The Pietermaritzburg High Court has ruled in favour of the Independent Institution of Education’s LLB Degree and has given the minister of justice and constitutional development, Michael Masutha, one year to change the Legal Practice Act.
The ruling means that law graduates from private colleges are just as qualified to enter the legal profession in in the same way as their counterparts from public universities.
The ruling in favour of the Independent Institution of Education’s LLB Degree has significant implications for registered and accredited private higher education institutions in South Africa.
On Friday, 22 February 2019, Acting Judge (AJ) Carol Sibiya found that students studying towards the IIE’s LLB degree at Varsity College are qualified to enter the legal profession after graduation.
Varsity College is a brand of the Independent Institute of Education (IIE), whose other brands include Vega and Rosebank College.
In passing judgment, Sibiya (AJ) declared section 26 (1) (a) of the Legal Practice Act (LPA) constitutionally invalid insofar as it only allows LLB graduates from public universities to enter the profession and precludes students from private institutions from doing so.
The ruling, which still has to be ratified by the Constitutional Court, is suspended for one year in order to give the minister of justice and constitutional development the opportunity to change the problematic sections of the Act.
The matter, which was brought by the IIE and opposed by the KZN Law Society, sought to have the offending section declared invalid. It arose in 2018 following a query by a parent of a student at the Varsity College to the KZN Law Society.
The Law Society’s response was to say that only graduates from “universities” could be permitted to become candidate attorneys and therefore the IIE’s qualification would not be recognised for this purpose.
Sibiya (AJ) said she could find “no rational basis” for differentiating between persons with an LLB degree, particularly given that the Council for Higher Education (CHE), the highest educational authority in the land, confirmed that there was no difference in the quality and outcomes of the IIE’s 4-year LLB and that of Public Universities.
She found that the distinction created by Section 26 was an unnecessary and unjustifiable limitation to entry into the profession.
The IIE’s LLB degree was accredited by the CHE in 2017 and was offered for the first time last year.
The judgment ends a period of anxiety for more than 400 law students and for The IIE, who were perplexed by a seeming conflict between the Higher Education Act, through which degrees at Private Higher Education institutions are deemed equivalent to those from Public Universities, and the LPA, that drew a distinction.
Commenting on the ruling, Dr Felicity Coughlan, Director of The Independent Institute of Education. said: “We were always confident of our position. However, the uncertainty that existed in the law created a great deal of unnecessary consternation for our students and their parents.
“The issue has its roots in the old Attorney’s Act of 1979. When the new LPA was promulgated the offending clauses were merely carried through, when the word ‘University’ ought to have been updated to read ‘Higher Education Institution’.”
Dr Coughlan said further confusion arose as a result of the fact that while previously private institutions in South Africa were not allowed to be called ‘Universities’, amendments to the Higher Education Act in 2017 now permit this.
“However, the criteria for an institution to be recognised as a University have not yet been communicated by the Minister of Higher Education or included in the amendment, which effectively means that it remains impossible for any Private Higher Education Institution to be called a University, despite equivalent qualifications. This was a matter also dealt with in the judgment.”
The Varsity College Managing Director, Louise Wiseman, said: “Our graduating students will be able to apply with confidence to any law society, to be admitted as candidate attorneys anywhere in South Africa.”
– African News Agency (ANA)