INJUSTICES FACED BY UNDERPRIVILEGED LAW GRADUATES: CRIMINALIZATION OF POVERTY AMONGST LAW GRADUATES

Authored By: Lindokuhle Hlongwane

University of South Africa

Abstract

This article delves into the obstacles that underprivileged law graduates encounter as they seek to enter the legal profession. It contends that despite constitutional safeguards and laws designed to promote equality, persistent barriers such as the high costs associated with traditional training and discriminatory hiring practices continue to put these graduates at a disadvantage. The author references the Legal Practice Act of 2014 ¹and transformative constitutionalism as legal frameworks that have yet to be fully enforced, resulting in the criminalisation of poverty among law graduates. The article concludes by advocating for more concerted efforts to address these injustices and bring genuine transformation within the legal system.

Introduction

The concept of transformation in the legal sector has been widely discussed but has struggled to translate into tangible changes. The advent of democracy in South Africa offered hope to those who had been marginalised under the apartheid regime. However, 30 years into democracy, the unemployment rate remains high, particularly among young people. Previously, obtaining a university diploma or degree seemed like an unattainable dream. While democracy has opened doors for the previously marginalised, systematic oppression still presents significant barriers for underprivileged law graduates. This not only highlights the lack of real transformation within the legal community but also underscores how poverty has been unjustly stigmatised. For the theoretical transformation to materialise, a re-evaluation of the traditional path to becoming a practising lawyer is necessary. Alternatively, there should be efforts to reduce the associated costs of pursuing this conventional route.

Transformation in the Legal Fraternity

“a person qualifies to be admitted and enrolled as a legal practitioner, if that person has-

(a) Satisfied all the requirements for the LLB degree obtained at any university registered in the Republic, after pursuing for that degree-

(i) A course of study of not less than four years; or

(ii) A course of study of not less than five years if the LLB degree is preceded by a bachelor’s degree other than the LLB degree, as determined in the rules of the university in question and approved by the Council; etc.”

COPYRIGHT WARNING: This article, as a guideline for how transformation in the legal fraternity can be attained, MUST NOT be copied, distributed or uploaded anywhere without the permission of the author.

The Centre for Applied Legal Studies published a Research Report in August 2014²On the Transformation of the Legal Profession, emphasising that transformation involves removing barriers that hinder talented individuals from marginalised groups, such as blacks, women, and lesbians, living with a disability or disease, from accessing opportunities to develop and acquire skills, experience, and knowledge within the legal profession. It is not about facilitating the appointment of less qualified individuals to senior positions, but rather about creating a more inclusive and diverse legal fraternity.

The late Justice Pius Langa, former chief justice of the Constitutional Court of South Africa, deliberated on transformative constitutionalism³, emphasising that the definition of transformation in legal terms is highly debated and challenging to articulate. He suggested that, in line with the essence of transformation, there is no singular, fixed interpretation of transformative constitutionalism. Additionally, he posited that transformation represents a social

and economic revolution, pointing out the current challenges in South Africa, such as unequal and inadequate access to housing, food, water, healthcare, and electricity. He referenced former Chief Justice Chaskalson’s statement in the Soobramoney v Minister of Health, KwaZulu-Natal 1998 case⁴, wherein Chaskalson highlighted the hollowness of the aspiration for substantive quality in the face of persistent adverse conditions.

Former Chief Justice Pius Langa emphasised that providing services to all and addressing the economic inequalities caused by the apartheid system should be central to the idea of transformative constitutionalism. He explained that transformation should focus on fulfilling socio-economic rights and increasing access to education and opportunities through measures like affirmative action.

He stressed that establishing a genuinely equal society and ensuring basic socio-economic rights for everyone are essential aspects of transformation.

Section 9 of the Constitution of the Republic of South Africa, 1996⁵asserts that all individuals are equal before the law and have the right to equal protection and benefit from the law. It also emphasises that equality encompasses the full and equal enjoyment of rights and freedoms. The section also allows for legislative and other measures to promote equality by protecting or advancing persons or categories of persons disadvantaged by unfair discrimination.

Furthermore, the state or government is prohibited from unfairly discriminating directly or indirectly against anyone on various grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth. National legislation must be established to prevent or prohibit unfair discrimination.⁶.

