Selection of 'silks' under scrutiny

Advocates for Transformation (AFT) ruffled the legal establishment this week by calling for all appointments of “silks”—senior counsel—to be frozen pending a re-appraisal of the selection process.

The resolution was prompted by the resignation last week of prominent SC and past counsel for Winnie Mandela Ishmael “Ish” Semenya from the chair of the Johannesburg Bar Council.

The South African president ­confers senior counsel (SC) status on the recommendation of judge presidents, who, in turn, receive proposals from a “silk” committee comprising leading members of the Bar.

Semenya, who chaired the Johannesburg silk selection committee, said in a letter to members of the Johannesburg Bar that a “toxic and abominable” selection process was his reason for stepping down.

The underlying concern is that black advocates are being excluded by a process that relies on peer assessment by a tight-knit “boys’ club”. Semenya called for a broader process that would include judges.

Senior counsel status recognises excellence in the legal profession and has traditionally served as a feeder system for the country’s judges. Candidates are expected to have served at least 12 years at the Bar.

Complaining about the existing selection process Semenya said “adverse and nebulous comments” were made about some ­candidates without tangible and supporting evidence and there was no evidence of a “consistent application of any particular measure”.

“This element of the silk selection process is morally indefensible and corrodes what we hold to be the anchor of our profession—reason,” Semenya said.

This week Semenya said the selection process, which had its roots to the United Kingdom, impedes transformation and should be ­reassessed.

“It is my view that the peer review element of the process must be only one aspect. It may be useful in revising the system that we look, for instance, at requiring applicants to be nominated by at least three judges before whom applicants have appeared in the recent past,” he said.

This would ensure that the honour, which not only brings status and prestige but lucrative legal work, is “not the reserve of a boys’ club”. 

Of 41 applications received by Semenya’s committee, 10 whites and one Indian made the final list.

They include Matthew Chaskalson and Martin Kriegler, sons of retired Constitutional Court judges, who have served at the Bar for 14 and 15 years respectively.

AFT representative on the General Council of the Bar (GBC), ­Kgomotso Moroka SC, said her organisation shares Semenya’s concerns, adding that the process “needs to be opened up”.

Her organisation would engage the GBC on this issue.

The incoming chair of the Johannesburg Bar Council, Hilton Epstein SC, agreed that the system needs overhauling. However, he said affirma­tive action is one of the selection criteria.

Epstein said he will form a committee to look at reforming the selection process along United Kingdom lines, where the selection committee now includes eminent outsiders such as businessmen.

Epstein acknowledged that the process is subjective and allows members to “cast ­aspersions” on the integrity of others.

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