Conferring ‘silk’ in top court for discussion

THE institution of silk (senior counsel) was debated in the Constitutional Court yesterday as an advocate challenged the president’s right to confer the status of senior counsel.

Such status is awarded by the president through letters patent to members of a select group of advocates who have reached a certain level of excellence in their practices. Originally a prerogative power of the English monarch, it came into South African law through colonialism.

The debate over senior advocates “taking silk” is one of the central discussions in Parliament’s justice committee during the processing of the Legal Practice Bill. The bill in its draft form does not specifically codify how senior counsel status is awarded. Some MPs want it left to the common law while others believe it should appear in the legislation.

Johannesburg advocate Roshnee Mansingh yesterday turned to the Constitutional Court to appeal against the Supreme Court of Appeal (SCA) decision that the constitution allowed the president to confer, as an honour, the status of senior counsel on practising advocates.

The SCA overturned a North Gauteng High Court ruling that the president’s power to confer honours in terms of the constitution did not include the power to confer senior counsel status on practising advocates. Ms Mansingh had argued in her application to the high court last year that silk status was not an “honour” as viewed by the constitution.

Nazeer Cassim SC, for Ms Mansingh, told the court that the constitution of 1996 made a clean break from the past and said there was no preservation in the constitution of the prerogative power of the king to confer that status.

“The power to confer silk was dropped,” Mr Cassim said, adding that the appointment of silks should continue as it encouraged the pursuit of excellence. “However, it is the right of the Bar Council to determine that.”

Wim Trengove SC, for the Johannesburg Society of Advocates, took issue with Ms Mansingh’s characterisation of the conferral of silk as “a certification of the forensic experience, ability and skill of the holder”. He said this was not correct — that silk was readily and naturally encompassed by the ordinary meaning of the concept of “honour”.