During the apartheid era prosecutors at district courts usually did three year law degrees or diplomas, and hence were nowhere near as well paid as regional court magistrates, who usually spent five years at university while following a path that also allowed them to practise as attorneys in the private sector (a B.A law or B.Com law degree followed by a two-year LLB post-graduate degree).
However, in 1998 government introduced a four-year LLB degree that did away with the need to do an undergraduate degree, to make it easier for black candidates to qualify as attorneys. It also decided that prosecutors at the district court would in future need to have the same qualification. This has led to a situation in which a district court prosecutor usually has the same qualifications as a regional court prosecutor, but earns far less. In addition, due to the desire to speed up transformation, prosecutors with as little as four years experience are often appointed to the regional court and therefore are sometimes less experienced than district court magistrates.
Consequently, many district court prosecutors believe they should be earning the same as regional court prosecutors (between R510,000 and R1.2m per annum). Some are even threatening to go on strike while complaining that they have been overlooked for promotion because they are black.
This demand is highly unrealistic: newly qualified district court prosecutors are already earning significantly more than newly qualified high school teachers, who also have to spend four years at university. Giving district court prosecutors a huge increase is hence likely to result in teacher unions complaining about unfairness and threatening to go on strike. Other government employees are also likely to jump on the bandwagon.
In short, the government is caught — due to transformation - between the devil and the deep blue sea. Unfortunately, the problem does not end there:
- Attorneys, advocates and judges frequently complain that attorneys who obtain the four year LLB are not as well prepared as attorneys who go the traditional route. The Society of Law Teachers of Southern Africa came to a similar conclusion at its 2014 conference, which opens the door to the suspicion that prosecutors at the regional courts might not be as well qualified as they used to be.
- Only 25% of students pass the LLB within four years, which gives rise to the argument that the overwhelming majority of students would have been better off if they had gone the traditional route. This argument gains considerable weight when one notes that students who drop out before completing the four year LLB are likely to have far fewer career options than students who went the traditional route (and perhaps obtained a B.A law or B.Comm law) before dropping out).
How government is going to solve these problems is anyone’s guess. All that one can say with certainty is that transformation has created an unholy mess at our lower courts and is going to become hugely unpopular if blacks (people of colour) fall victim to its inherent unfairness as frequently as whites.
Terence Grant
Cape Town
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