Browsing by Author "Van der Merwe, Stephan"

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    A case study in advocating for expanded clinical legal education : the University of Stellenbosch module
    (Cape Town : Juta and Company (Pty) Ltd, 2017-03) Van der Merwe, Stephan
    Practical Legal Training 471 (“PLT”) is the only Clinical Legal Education (“CLE”) module currently offered by the Faculty of Law at the University of Stellenbosch (“Faculty”). It has an important function in that it offers to final year law students the opportunity to acquire and develop skills in a clinical setting. Despite overwhelming international support for CLE as a teaching methodology, it has a limited role in the current LLB curriculum where it is offered as an elective to a relatively small number of final year law students. In this respect, Stellenbosch reflects the position of many other University law faculties. This article presents an argument favouring a dedicated and pro-active effort to increase CLE’s footprint within the Faculty by restructuring the current elective module into one that is mandatory for all law students. This is done by considering the pedagogical, institutional and access to justice arguments in support of effective CLE modules. This is then followed by an overview of the current PLT module, emphasising the role and expectations of the Law Clinic (“LC”), impacted community, students, faculty and profession. The article then identifies some of the challenges which deter universities, like Stellenbosch, from offering CLE as a compulsory module in their LLB curriculum. With due regard to the complexity of the issues at stake, some suggestions are offered that could serve as a starting point for law faculties in considering how to deal with the obstacles in the way of offering a mandatory CLE module. Ultimately, any efforts to expand CLE remain contingent on the relevant faculty’s support and its ability to realise the full potential of CLE by considering a mandatory module as a necessary intervention in its LLB programme offering.
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    Cautioning the careless writer : the importance of accurate and ethical legal writing
    (Sabinet Online, 2014-12) Van der Merwe, Stephan
    Legal professionals are required to write ethically, skilfully and accurately. Growing concerns over the quality of graduated students entering the profession has led to an increased sensitivity about the teaching of writing skills. This article will not consider the how to, but instead focus on the issue of why legal writers should be vigilant in guarding against the proclivity to write in a careless manner. It will be argued that the results of careless legal writing could have devastating consequences for the legal professional’s career as well as his client’s wallet. Legal writing has to be professional and ethical and reflect the writer’s respect for his or her own workmanship as well as for the intended recipient. Careful legal writing aims to avoid misunderstandings and litigation and aids in developing and clarifying legal analysis. It recognises the permanent nature of what is being written and the persuasive potential innate to legal drafting. Responsible legal writers are mindful of the specific legal consequences of their writing and recognise that they have, in their writing, the ability to appeal to the aesthetic sensibilities of the reader.
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    Contemporary challenges facing law clinics
    (2018-11-01) Van der Merwe, Stephan
    The Stellenbosch University Law Clinic (SULC) held a conference in July discussing the contemporary challenges facing South African university law clinics. Before the conference began, the SULC hosted a dinner in celebration of its relaunch. The event celebrated SULC’s 30th anniversary, since the establishment of its organisational strategy for the period of 2018 to 2022 and the launch of its website (www.sulawclinic.co.za). The relaunch was followed by news of the shortlisting of SULC as specialist law firm of the year at the 2018 African Legal Awards where it was awarded the Corporate Counsel Association of South Africa’s Achievement Award. Participants at the conference engaged in discussion on a variety of relevant and contentious issues, including the positioning of clinical legal education within the LLB curriculum, monitoring and evaluation and transformation and decolonisation
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    Examining Attachment of Earnings Orders: Does the English Wage Garnishment Mechanism Offer Solutions to the Challenges Experienced by its Contemporary South African Counterpart?
    (Thomson & Reutors, 2023) Van der Merwe, Stephan
    The ability to garnish a debtor’s wages is a popular and important contemporary legal mechanism to facilitate civil debt collection in many jurisdictions, including South Africa. Despite recent amendments to the primary legislation regulating South African emolument attachment orders, the mechanism remains prone to a number of significant shortcomings which facilitate debtor abuse. Consequently, calls have been made for further legislative intervention. In order to guide this development, comparative wage garnishment mechanisms should be investigated. A detailed analysis of the ostensibly effective and historically relatable English attachment of earnings order mechanism could provide meaningful insights to improve the system and enhance debtor protection in South Africa. The article therefore conducts an examination and evaluation of the historical development and contemporary application of English attachment of earnings orders in order to determine whether the mechanism provides any solutions that could assist further legislative development.
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    Litigation skills for South African lawyers, C.G. Marnewick : book review
    (2005-01-01) Van der Merwe, Stephan
    Some time during the last quarter of 2003, my candidate attorney stormed into my office and demanded an immediate audience. She then proceeded to inform me, in a most animated fashion, that she had stumbled upon the proverbial ``holy grail'' of textbooks on litigation skills. During a consultation earlier the same day with a client at advocate's chambers, she was introduced to ``Marnewick on Litigation Skills'' (as I am sure this book will soon be commonly referred to). Her rave review and report was warranted not only by the quality of the work at hand, but also in the knowledge that a book of exactly this scope and magnitude was what so many legal practitioners were yearning for. Constitutional Court Judge Johann Kriegler's lavish praise in the foreword of the book is thus well motivated.
