From senior counsel to senior plumbers?

2013-08-25 14:00

The Constitutional Court has heard that it would be well within President Jacob Zuma’s powers to appoint “senior plumbers” or “senior street sweepers”.

This was the concession made by all lawyers in the court on Thursday in a case where the president’s power to appoint senior advocates, also known as senior counsel, has been questioned.

South Africa inherited the senior counsel (SC) distinction from English law, where the custom of a royal appointing king or queen’s counsel dates back to the 16th century.

Now Urmilla Mansingh, a junior advocate, is questioning whether South Africa’s democratic Constitution allows the president to appoint senior counsel.

The Constitution states the president is entitled to “confer honours”, but doesn’t mention the appointment of senior counsel.

Nazeer Cassim, SC, appearing for Mansingh, conceded there was no need to read a limitation into the provision.

He said: “If the president bona fide (in good faith) believes (he) wants to honour a group of electricians for the work they’ve done or are about to do, then he has that prerogative.”

But Cassim said this did not apply to advocates who were in a private profession, primarily competing for their personal gain.

“The current position is that one would read the president’s power to mean honours in the classical case of a thank you for exceptional past services, a thank you in which is conspicuous a public interest component,” he said. “There is no public interest component in the silk status (referring to robes SCs used to wear).”

Advocate Wim Trengove, SC, of the Johannesburg Bar, which is opposing the case, was similarly questioned by Deputy Chief Justice Dikgang Moseneke, who asked what the limits of the power to confer “honours” were.

“You can extend the word ‘honour’ to just about any area of life or endeavour. You’ll end up with senior plumbers, senior street sweepers, senior advocates and senior others.

“Is there anything conceptually militating against an extension of that width?” asked Moseneke.

Trengove responded that the Johannesburg Bar “has not really considered the outer perimeters of the power because it seems clear that the institution of silk falls comfortably within it”.

“We don’t see any objection, any constitutional bar to achievers in other professions being recognised.” The court has reserved judgment.

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