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[2013] ZASCA 9
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General Council of the Bar and Another v Mansingh and Others (417/2012) [2013] ZASCA 9; 2013 (3) SA 294 (SCA); [2013] 2 All SA 542 (SCA) (15 March 2013)
Links to summary
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 417/2012
In
the matter between:
GENERAL
COUNCIL OF THE BAR
...............................................
FIRST
APPELLANT
JOHANNESBURG
SOCIETY OF ADVOCATES
.......................
SECOND
APPELLANT
v
URMILLA
ROSHNEE DEVI MANSINGH
....................................
FIRST RESPONDENT
PRESIDENT
OF THE REPUBLIC OF SOUTH
AFRICA
...................................................................................
SECOND
RESPONDENT
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
.........................................................................
THIRD
RESPONDENT
INDEPENDENT ASSOCIATION OF
ADVOCATES
OF SOUTH AFRICA
...............................................................
FOURTH
RESPONDENT
LAW SOCIETY OF SOUTH AFRICA
..........................................
FIFTH RESPONDENT
Neutral
citation:
General Council of the Bar v Mansingh
(417/12)
[2013] ZASCA 9
(15 March 2013).
Coram:
Brand, Shongwe, Leach
JJA, Southwood and Saldulker AJJA
Heard:
18 February 2013
Delivered: 15 March 2013
Summary: Constitution –
s 84(2)(
k
) – whether President’s power to
‘confer honours’ contemplated in the section includes the
authority to
appoint senior counsel – held that on the
interpretation of the section in its historical perspective it
includes that authority
and that there is nothing in the broader
context which is at odds with that interpretation.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
North Gauteng
High Court, Pretoria (Phatudi J sitting as court of first instance):
(a) The appeal is upheld.
(b) The order of the court a quo is
set aside and replaced with the following:
‘
The
application is dismissed. First and second respondents are ordered to
pay the applicant’s costs.’
________________________________________________________________
JUDGMENT
________________________________________________________________
BRAND JA (SHONGWE, LEACH JJA,
SOUTHWOOD and SALDULKER AJJA concurring):
[1] The first respondent, Ms Urmilla
Mansingh (Mansingh), is a practising advocate and a member of the
Johannesburg Society of Advocates
(JSA). Proceedings started when she
brought an application in the North Gauteng High Court, Pretoria for
a declarator that s 84(2)(
k
) of the Constitution does not
authorise the President of the Republic to confer the status of
senior counsel on practising advocates.
On the papers reference is
often made to the institution of senior counsel as ‘silk’
and to those who hold that status
as SCs or silks. The reference to
silk, of course, derives from the fabric of the gowns traditionally
worn by senior counsel. Though,
as the court a quo rightly pointed
out, silk has since largely been replaced by ersatz material, I
nonetheless propose to follow
that nomenclature, because I find it
convenient to do so.
[2] As respondents to her application,
Mansingh cited six parties. They were:
The President of the Republic (the
President).
The Minister of Justice and
Constitutional Development (the Minister).
The General Council of the Bar (GCB),
which is an affiliation of the ten Societies of Advocates, roughly
corresponding to the
different High Courts, in South Africa.
The JSA, of which Mansingh, as I have
said, is a member.
The Independent Association of
Advocates of South Africa (IAASA), whose members comprise practising
advocates who are not members
of the Societies of Advocates
constituting the GCB.
The Law Society of South Africa (the
Law Society), which essentially represents the attorneys’
profession in this country.
[3] In the court a quo all the
respondents, save for the Law Society, opposed the application. The
position taken by the Law Society
in its answering affidavit appeared
to be somewhat ambivalent. Though it sought to avoid the fray by
abiding the decision of the
court, it nonetheless stated its view
that the title of ‘senior’ should not be conferred on
either advocates or attorneys.
Eventually Mansingh’s
contentions found favour with Phatudi J in the court a quo. Hence he
granted the declarator sought.
Costs of the application were awarded
in favour of Mansingh, but against the President and the Minister
only, which corresponded
with the costs order for which she asked.
The judgment of the court a quo has since been reported as
Mansingh
v President of the Republic of South Africa and others
2012 (3)
SA 192
(GNP). The appeal against that judgment is with the leave of
the court a quo. It is by the GCB and the JSA only. Since the
arguments
presented by the two appellants essentially went along the
same lines, I propose to ascribe those arguments to ‘the
appellants’.
Apart from the Law Society, the other erstwhile
respondents in the court a quo, including the President and the
Minister, abide
the decision of this court on appeal. Whatever the
outcome of the appeal, the costs order in the court a quo against the
President
and the Minister must therefore stand. As to the Law
Society, its stance became somewhat bolder on appeal, in that it was
no longer
content to abide the decision of the court, but actively
supported Mansingh’s case by advancing separate arguments of
its
own.
