The Constitutional Court is set to decide whether a president in democratic South Africa has the power to confer senior counsel status on an advocate.
Urmilla Mansingh, a junior advocate, has challenged the president’s power to confer this coveted designation, saying it has no place in South Africa’s constitutional democracy.
The court is being asked to interpret whether a section of the Constitution, which states the president has the power of “conferring honours”, includes the power to designate senior counsel.
Senior counsel, also known as “silks” for the material of the robes they used to wear in court, are appointed by the president on the recommendation of the minister of justice.
Advocates have to personally apply to the bar they belong to for SC status.
That bar then decides on a short list which is sent to the judge president of the relevant high court for input and then on to the minister for finalisation.
Nazeer Cassim SC, who appeared for Mansingh in court yesterday, argued a “clean break” with South Africa’s “unsavoury past” would mean the conferral of senior counsel – inherited from English law and custom – would fall away.
Cassim said that in interpreting the definition of the word “honours” in the constitution, the court had a duty to consider the fact that the conferral of SC status by the president had the potential to infringe rights like equality, dignity and the right to choose a trade, occupation or profession and the right of access to a court.
“The litigant who cannot afford a silk in their own mind is disadvantaged and it may well be the advocate is also disadvantaged because the judge shows more deference to the silk,” he said.
Cassim argued there was “no compelling purpose or historical reason, in the context of this country, with its past unsavoury history to include in the ordinary meaning of the word ‘honour’, the order of silk”.
But Wim Trengove SC, who appeared for the Johannesburg Bar, said it was precisely South Africa’s unsavoury and colonial history that lent itself to a wide interpretation of the president’s power to confer “honours”.
“We submit that a wide interpretation is entirely consonant with the clean-break principle, because it doesn’t tie the president to the way the honours bar has historically been exercised by the colonial power and the SA head of state.
“It gives our democratic president the widest possible power, which he may choose to exercise in ways which are quite different and which are more consonant with our new democratic order and our place in Africa,” said Trengove.
He also argued that the ordinary and the historical interpretation of the power to confer honours clearly meant that the president had the power to confer honours.
The Constitutional Court has reserved judgment.
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