex. Some are just plane lazy and do not want to accept that legal studies require obscene amounts of work.
But students coming from poor families (who are mostly black) face special challenges. Many of such students received a sub-standard school education and arrive at University without the academic literacy skills required. Many others are forced to learn the whole new language of law in their second or third language (English) and struggle to master the nuances of the English language as applied to law.
Many other students, supported by their families, also face extreme financial difficulties and can often not afford the textbooks or money for printing and copying and must borrow materials to prepare for tests and the exam. Often students who pass a year still drop out because they run out of money. Hopefully they will go off to work and return later to complete their degrees but some never do.
How do we solve these problems? I for one, do not believe that a strict entrance exam is the solution. I have seen too many students with relatively mediocre school results, struggling in their first year, only to blossom into excellent students who go on to do articles at big law firms and turn into successful lawyers. Many black students whose parents could not pay the exorbitant school fees of so called Model C schools only need time and personal attention to reach their true potential. A strict entrance exam will punish such students and will reward those students with rich or upper middle class parents and that would be extremely unfair and would in effect discriminate on the basis of race.
Some University Professors – especially at so called previously advantaged universities – would argue that Law Schools are by definition elite institutions and that we are here to provide students with the excellent education of an Oxford or a Cambridge and that it should be up to students to sink or swim. Maintaining “high standards” would mean maintaining the fiction that all students had more or less the same opportunities and demanding that students act like little black Oxonians.
This seems deeply discriminating to me. The only way to deal with the vestiges of apartheid is to recognise the problem and to put programmes in place to deal with it. This might require some students to do a 5 year LLB instead of a 4 year LLB and ensuring that students at risk get lots of small group attention where writing and other academic literacy skills are honed.
It also requires institutions to adopt its institutional culture to accommodate the needs of especially black students who often feel alienated and dispirited by what they experience as a hostile white world. Appointing more black lecturers and especially black professors who can act as role models and can inspire and motivate black students is also essential.
All this, sadly, costs money – lots of it. And this is something universities do not always have. I suppose we have to do what we can with what we have. In doing that I passionately believe that one should not and need not subject black students to the bigotry of low expectations. Acknowledging the problem is not the same as disregarding “merit” or accepting lower “standards”.
Often, small things can make a huge difference: by showing students respect, letting them known that one believes in their abilities and are rooting for them, inspiring and cajoling them and spelling out clear expectations can often mean the difference between a student dropping out or passing with flying colours.
And when I sit in the Great Hall on graduation night and one student after the other proudly marches up to the stage to be capped, their parents who might never have had to the chance to get a higher education because of apartheid cheering and ululating and dancing the isles, I always know that it is worth the effort. Who can ask for a better job.BACK TO TOP