Law bodies disagree on traditional practice of conferring ‘silk’

THE Law Society of SA is pushing for senior counsel status – a long-time institution among advocates – to be axed.

Jan Stemmett, the co-chairman, said they believed it was “outdated”.

But the General Council of the Bar (GCB) says the council will press ahead with efforts to preserve the “time-tested” institution of conferring “silk’, as senior counsel are called. The issue has come up amid talks between the two bodies as they prepare to hand in a joint submission to the National Assembly’s justice and constitutional development portfolio committee on the Legal Practice Bill.

The bill proposes that one body be established to regulate the entire profession, replacing existing bodies such as the Law Society of SA and bar councils.

It also proposes limits on how much lawyers can charge, in order to make legal services more accessible.

If the bill becomes law in its present form, the justice minister will, in general, have greater clout in the governance of the legal profession.

But GCB chairman Ishmael Semenya, SC, said the two bodies did not have to reach concensus for the purpose of their submission and, as such, they would retain their stance.

According to Stemmett, the system had “served its purpose in the past” when judges came up from the ranks of the advocates’ bar. ”You were first an advocate, then a senior advocate, then a judge. This was inherited from the old colonial system in South Africa, but it was done away with when the new government was implemented. There is no longer a need for it,” he said.

Semenya disagreed, saying that there were a number of reasons for the “time-tested” institution to remain intact.

For one, candidates for SC status were evaluated by their peers. ”It is a type of a guarantee of an advocate’s level of skill,” said Semenya. “Silk status is a professional standard that represents a respectable medium through which a litigant can solve a dispute.”

As a result, he said, a lot of economic activity happened “on the back of senior counsel” who were used in arbitration matters.

The Independent Association of Advocates of South Africa, also known as the Faculty of Advocates, has taken a different view. “We believe there is a place for the conferral of senior counsel status but that it should be adapted to include attorneys,” said chairman Mark Hawyes.