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    Objections in civil litigation, P. van den Heever : book review
    (2011-01-01) Van der Merwe, Stephan
    In this book the author deals in concise terms with the categories of objection which most frequently arise in civil litigation, and in relation to each of them, refers to and provides the most leading and useful authorities. The busy practitioner confronted with an unruly witness will thus have at his disposal the tools with which to formulate a cogent and legally sound argument, on short notice, as to why a particular piece of testimony should be excluded. His opponent will similarly be assisted in dealing with the objection in a helpful and lucid manner.
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    Robots and the Law
    (2018-01-01) Van der Merwe, Stephan; Richards-Bray, Beth; East, Alan; Hardy, Stephen
    In 2017, Coventry University in the UK established the Coventry Law School Advocacy Project in partnership with the Central England Law Centre. This move enables students to represent clients in front of appellate tribunals. To capitalise on this practical approach to clinical legal education, Coventry University’s Law School and Stellenbosch University in South Africa embarked on an innovative advocacy programme.
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    Too simple for National Credit Act matters : reconsidering the scope of Magistrates’ Courts rule 5(2)(b)
    (2019-10-01) Van der Merwe, Stephan
    Introduction Rule 5 of the Rules Regulating the Conduct of Proceedings of Magistrates’ Courts of South Africa in GN R720 GG 33487 of 23 August 2010 provides for the process that parties should follow when they institute an action against another in a magistrate’s court.
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    Towards designing a validated framework for improved clinical legal education : empirical research on student and alumni feedback
    (North-West University, Faculty of Law, 2020-12-08) Van der Merwe, Stephan
    The pedagogical advantages of employing a Clinical Legal Education (“CLE”) teaching and learning strategy have been acclaimed in literature for almost a century and it continues to be ideally suited to cater to modern education expectations. As an agent for social change, CLE offers law students an effective gateway to participate in, and be influenced by, fundamental social justice problems while it also improves access to justice for the indigent. Though the clinical literature is replete on expected benefits for clinical law students, very little (if any) verifiable empirical research, independently sourced and evaluated, has been published to assess the veracity of these claims in support of CLE. After receiving a funding grant from the University of Stellenbosch Fund for Innovation and Research into Learning and Teaching, the University of Stellenbosch Law Clinic appointed an independent, external agency to conduct empirical research through an extensive measure and evaluation exercise. The aim of the project was to source, document and analyse robust empirical research data about the Faculty of Law’s CLE module, Practical Legal Training 471. The project involved the sourcing and collation of formal student evaluation feedback reports spanning a period of nine years. Additional alumni and current student data were gathered either by online questionnaire or by telephonic interview. The research was aimed at eliciting quantitative as well as qualitative responses. The purpose of this article is to describe the applicable methodology and aims of the research project, to unpack and discuss the resulting empirical data, and to draw certain conclusions based on the findings of this research about CLE’s impact on law students’ experience specifically relating to their practice-readiness and social justice sensitivities. It is suggested that this research will prove both interesting and useful to law teachers involved in relevant programmes at other higher education institutions. The data and evidence detailed herein will assist them to conduct their research and to make substantiated recommendations for the development of CLE programs on a broader national and international level. This research will also add to the body of knowledge on students and student learning and allow for recommendations regarding the creation of a broader implementation framework for improved CLE.
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    Traversing the South African emolument attachment order legal landscape post 2016 : quo vadis?
    (2019-06-01) Van der Merwe, Stephan
    The South African Constitutional Court delivered a landmark judgment in relation to emolument attachment orders (“EAOs”) in its 2016 ruling of University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services; Association of Debt Recovery Agents NPC v Clinic; Mavava Trading 279 (Pty) Ltd v Clinic. The court confirmed that EAOs were frequently obtained unlawfully and in circumstances where debtors’ constitutional rights and freedoms were completely disregarded. The judgment followed on decades of legal disputes between creditors, abetted by their collection agents, and debtors, represented by organisations like the University of Stellenbosch Law Clinic. Following this judgment, legislation has been enacted to address some of the more pertinent frailties in the Magistrates’ Courts Act 32 of 1944 (“MCA”) in order to provide for more robust judicial oversight in the granting of EAOs. This article offers a unique perspective on the background that merited this significant judicial and legislative intervention. It then considers the significance and impact of the judgment and impending law reform, and evaluates whether the enactment of the Courts of Law Amendment Act 7 of 2017 (“CLA”) addresses all the relevant concerns. It is suggested that uncertainty still remains regarding EAOs granted before the judgment, as well as with regard to the recovery of illegally deducted amounts.