‘Silks’ to keep their SC status

2013-03-18 00:00

LEGAL practitioners with the honorific of SC will not lose their status even if the Constitutional Court upholds the decision to do away with the honorifics, advocate Thandi Norman SC said yesterday.

Norman was commenting on a City Press report about Friday’s decision by a five-judge bench of the Supreme Court of Appeal, which unanimously overturned a decision of the high court that effectively scrapped the institution of senior counsel (SC) or “silks”, a reference to the fabric of the gowns worn by senior advocates in the past.

Norman said only practitioners applying for the status for the first time would be affected. “Even if the ConCourt upholds the ruling, those who have the status will remain so. But it will be a blow to the new applicants.”

South Africa’s system of senior counsel was inherited from British law, where royalty had the power to appoint a queen or king’s counsel.

In South Africa, an advocate has the title of senior counsel conferred upon him or her by the president after successfully applying to the bar association to which they belong.

The bar associations consider applications, and a list of approved names is submitted to the judge president of the high court in which that advocate appears.

The relevant judge president then makes recommendations via the justice minister.

But a group of advocates, led by advocate Urmilla Mansingh, believes the status of senior counsel is part of a colonial legal tradition that has no place in modern South Africa.

One member of the group, advocate Nazeer Cassim, wrote on the “Abolish Silk” website: “The institution of silk must go. It does not facilitate access to justice and has come to represent some of the pernicious evil features of our society, greed and elitism. It is divisive in its nature, particularly in the manner it is applied and this divides the bars.”

Last year Mansingh successfully applied for a declaratory order in the North Gauteng High Court that found that the constitutional provision section 84(2), which allows the president of the country to confer honours, did not include the power to confer the status of silk on an advocate.

The General Council of the Bar, which currently regulates and governs the profession through constituent bar associations across the country, appealed the decision in the Supreme Court of Appeal.

According to the Supreme Court of Appeal, Mansingh argued that “practising advocates who apply for silk, but who are unsuccessful in their applications, suffer real disadvantage in their practices and great distress”.

But in a judgment by Judge Fritz Brand, the Supreme Court of Appeal ruled that the question before it was not whether the status of a silk was a “good or a bad thing”, but rather whether the president of the country had the power to confer this.

“The fact that section 84 confers some of the former royal prerogatives on the president and that they include the power to confer honours is beyond debate,” the court ruled.

It ruled that the reason the president could not also confer seniority on accountants, doctors and attorneys was “probably that the legal profession and its institutions have traditionally been regarded as integrally related to the administration of justice, which in turn is properly the concern of the head of state”.

The court also quoted President Jacob Zuma, who, while abiding by the decision of the court, said in an affidavit that he regarded the conferral of silk as an honour wide enough to take many forms.

Mansingh could not be reached for comment, but City Press understands that the Supreme Court of Appeal’s judgment will probably go on appeal to the Constitutional Court.

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