In a case that has significant implications for registered and accredited Private Higher Education Institutions in South Africa, the Pietermaritzburg High Court on Friday ruled in favour of The Independent Institution of Education's LLB Degree.
On 22 February 2019, Acting Judge (AJ) Carol Sibiya found that students currently studying towards The IIE's LLB degree at Varsity College are as qualified to enter the legal profession after graduation as students at Public Universities. Varsity College is a brand of The Independent Institute of Education (The IIE), whose other brands include Vega and Rosebank College.
In passing judgement, 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 precluded students from Private Institutions from doing so.
The declaration of unconstitutionality still needs to be confirmed by the constitutional court.
The application by The IIE – which was opposed by the KZN Law Society - to have the offending section declared invalid arose in 2018 following an enquiry by a parent of a student at The IIE's 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) 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 created 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 in 2018. The judgment ends a period of anxiety for over 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.
"We were always confident of our position," says Dr Felicity Coughlan, Director of The Independent Institute of Education.
"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 says 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 IIE's Varsity College Managing Director, Louise Wiseman, says they are celebrating the outcome.
"Our graduating students will be able to apply with confidence to any law society, to be admitted as candidate attorneys anywhere in South Africa."