Goodbye to silk?

March 1st, 2012

By Kim Hawkey

Johannesburg advocate Roshnee Mansingh won no small victory last month when her application to declare that the President has no constitutional power to confer senior counsel status on advocates was granted by the High Court.

The future of SC – or silk – status has, however, been left to the legislature and the legal profession to determine.

In 2011 (June) DR 8 De Rebus reported that Ms Mansingh had lodged the application in April last year as she did not believe that the President’s power to confer honours in terms of s 84(2)(k) of the Constitution included the power to grant advocates senior counsel status, and there was no other legal source for such power.

Judge Legodi Phatudi of the North Gauteng High Court agreed with Ms Mansingh and granted an order declaring that the President indeed had no such power, which implied that all awards of SC status since the advent of the interim Constitution in 1994 were invalid. However, as Ms Mansingh had not asked for such relief, Judge Phatudi made no such order, but rather left it to the legal profession ‘or another forum’ to decide.

Six respondents were cited in the application, namely the President, the Justice Minister, the General Council of the Bar (GCB), the Johannesburg Society of Advocates (the Johannesburg Bar Council), the Independent Association of Advocates of South Africa (IAASA) and the Law Society of South Africa (LSSA) because of the interest they may have in the matter. All of the respondents, bar the LSSA, opposed the application. The LSSA stated that it would abide by the court’s decision.

At the time of going to print, the GCB and the Johannesburg Society of Advocates (JSA) had indicated that they were likely to appeal the judgment. The two bodies also indicated that the judgment was likely to be susceptible to confirmation by the Constitutional Court.

In his judgment, Judge Phatudi went through the history of the institution of SC status and how it developed in South Africa over the years. The judge also considered the definitions of ‘honour’ and ‘confer’, and the process of qualifying for silk status.

In addition, Judge Phatudi distinguished the awarding of silk to honours such as the Order of the Baobab, which awards exceptional community service beyond the ordinary call of duty.

‘Are the services and contributions made by practising advocates exceptional or beyond the ordinary call of duty that warrant an award of the status of senior counsel?’ For example, the judge asked whether those conferred with SC status had done pro bono work ‘beyond the ordinary quota expected of the legal practitioner’.

Instead, the respondents’ counsel indicated that the ‘honour’ of SC status was for recognition of ‘good quality work’ and, inter alia, perceived ability, leadership and integrity.

This was not, however, enough to convince Judge Phatudi that awarding SC status to advocates was an ‘honour’ under s 84(2)(k) of the Constitution.

He said that the Constitution represented a clean break from the past and that the drafters intended this in order to avoid adopting concepts into the Constitution that were not based on the will of the people of South Africa.

Further, the judge noted that there was no legislation that empowered the President to confer SC status on advocates – a term not even defined in the Admission of Advocates Act 74 of 1964, and the case of President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 CC confirmed that the President has no additional prerogative powers other than those contained in the Constitution.

‘I do not think that section 84(2)(k) proposes a system of awarding any professional who attained an advanced skill in forensic work in his or her profession a status of seniority. If conferring honours envisaged in terms of section 84(2)(k) does include awarding the seniority status to the legal profession, I am afraid, the President will be responsible for conferring honours of seniority to accountants, doctors, auditors, to mention but a few, of 12 years’ experience with track records of “good quality work”.’

In an unusual argument, IAASA argued that SC status should be retained as it ‘intimidates’ judges when advancing arguments in court. ‘Do practising advocates really apply for the status of senior counsel with the purpose of intimidating judges? Do judges president and the Minister of Justice and Constitutional Development really recommend to the President to appoint senior counsel to intimidate judges? Judge Phatudi asked.

In conclusion, Judge Phatudi held: ‘In my final analysis, the appointment of practising advocates as senior counsel does not amount to the conferring of an honour within the meaning of section 84(2)(k) of the Constitution.’

Judge Phatudi said that, while the institution of SC status promoted the culture of hard work and inspired young advocates, it was rewarded and recognised – the reward of hard work was ‘more work’ and the reward for ‘good quality work’ was respect from fellow countrymen, which was an honour.

Despite the judgment, the future of silk status remains uncertain, with Judge Phatudi leaving its fate to the profession.

‘The future is uncertain. The Legal Practice Bill is still in the making. … Fortunately, I am neither required to determine the future of the status of senior counsel nor to pre-empt how it will be handled. The ball is in the capable hands of the legislature and the legal profession.’

Section 95 of the 2010 version of the Legal Practice Bill provides:

‘The Minister must, after consultation with the [Legal Practice] Council, prescribe the manner of application, procedures and criteria for the conferring of senior status on legal practitioners,’ while s 116(3) provides that those who have the status of senior counsel at the time the Legal Practice Act comes into full force ‘retain that status after the commencement of this Act’.

In a joint press release by the GCB and the JSA shortly after the judgment was handed down, the two bodies defended the institution of SC status, saying that it had a ‘long and proud tradition’ in South Africa and other Commonwealth countries and was recognised as ‘a marker of experience and excellence in forensic advocacy’.

‘It performs an important function in the administration of justice and the development of the rule of law,’ the statement reads.

The GCB and the JSA said that they believed the judgment was ‘susceptible to challenge on appeal’ and it was ‘probable’ that they would appeal the order. In addition, the two bodies said that if the High Court decision fell within the ambit of s 172(2)(a) of the Constitution, the order had no force until confirmed by the Constitutional Court and therefore would have no immediate effect on the status of silks appointed since 1994.

The LSSA, in a press release, confirmed it would abide by the court’s decision and was ‘committed to dealing with this issue’ as part of the discussions on the Legal Practice Bill.

‘The LSSA is of the view that, if there is to be recognition for contribution by legal practitioners to society, the legal profession should determine the manner of application, procedure and criteria, as well as the most appropriate form the recognition should take,’ the statement reads.

Kim Hawkey,

 This article was first published in De Rebus in 2012 (March) DR 5.