Court rules president cannot grant senior counsel status

Senior counsel (SC) status was not an honour South Africa’s president had the power to confer on practising advocates in terms of the Constitution, a judge in the North Gauteng High Court ruled on Thursday.

Judge Legodi Phatudi ruled in favour of Sandton advocate Roshnee Mansingh, who challenged that the president had no power in terms of section 84(2)(k) of the Constitution to confer the status of senior counsel—or silk—on advocates.

He ordered the president and the justice minister—who opposed the application along with the General Bar Council, the Johannesburg Society of Advocates and Independent Association of Advocates—to pay Mansingh’s costs.

The judge referred at length to the historical background of the appointment of queen’s counsel under British rule, followed by the appointment of senior counsel by South Africa’s state president after South Africa became a republic in 1961.

Phatudi said he did not agree with argument on behalf of the General Bar Council that the prerogatives of the monarchs and the former state president were codified in the present South African Constitution.

“The drafter’s thought of having a break with the past is, in my view, an avoidance of adopting concepts into the Constitution which are not based on the will of the people of South Africa,” he said.

‘Conferring honours’
The judge ruled that the phrase “conferring honours” in terms of the Constitution could not mean any act by the president which resulted in an individual being accorded an honour which he did not earn.

An “honour” was awarded for exceptional and distinguished contribution in community service. None of the respondents could persuade him the conferral of senior counsel status was indeed an “honour”, he said.

“It is clear that the members of the South African Police Service who have been honoured by being awarded the soccer World Cup 2010 Support Medal did not apply to be so honoured ... On that basis I am of the view that an honour is earned while serving the country exceptionally beyond the ordinary call of the day,” he said.

He pointed out that advocates who wished to be “honoured” with senior status applied for it through the bar council, judge president and justice minister who then made recommendations to the president.

“I do not think that section 84(2)(k) proposes a system of awarding any professional who attained an advanced skill in forensic work in his or her profession a status of seniority.

“If conferring honours ...
include awarding seniority status to the legal profession, I am afraid the president will be responsible for conferring honours of seniority to accountants, doctors, auditors—to mention but a few—of 12 years experience with track records of ‘good quality work’,” Phatudi said.

‘Uncertain’ future
The judge said though the institution promoted the culture of hard work, the reward of hard work was respect from fellow countrymen, which was an honour that had to be earned.

He said the future was “uncertain” because the Legal Practice Bill, which provides that the minister must prescribe the procedure for the conferring of senior status, was still in the making.

“Fortunately, I am neither required to determine the future of the status of senior counsel nor to pre-empt how it will be handled. The ball is in the capable hands of the legislature and the legal profession.

“It is… correct that granting the relief sought will imply that all awards of senior counsel’s status made since the advent of the interim Constitution on April 27 1994 are invalid.

“Fortunately ... I am not required to consider this aspect because the applicant does not seek such relief ... This is a matter I leave in the capable hands of the legal profession or another forum,” said Phatudi.—Sapa

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