[4] The issue raised by the appeal is
of narrow ambit. They turn exclusively on the interpretation of s 84
of the Constitution.
The relevant part of this section provides:
‘
Powers
and functions of President:
(1)
The President has the powers entrusted by the Constitution and
legislation, including those necessary to perform the functions
of
Head of State and head of the national executive.
(2)
The President is responsible for –
(a)
. . .
.
. .
(
k
)
conferring honours.’
[5] Mansingh’s case, which
received the approval of the court a quo, is that s 84(2)(
k
)
of the Constitution does not include the power to confer the status
of senior counsel or silk on practising advocates. The appellants’
counter-argument is that it does. An alternative argument raised by
the appellants is that even if the conferral of silk cannot
be
accommodated under the honours power in s 84(2)(
k
), it is
authorised by s 84(1) as an auxiliary power necessary to carry
out a function of the President as Head of State. Although
this
alternative argument was raised on the appellants’ papers and
advanced on their behalf at the hearing of the application,
it was
not considered in the judgment of the court a quo. On appeal the
rival cases remained the same.
[6] Before I come to the
interpretation of s 84 I find it appropriate, at the outset, to
clear the decks, as it were, of matters
not pertinent in this case.
The question we have to decide, as I have said, turns on whether the
President has the power to confer
silk. Questions relating to whether
the institution of silk is a ‘good thing or a bad thing’
and whether it is an institution
that should be abolished or
retained, are not on the agenda. I say this because Mansingh made it
clear, at a fairly early stage
of her founding affidavit that, as a
matter of principle and for considerations of policy, she is opposed
to the institution of
silk; that in consequence, she actively sought
its abolition. In support of these contentions, she argued that
practising advocates,
like herself, who apply for silk, but who are
unsuccessful in their applications, suffer real disadvantage in their
practices and
great distress. In her replying affidavit she pursued
this thesis with even greater fervour. In the process she referred to
meetings
of some members of the JSA who supported the abolition of
silk. She also quoted at some length from publications, both locally
and abroad, in support of the proposition that the institution of
silk is not needed and actually does harm. These publications,
by way
of illustration, express the view that the institution of silk ‘is
an odd system in which a professional person’s
career is
blighted not by the dissatisfaction of his clients but by the
exercise of ministerial patronage’; that ‘[n]o
one denies
that the refusal of silk has profound economic consequences for the
barrister concerned’; and that the institution
of silk
‘continues to exemplify the costly and anachronistic rituals of
the Bar . . ..’
[7] In view of these deviations from
the real issue I emphasize the rather obvious proposition that we
should strictly confine the
focus of our deliberation to the issue
before us and that the issue whether or not the institution of silk
is worthy of protection,
is not one of those. Neither is the related
issue whether or not the President should or ought to have the power
to confer the
status of silk on practising advocates. At the risk of
repetition; the sole issue before us is whether the President has the
power
to do so under the Constitution. A further debate we do not
have to embark upon relates to the essential import of silk. The
appellants
contend, and it is not disputed by Mansingh or the Law
Society, that what lies at the heart of the conferral of silk is the
recognition
by the President as the head of State, of the esteem in
which the recipients of silk are held in their profession by reason
of
their integrity and of their experience and excellence in
advocacy. Or, as it was formulated more than a century ago by Lord
Watson
in
Attorney General for the Dominion of Canada v The
Province of Ontario
[1898] AC 247
(PC) at 252:
‘
The
. . . position occupied by Queens’ Counsel is . . . that it is
a mark and recognition by the Sovereign of the professional
eminence
of the counsel upon whom it is conferred.’
[8] Other matters raised on the
papers, albeit rather obliquely, concern the fairness and
transparency of the procedures for the
appointment of senior counsel.
Again; although these matters appear to be the subject of ongoing
debate, both here and overseas,
they are not germane to this case.
For present purposes, I believe we must accept, because it is not in
dispute, that while each
of the GCB’s constituent Bars have
designed its own procedure which ultimately leads to the grant of
silk, these procedures
have certain elements in common. In all cases
the process starts with an application for appointment by the
candidate for silk
to his or her Bar. The application is then
considered by a committee of silks of that Bar. Thereafter the names
of the approved
candidates are presented to the Judge President of
the particular High Court who makes a recommendation to the Minister.
The Minister
in turn makes a recommendation to the President, who
confers the status of silk. Judges President are not bound by the
decisions
of the Bar to recommend the successful candidates to the
Minister. In this way, so the appellants contend, the procedure
endeavours
to provide for a system of peer review as well as an
evaluation by the judges of the High Court in which the applicant for
silk
usually appears.
