Public perception, following the February decision of the North Gauteng High Court in Mansingh v The President of the Republic of South Africa and Others 2012 (3) SA 192 (GNP) seems to be that the status of Senior Counsel no longer exists. The award of Senior Counsel status is known informally as 'taking silk', a reference to the square yoked silk gowns worn by Senior Counsel (informally referred to as 'silks'). Taking silk is a recognition of leading status at the Bar that carries with it a corresponding obligation to lead.
The parties agreed that the interim Constitution prescribed the powers of the President of South Africa and removed any previous powers existing prior to 27 April 1994. The applicant argued that neither the interim nor the final Constitution affords the President the power to confer silk and specifically that section 84(2)(k) of the Constitution, which allows the President to confer honours does not include the power to confer that status on practising advocates. The applicant did not ask the Court to declare the status of Senior Counsel invalid but instead asked for a ruling on the powers of the President in terms of the Constitution.
Mr Justice Phatudi found that he was not required to consider the implication in the relief sought that all such awards by the President made since the advent of the Interim Constitution on 27 April 1994 would be invalid. He said that the only issue he was required to determine was "whether the President's responsibility of 'conferring honours' include the power to confer the status of senior council on practising advocates" (sic). In the result he agreed with the applicant and found that the President does not have the power in terms of the Constitution to confer silk.
As to the future, he referred to the ball being in the capable hands of the legislature and the legal profession and referred in particular to the December 2010 version of the draft Legal Practice Bill, which he believed would deal with the application, procedure and criteria for the conferring of senior status on legal practitioners.
The latest version of that Bill allows existing silks to retain that status but makes no provision for the conferring of silk status in the future. As the judge specifically declined to deal with the effect of his ruling on awards of silk post 1994, it is incorrect to suggest that all awards of the status of Senior Counsel by the President since 1994 are ineffective and it is intended that existing silks will retain their status even after the promulgation of the Legal Practice Bill.
The case has been taken on appeal and while that appeal is pending and the Legal Practice Bill is being debated in Parliament, it is an open question whether our courts will become uniform polyester or whether the rustle of silk will still be heard.
Written by Tim Fletcher, Director and National Practice Head and Kerry Plots, Associate, Dispute Resolution Practice, Cliffe Dekker Hofmeyr