Discrimination on any of the listed grounds is deemed unfair unless it can be demonstrated that the discrimination is fair.

Section 26 of the Legal Practice Act, 28 of 2014, outlines the qualifications necessary for admission and enrolment as a legal practitioner. To be admitted, a person must have completed all requirements for the LLB degree from a recognised university in the Republic, following a course of study of at least four years. If the LLB degree is preceded by a bachelor’s degree other than the LLB, the course of study should be at least five years, as determined by the university’s rules and approved by the Council. Alternatively, one must have met all the requirements for a law degree obtained in a foreign country, equivalent to the LLB degree, and recognised by the South African Qualifications Authority. Additionally, the individual must have fulfilled all practical vocational training requirements as a candidate legal practitioner, including community service and a legal practice management course. The candidate must also pass a competency-based examination or assessment as determined by the rules.

Furthermore, an attorney qualifies to be enrolled as a conveyancer upon passing a competency-based examination or assessment, as determined by the Council’s rules. Similarly, an attorney qualifies to be enrolled as a notary after passing a competency-based examination or assessment, as determined by the Council’s rules.

Lack of implementation

The Constitution of the Republic of South Africa promotes an egalitarian society where individuals have the opportunity to thrive in their chosen professions, religious beliefs, cultural practices, and more. However, the realisation of this transformative vision outlined in the Constitution has not been fully achieved. Instead, unemployment rates have surged to around 35% overall, with youth unemployment reaching approximately 45%⁷. There is a growing concern in the country regarding the high percentage of unemployed youth, particularly among those who have completed their education.

In the past, education was unequal due to apartheid laws, which prevented people of colour from accessing higher education and obtaining university diplomas or degrees.

Today, young people have the opportunity to pursue higher education, but the lack of implementation of the country’s laws and divisions among communities based on economic, religious, cultural, ethnic origin, and gender have hindered the process of transformation.

Former Chief Justice Pius Langa made a significant contribution to transformative constitutionalism by emphasising the importance of addressing the socio-economic needs of previously disadvantaged groups in South Africa. Even though his contribution was made almost 20 years ago, the issue of socioeconomic rights continues to be a prominent factor hindering transformation within the legal profession.

Many disadvantaged law graduates relied on the National Student Financial Aid Scheme (NSFAS) to fund their studies and cover their living expenses. After graduation, if they are unable to find employment, they often return to their previous socio-economic circumstances, contributing to the high unemployment rate among young graduates.

The Legal Practice Act 28 of 2014 serves as the designated legislation governing the function of the Legal Practice as a professional space for all legal practitioners, including attorneys and advocates. At first glance, the guidelines for becoming an admitted attorney or advocate seem straightforward, but in reality, they are more complex than they appear.

Upon completion of an LLB degree, candidates pursuing the traditional route of litigation are required to enter into a Practical Vocational Training (PVT) contract for 2 years with a law firm, unless they have completed the full-time law school program, Practical Legal Training, which reduces the PVT contract to 1 year. However, due to the high costs associated with the practical legal training class, many underprivileged law graduates opt to skip the class and apply directly to law firms for a 2-year PVT contract. Unfortunately, most firms express a preference for candidates with an LLB degree and Practical Legal Training, which often results in these graduates being disqualified from consideration for interviews.

Many law firms still request a driver’s license, despite the LPC’s decision to abolish such requirements.⁸. This practice unfairly discriminates against candidates and penalises those who cannot afford a license or obtain a PLT certificate.

This not only demonstrates the lack of progress within the legal profession but also highlights the injustices faced by underprivileged law graduates, as their poverty automatically disqualifies them from entering the profession.

Despite 30 years of democracy and possessing one of the world’s most highly regarded constitutions, South Africa still has much work to do in addressing transformation within its legal system. This is crucial to mitigate the injustices experienced by underprivileged youths in the country.

Steps can be taken to address this Injustice

Firstly, the Legal Practice Council can hold accountable those law firms that still put advertisements that are against the regulations of the LPC⁹when looking to hire Candidate legal practitioners for a position in their law firms. In a practical sense, graduates can complain all they want if the council responsible for enforcing the law is not strict enough, someone starting their career cannot fight against a corporation that has been established a long time ago. Therefore, the LPC must execute their duties concerning this growing concern about the lack of transformation within the profession, as it was created mainly to deal with issues related to how law is practised by law firms and to hold accountable those who commit unlawful acts within the profession.

