The recognition and status of private higher education qualifications have remained somewhat of a grey area for legal practitioners and candidate legal practitioners. While the requirements for admission as an attorney include that the candidate concerned has to have satisfied the LLB degree requirements, the exact standard of the LLB, as a requirement, has not necessarily been established. However, in early 2019, the Constitutional Court of South Africa (hereinafter 'the Court') made a ruling in this regard.
The matter involved, in principle, the Independent Institute of Education (Pty) Ltd and the Kwa-Zulu Natal Chapter of the Law Society. Although, most if not all public universities and professional law societies were adjoined as interested parties. The application requested that the court a quo's ruling be confirmed insofar as it declared S26(1)(a) of the Legal Practice Act 28 of 2014 (hereinafter 'the LPA') to be constitutionally invalid.
S26(1)(a) of the LPA states that:
"(1) A person qualifies to be admitted and enrolled as a legal practitioner, if that person has―
satisfied all the requirements for the LLB degree obtained at any university registered in the Republic..."
The application was successful in the lower Court as the High Court rationed that the provision was inconsistent with Sections 9 (equality), 22 (Freedom of Trade, Occupation and Profession), and 29(3) (Right to establish and maintain, at their own expense, independent educational institutions...) of the Constitution in that it excluded private higher education institutions offering duly registered and accredited LLB programmes from being recognised as a 'university.'
Once before the Constitutional Court, it was argued by the KZN Law Society that the word 'university' was defined not in the LPA but in the Higher Education Act 101 of 1997 as-
"a higher education institution...which meets the criteria for recognition as a university as presented by the Minister under section 69(d)..."
Since the Minister of Higher Education and Training (hereinafter 'the Minister') had not yet released such criteria, the Independent Institute of Education could not meet a set of standards that did not exist yet and therefore should not qualify under the LPA as a 'university.'
In its decision, the Court not only considered the matter before it but also the ramifications thereof for private higher education institutes in general. Mogoeng CJ explained that there was in fact 'no sound reason' as to why the word 'university could not carry its ordinary meaning which was inclusive of private institutions. Not only would it mean harmonising the law, but it would also save valuable legislative efforts in trying to amend the LPA to reflect the values of the Constitution.
It seemed as if the learned Chief Justice was demonstrating that although the High Court reached the proper destination intended by the values of democracy, it essentially took the 'long route' to get there.
Consideration was centred around the tree-stump of Section 29(3) with its roots in Section 39(2) of the Constitution. Thus, the harmonious interpretation of the word "university" would be inclusive of the private institution, which would satisfy an interpretation most appropriate to the furtherment of the Bill of Rights' objectives.
In an interesting application of the broader ramifications of exclusion, Mogoeng CJ asked the question of how it could be that foreign equivalents of the LLB degree can be accepted for consideration in terms of satisfaction of the requirements of the LPA, yet the domestic equivalent fell short?
Furthermore, the consideration of costs was of notable mention. Since the Minister did not oppose the application and stated an intention of actively addressing the applicant's predicament in parliament, the Court was of the opinion that the Minister had not 'failed to do anything he was supposed to do'.
Therefore, it was included that the KZN Law Society or KZN Legal Practice Council would subsequently be held liable for costs of both parties, including that of two counsel as it had been the source of the litigious nature the matter morphed into.
Private institutes may now confidently offer their duly registered and accredited LLB qualifications with the confidence that their graduates will not fall short come the day of admission as a legal practitioner purely on the basis that their qualification was not obtained from a public institution.
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