With the February 9 2012 judgment of Phatudi J of the Gauteng High Court in Mansingh v. President of RSA & Others (Case 20879/2011), that the President lacks the power in terms of section 84(2)(k) of the South African Constitution (Act 108, 1996) to confer the status of Senior Counsel on advocates, it is pertinent to appreciate the impact of the judgment on the highly regarded institution of SCs.
The case did not find that the institution of senior counsel (“Silks”, deriving from the silk gown they wear in court) was in anyway less desirable today than it ever was in the history of South Africa or indeed other common law countries that have the same institution of silks. In the Canada and the UK, the silk is a ‘Queen’s Counsel’ (QC), in post independence Nigeria, it became ‘Senior Advocate of Nigeria’ (SAN) and in South Africa, Senior Counsel (SC). For all those commonwealth countries, the conferring authority was initially Her Majesty the Queen of England, however with the grant of independence to the countries that authority had to change as a matter of fact. The challenge for South Africa however is that whilst most jurisdictions had post independence amended their laws to specify a conferring authority, South Africa, for some reason did not. There is therefore no legislation specifying who should appoint silks in South Africa, nor any conferring the President with such powers; and that was the thrust of the judgment in the Mansingh’s case. These are gaps that the system ought to have filled earlier, and for which Mansingh’s suit draws the need for some action.
In Nigeria, the Legal Practitioner’s Act (LPA) from 1975 established the Legal Practitioners Privileges Committee (LPPC) as the conferring authority. The LPA and the Guidelines for the award of Silk prescribe the conditions and procedure for its conferment. Section 5, LPA provides that the LPPC may by instrument confer on a legal practitioner the rank of SAN. The criteria include a minimum practice experience of (now 20 years) and that the legal practitioner must have achieved distinction in the legal profession in such manner as the LPPC periodically determines. There are published Guidelines by Gazette with very high hurdles to scale. The LPPC comprises the Chief Justice who shall be chairman, the Attorney-General of the Federation, one Justice of the Supreme Court, the President of the Court of Appeal, five of the Chief Judges of the States, the Chief Judge of the Federal High Court, and five legal practitioners who are Senior Advocates of Nigeria.
In South Africa, with 44 million people, there are just over 400 Silks. Nigeria, with over 160 million people has about 70,000 lawyer and 350 Silks. This is obviously bound to generate agitations and discord. Even in England, it did recently. A 2011 suit challenging the award of silks in Nigeria was dismissed same year. It would appear that Mansingh did not on principle reject the system ab initio as oppressive, but only took up the challenge after applying and failing a number of times to take Silk. The question is – had she succeeded in taking silk midway, would she have brought this suit? This is doubtful. It may be too early to proclaim Mansingh the Mandela of the Oppressed. It was more her failed ‘long walk’ to silk, rather than a ‘long walk to freedom’ for all ‘oppressed’ lawyers that principally drove her action. The abolition argument is akin to throwing the baby and the bath water away and therefore not acceptable. There must be something to aspire to become in one’s profession. The reform argument is preferred. Mansingh’s case without any doubt, helps develop the law and it is up to the Legislature, Lawyers and Silks in South Africa to respond. There is need to specify in the Legal Practice Bill in whom the power to confer the rank lies.
In a nutshell, the decision of Phatudi, J was based on the absence of a conferring authority, rather than on a declaration of the desirability or otherwise of the system of silks. The Court did agree that it is desirable to have a system for the reward of hard work by professionals. In its words (p.27):
“I cannot agree more with the President’s Counsel that the institution of silk promotes the culture of hard work. It inspires the young advocates and instills the culture of hard work within the legal practitioners and the profession. The reward of hard work is more work and the reward of “good quality work” is respect from fellow countrymen. The respect from fellow countrymen is an honour. An honour is earned”.
I also cannot agree more with the Court. Excellence (rather than entitlement) needs to be sought after and rewarded if a profession and indeed the society is to bring out its best. It is worthy of commendation that Mansingh retained a Silk who successfully argued her case even though it was against his own very institution. Perhaps a note on principles of excellence!