Secondly, the Legal Practice Council must make the Practical Legal Training feasible for everyone, either by providing a loan option for those who are not able to pay for the PLT or allowing for a reasonable instalment plan than the one currently in operation, which requires a candidates to pay an amount of approximately R20 000 and some change within a space of 2 months. For the longest time, this systematic injustice in the legal profession has continued to hold those who cannot afford to pay for their law school at ransom by criminalising their lack of funds.

Thirdly, real transformation calls for the implementation of what is guaranteed by the constitution and the letter of the law. Without this, such injustices continue to hurt the community at large and in achieving an egalitarian society as envisioned by the late Chief Justice Pius Langa and the late Chief Justice Chaskalson.

Lastly, more internships that offer a stipend need to be available to a structured degree like the LLB degree, which will assist in reducing unemployment amongst law graduates and can make the workforce easily accessible to someone out of university who might not want to go the traditional route but lack experience that sometimes is required by companies for someone with an LLB degree.

In recent years, there has been a concern that law graduates lack critical thinking skills, analytical skills, and practical skills.¹⁰. How the law degree has been structured makes it more theoretically inclined in the South African context, and that makes many law graduates not practice-ready after graduation. Internships that also provide a stipend, which eliminates unemployment, can have a huge impact on the transformation of the legal field and the growth of the upcoming lawyers as well.

Conclusion

In conclusion, the constitution of the Republic of South Africa envisions an egalitarian society where individuals can thrive regardless of their background. However, the lack of implementation of laws and divisions among communities hinder the transformation outlined in the constitution. This is particularly evident in the legal profession, where underprivileged law graduates face barriers to entry and discrimination based on socio-economic circumstances. Addressing these issues is crucial for South Africa to achieve true transformation and provide equal opportunities for all its citizens. A new and transformed system is the way to go in reaching a complete transformation of the legal system.

Bibliography:

Primary sources

Cases:

Soobramoney v Minister of Health, KwaZulu-Natal1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (27 November 1997).

Statutes:

The Constitution of the Republic of South Africa, 1996.

The Legal Practice Act, 2014.

Reports:

Transformation of the Legal Profession ‘Report by the Centre for Applied Legal Studies’ (2014) Articles:

Justice Pius Langa, Transformative Constitutionalism, STELL LR, 2006, 3, at 351-354.

DU PLESSIS, M A (Riette) and WELGEMOED, Marc. Training for legal practice – towards effective teaching methodologies for procedural law modules.

Websites and blogs:

Stats SA, Department: Statistics South Africa on the Unemployment in South Africa: ‘A Youth Perspective’ (Stats SA,17 May 2024) https://www.statssa.gov.za/?p=17266 accessed 23 August 2025.

¹Legal Practice Act, 2014, at s26 states that;

²Transformation of the Legal Profession by the Centre for Applied Legal Studies (2014), paras 4.1. https://www.wits.ac.za/media/wits university/faculties-and-schools/commerce-law-and-management/research-entities/cals/documents/ /gender/Transformation%20of%20the%20Legal%20Profession.pdf

³Justice Pius Langa, Transformative Constitutionalism, STELL LR, 2006, 3, at 351-354.

⁴1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (27 November 1997).

⁵Constitution of the Republic of South Africa, 1996 at s9 advocates for an equal society where there is no unfair discrimination directly or indirectly against anyone on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, etc.

⁶Constitution of the Republic of South Africa, 1996 at s9(3).

⁷Stats SA, Department: Statistics South Africa on the Unemployment in South Africa: ‘A Youth Perspective’ (Stats SA,17 May 2024) https://www.statssa.gov.za/?p=17266 accessed 23 August 2025.

⁸Rule 22.1.11.1 of the Legal Practice Act states that an attorney seeking to employ a candidate legal practitioner will be found guilty of misconduct if he/she enquires whether the applicant is in possession of a valid driver’s license, owns/has access to the use of a vehicle for use in the course of his/her prospective employment. Government gazette No. 44068 at www.gpwonline.co.za

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¹⁰DU PLESSIS, M A (Riette) and WELGEMOED, Marc. Training for legal practice – towards effective teaching methodologies for procedural law modules.