/ 25 October 2019

The thorny issue of  ‘silk’ status for advocates

Regulation: The Legal Practice Council wants to adopt uniform criteria for awarding silk after years of criticism
Regulation: The Legal Practice Council wants to adopt uniform criteria for awarding silk after years of criticism, including that the current system is elitist. (Oupa Nkosi)



Decisions about who is recommended for the advocates’ top honour were always the exclusive terrain of the independent bar councils. Now the statutory regulator will be involved

The Legal Practice Council (LPC) will meet this weekend and is hoping to adopt countrywide, uniform criteria for the conferral of senior counsel status on advocates — a move that has already caused some disquiet to the national advocates body, the General Council of the Bar (GCB).

The GCB’s members — bar councils in cities and provinces across South Africa — have been recommending their members for senior counsel, or “silk”, for decades.

In July, the LPC instructed the GCB to hold off on making silk recommendations, until its criteria had been determined. The GCB bristled at the instruction, asking that it be consulted, and suggesting that the involvement of advocates’ peers was crucial to the institution of silk.

Silk status is an honour conferred by the president to advocates for exceptional skill, integrity and leadership. Silk also catapults counsel into a higher income bracket. The honour has, until now, always been bestowed on the recommendation of an advocate’s peers — after an exacting process of application and wide consultation with other advocates. After a recommendation from the bar, the names go to the judge president of the applicable court, then to the minister of justice and, finally, to the president.

But it has also always been a thorny issue, with complaints over the years that the vast majority of silks remain white and male. Different bars have different processes and criteria and there are also personality politics at play that sometimes lead to deserving candidates losing out.

The Legal Practice Council is the national legislated regulator of the legal profession for both attorneys and advocates. It has only been up and running since November last year and has sometimes had a tense relationship with the organised advocates profession, which had, until then, regulated itself.

The Code of Conduct, provided for in the Legal Practice Act, says that the council shall prescribe the criteria and procedures for silk.

The LPC’s spokesperson, Sthembiso Mnisi, said the Council was still in the process of considering these criteria.

“We are, therefore, unable to comment on the matter until this process is finalised. We will, subsequent to that process, be able to answer all the related questions.”

But two Council sources said the hope for this weekend was that the LPC would adopt norms and standards that would guide everyone, including the GCB-affiliated bar councils. The long-term idea was that recommendations from the bar councils would have to go through the Council, which could veto the bar council’s choices. All this may still be the subject of a debate though, said a source.

However, the correspondence seen by the Mail & Guardian suggests that, if the criteria are adopted this weekend, it will be without consulting the GCB.

After the Council wrote to the GCB in July, instructing bars to hold off on recommending for silk, the GCB responded in a letter in August. GCB chairperson Craig Watt-Pringle SC said: “As a matter of long-standing practice, the president has always accepted nominations on the basis of a peer-review process carried out by the various bars.

“The GCB would, therefore, welcome the opportunity to discuss the silk nomination process, to the benefit of all concerned,” said Watt-Pringle.

In a subsequent letter earlier this month, Watt-Pringle said he had received no official response from the LPC to his earlier letter. “The bars, to which the majority of practicing advocates and almost all silks belong, have a material interest in any proposed nomination process.

“We would like to engage with the LPC on all of the issues raised in my previous letter before any final decision.”

On transformation, Watt-Pringle said in his August letter that the dominance of white males was a legacy of the past and was being addressed. “The skewed profile of the senior bar is expected to change exponentially,” he said, adding that at the bigger bars the pupil intake was weighted in favour of black candidates.

When approached for comment, Watt-Pringle said: “The GCB believes that the peer-review aspect of silk is essential to the integrity of the institution of silk. And for that purpose, the organised bars need to remain involved in the process. We would like to work with the LPC to arrive at a process which maintains the integrity of the institution of silk and promotes transformation.”

But from the Council’s perspective, the GCB and its bar councils represent an elite minority of South Africa’s lawyers, and have for too long had an overwhelming dominance over the profession.

They have used “narrow and elitist standards” in recommending silk, said sources in the council. The Council’s duty is to the public, said one source — to ensure access to legal services and to enable black and women lawyers to progress.

Disclosure: Franny Rabkin is the editor of Advocate, the thrice-yearly journal of the General Council of the Bar

The history of senior counsel in SA

In a 2013 judgment, the Supreme Court of Appeal recounted how senior counsel or silk status came to be part of South Africa’s legal tradition.

The institution of “King’s Counsel” or “Queen’s Counsel” began to emerge in England in the 16th century. A King’s Counsel was obliged to advise the Crown. But, over time, it became less of an office and more of a rank of distinction.

By the end of the 19th century, Queen’s Counsel no longer had any connection with Crown business, and was generally accepted as an honour granted by the Queen in the exercise of her prerogative powers.

The term “silk” was used because the gowns of Queen’s counsel were made of silk as opposed to the “stuff” gowns used by other barristers. That was at about the same time that the institution of silk made its way to South Africa, via colonial conquest.

The early history of silk in South Africa is “somewhat obscure”, said the court. But it appears that silks were appointed in the Cape from the 1880s and that by the time of the union of the former British colonies in 1910 “all four colonies were wedded to the institution of senior counsel”.

From 1910, senior counsel were appointed by the governor-general, on behalf of the monarch. The tradition — based on the “prerogative powers” of the head of state to bestow honours — lasted through the union of South Africa, through South Africa becoming a republic in 1961, through the tricameral constitution in 1983, all the way to the democratic era.

The Constitutional Court confirmed in 2013 that senior counsel status is one of the honours that the South African president can bestow in terms of the Constitution, just as they can bestow the Order of Luthuli or the Order of Mapungubwe. — Franny Rabkin