Malcolm Combe visits the University of Stellenbosch Legal Aid Clinic

by Malcolm Combe

I am on research leave at the moment. This has taken me to Stellenbosch in South Africa. There are a few reasons why Stellenbosch has been my appointed destination, mostly to do with land law and specifically land law reform: thanks again to the Carnegie Trust for the Universities of Scotland for providing funding for this research trip. I hope it, and my readership, will forgive me for a dalliance in another interest: student law clinics. At the same time as having lots of interesting land matters to keep me occupied, the University of Stellenbosch has a long-established Legal Aid Clinic. Since I was in the area, I arranged to visit.

The Legal Aid Clinic, or Regshulpkliniek in Afrikaans, is very different to the law clinics I have visited before. That point was aptly demonstrated by the fact the receptionist greeted me in Afrikaans. It actually took me a moment to twig she was speaking to me, as another thing that I was busy taking in was that the reception area was rather busy (with the adminstrator, case workers and a client all buzzing around the reception desk), but when I did realise I answered in English and the receptionist switched to that language. Later, whilst I was waiting for one of the clinicians based at the Clinic to greet me (having for once in my life arrived early for an appointment), there was a moment when the client was struggling to understand the instructions that were being given to him. I suspect such language issues prevail in South Africa more than they do in Scotland: after all, there are eleven official languages in South Africa, not to mention contemporary immigration from other parts of Africa. The staff and/or volunteers (I am not sure of the exact staff/volunteer mix that I was witness to) handled the issue as adeptly as they could.

I then met one of the team of staff working at the Clinic, whose enthusiasm for all matters clinical legal education shone through. In fact (and I am not just saying this) he told me he had read and referred to my article ‘Selling Intra-Curricular Clinical Legal Education’, and it was gratifying to know my that work had been useful to someone else and indeed somewhere else. My article had apparently a certain relevance to do with the possible introduction of a third-year compulsory module that would involve practical work: some simulated, some clinical. I will keep my eyes open for developments surrounding that and blog about developments in that regard when it is possible to do so.

We also spoke about the organisation and the day to day running of the clinic. Apparently there was a staff of around 15 (which is more of a staff than any of the Scottish law clinics), including paralegals and qualified solicitors. The building itself – a relatively short walk from the School of Law – was dedicated to the law clinic. I was also shown the sign-in sheet for the month of April: something like 100 clients had called on the clinic between 1 and 25 April.

Perhaps I should take a moment to pretend I understand the situation in South Africa as regards access to justice. Whilst I am an outsider to the situation in South Africa, there are a few South Africans who have already given me something of an insight. In fact, one South African in particular is somewhat to blame for my ongoing interest in pro bono work, namely Professor Donald Nicolson. Yes, his name does appear somewhat Scottish, but he is a South African who founded the University of Strathclyde Law Clinic when I was an undergraduate. I have a rough recollection of his stories of the somewhat unregulated clinics that sprung up in the second half of the 20th century in South Africa, and my understanding is that Stellenbosch’s Legal Aid Clinic started off as students doing their own thing before coming under the supervision and banner of the University. I also have a rough recollection of Donald telling us about the nature and volume of cases South African law clinics had to contend with, which I suppose can be best explained by reference to a recent article in the International Journal of Clinical Legal Education by the man himself: ‘“Our roots began in (South) Africa”: Modelling law clinics to maximise social justice ends’.

Mention must also be made of the legendary Street Lawyer, Professor David McQuoid-Mason, another suspiciously Scottish-sounding South African. David has been a great friend of the Scottish University Law Clinic Network (for example, attending events in 2013 and 2014) and I recall his stories of the huge classes of law students he trained in Street Law teaching or the inquisitive children he taught through Street Law.

Lastly, I should acknowledge the two South Africans who Skyped into the Scottish University Law Clinic Network conference in 2015, who gave insights into pro bono public interest litigation. One particular case they spoke of was in connection with obtaining access to HIV retrovirals for expectant mothers, a tremendous achievement and again an example of the kind of things where there are access to justice issues in South Africa. And it is not just access to justice or indeed access to medication that are issues, it is also access to the civil, political, cultural, economic and social rights that I am guilty of taking for granted. This is a nation that ‘is home to the biggest inequality gap in the world’. That media statement I have just linked to is from the Nelson Mandela Foundation, issued on Freedom Day. Freedom Day commemorates the first fully democratic elections in South Africa, which happened on this day in 1994. That was a watershed moment, but it was not a magic wand that fixed everything.

So what can I learn from this visit to a South African law clinic, and South Africa in general?

First, there are teaching lessons, in terms of comparing and contrasting course offerings. Aberdeen at the moment offers an elective (non-compulsory) third-year course, whereas Stellenbosch could be moving towards that compulsory offering by way of a third year module incorporating the clinic. That said, a direct lesson is instantly qualified by the fact that South Africa does not have the same vocational training phase as Scotland has (via the Diploma in Professional Legal Practice), which is a reason why a compulsory practical skills course could be extra suitable in South African law schools. Meanwhile, Aberdeen might be moving towards offering a Diploma elective in clinical legal practice, but there is no direct lesson for me from Stellenbosch.

Second, there are organisational and practical lessons, in terms of comparing and contrasting the Stellenbosch model and indeed the scale. If the Aberdeen Law Project – the student-led pro bono initiative based at the University of Aberdeen – was to try to upscale in such a way, this would require serious consideration as regards supervision and accommodation. Plus, it would be wrong to upscale just for the sake of it: I have not undertaken any comparison of legal aid in Scotland and South Africa, so I do not have a fully formed idea how much of a comparative gap there is to plug as between the two jurisdictions (but I do note there is a co-operation agreement between Legal Aid South Africa and a number of universities, including Stellenbosch).

As such, there might be some take-home lessons for me. Although perhaps the main take-home lesson is that there is a squad of committed staff and students at Stellenbosch trying to make a difference, for the public good. Good luck to them.

One final thought: amidst all the other stuff we spoke about, the clinician I spoke to asked me about the official reason I was in South Africa, namely to research land law reform. The key question for that South African, who has day to day experience of fighting evictions for indigent persons using devices like the Extension of Security of Tenure Act 62 of 1997 (in rural and peri-urban areas) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (in urban areas), was as follows: why are you land reforming in Scotland? I began my usual exposition, but as I was explaining I could not help but reflect on the size of the township I passed between Cape Town and Stellenbosch, and in turn reflect on the huge issues that post-Apartheid South Africa still has to contend with. That media statement of the Nelson Mandela Foundation highlights that ‘an estimated 200,000 people have no homes to go to’. Even the airport which I landed at is faced with its on land question. For fear of making any glib comparisons, I will leave the topic of access to land in Scotland and South Africa hanging for now, but that is something I will return to.