Bars could challenge silks ruling

2012-02-10 18:01
Johannesburg - Advocate bodies will probably challenge a court ruling that the president does not have the power to confer senior counsel, or "silk" status, on advocates.

This emerged from a statement on Friday by the General Council of the Bar of SA (GCB) and the Johannesburg Bar Council.

"It is probable that the GCB and the Johannesburg Bar will oppose the confirmation of the order and appeal against the order," they said.

On Thursday, North Gauteng High Court Judge Legodi Phatudi ruled that the president had no power in terms of section 84(2)(k) of the Constitution to confer the status of senior counsel on advocates.

‘Long and proud tradition’

This was after an application by Sandton advocate Roshnee Mansingh.

According to a website against silks, the status of silk creates elitism in the profession, is divisive, and reduces the dignity of some advocates who resort to obsequiousness to acquire it.

The action was opposed by the president, the minister of justice, the GCB, the Johannesburg Society of Advocates (the Johannesburg Bar), and the Independent Association of Advocates.

According to the statement the status of senior council had a "long and proud tradition" in South Africa and other Commonwealth countries.

"Silk has traditionally been granted on the basis of an advocate's experience and proven track record," they continued.

In terms of section 84(2)(k) of the Constitution, the president has the power of "conferring honours".

The court agreed with Mansingh that "conferring honours" did not also mean conferring silk status.

‘Susceptible to challenge on appeal’

He had the power to confer honours on policemen for excellent work during the Fifa World Cup in 2010, for example. This did however not extend to advocates.

"The GCB and the Johannesburg Bar believe this finding and the court's ultimate conclusion as to the ambit of the president's powers are susceptible to challenge on appeal."

According to advice they received, the order had no immediate impact on the status of silks appointed since 1994.

Silks appointed before April 27 1994 were unaffected by the judgement, the statement read.

This was because a High Court might make an order concerning the constitutional validity of the conduct of the president, but the order had no force unless it was confirmed in the Constitutional Court.

"Senior counsel who were appointed since the dawn of our constitutional democracy will retain their current status as senior counsel, or 'silk', until such time as the Constitutional Court confirms the High Court's order."
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