[9] Appointments by the President are
noted in a presidential minute with the counter-signature of the
Minister. Mansingh did not
take issue with the procedure. Her
contention was that what is borne out by the procedure is that the
criteria for the conferral
of silk are determined and assessed by the
Bar and that the President effectively does no more than to confirm
their assessment.
The President, she argued, is not in a position to
draw the merit-based professional distinctions on which the system is
founded.
I believe, however, that the objection misses the point. It
starts out from the premise that the appointment of silk purports to
be a certification of professional quality by the President. This is
not so. As I have said, it is common cause that the appointment
of
silk amounts to a recognition by the President of the esteem in which
the recipients are held by their peers. That recognition,
so the
appellants contended, constitutes an ‘honour’
contemplated by s 84(2)(
k
). With that rather lengthy
prelude I can now revert to the issue in this case which essentially
revolves around a proper interpretation
of s 84(2)(
k
) of
the Constitution.
[10] The method of interpreting the
Constitution has been established in several judgments of the
Constitutional Court. In sum,
these judgments hold that the language
of the constitutional text must be interpreted purposively and in
context (see eg
Viking Pony Africa Pumps (Pty) Ltd t/a Tricom
Africa v Hidro-Tech Systems (Pty) Ltd and another
2011 (1) SA 327
(CC) para 32 fn 34). Though the court must thus seek to give effect
to the object and purpose of the provision, it is limited by
the
language used. The court is not permitted to impose a meaning on the
text that it is not capable of bearing (
South African Airways
(Pty) Ltd v Aviation Union of South Africa and others
2011 (3) SA
148
(SCA) para 29). Another way of stating this limitation is that a
purposive interpretation may not be unduly strained (
Investigating
Directorate: Serious Economic Offences and others v Hyundai Motor
Distributors (Pty) Ltd and others: In re Hyundai
Motor Distributors
(Pty) Ltd and others v Smit NO and others
[2000] ZACC 12
;
2001 (1) SA 545
(CC)
para 24).
[11] On the other hand, constitutional
interpretation must avoid ‘excessive peering at the language to
be interpreted without
sufficient attention to the contextual scene’
(
Johannesburg Municipality v Gauteng Development Tribunal
and
others
2010 (2) SA 554
(SCA) para 39). In this regard it has been
accepted in principle that the contextual scene includes the
historical context of the
provision (see
Executive Council,
Western Cape v Minister of Provincial Affairs and Constitutional
Development and another; Executive Council,
KwaZulu-Natal v President
of the Republic of South Africa and others
[1999] ZACC 13
;
2000 (1) SA 661
(CC)
para 44). It has also been accepted that the historical context
includes reports of technical committees that assisted the
Constitutional Assembly in the actual formulation of the Constitution
(see
S v Makwanyane and another
[1995] ZACC 3
;
1995 (3) SA 391
(CC) para 17).
[12] On application of this approach
to the interpretation of s 84(2)(
k
), the first step is to
establish the literal meaning of ‘honours’. According to
the Oxford English Dictionary (online),
‘honours’ (that
is the plural form of the noun) includes the meaning of ‘something
conferred or done as a token
of respect or distinction; a mark or
manifestation of high regard . . ..’ (See also Shorter Oxford
English Dictionary on
Historical Principles 5 ed.) If we accept, as
we must because it is not in dispute, that the appointment of silk
amounts to a public
recognition by the President of the professional
eminence in which the recipient is held, I believe it follows that on
a purely
linguistic basis, the concept of honours bears a meaning
wide enough to include the conferral of silk. This meaning, so the
appellants
contended, is also supported by the historical context as
well as the reports of the technical committees that informed and
advised
the Constitutional Assembly in formulating our Constitution.
[13] In view of these contentions I
turn first to the historical context. From this perspective, it is
clear that the institution
of senior counsel is part of our heritage
as a former British colony. It is well established that in England
the appointment by
the monarch of King’s or Queen’s
counsel was made by the exercise of the prerogative powers of the
Crown. As succinctly
stated by Schreiner JA in
Sachs v Dönges,
NO
1950 (2) SA 265
(A) at 306-307 the term ‘prerogative
powers’ is ordinarily used to describe a compendium of
residual, non-statutory
powers of the Crown. By their nature these
powers consisted of a diverse and heterogeneous collection ranging
from declaration
of war to pardon of prisoners (see eg H R Hahlo and
Ellison Kahn
The Union of South Africa: The Development of its
Laws and Constitution
(1960) 171). Yet, as Schreiner JA also
explained in
Sachs
, textbook writers have, for the sake of
analytic convenience, classified and labelled these miscellaneous
powers under different
headings. One of the ranges of powers
subsequently classified and labelled was the prerogative power of the
monarch to confer honours.
[14] With reference to the background
of the appointment of silks, Sir John Baker (J H Baker
the Common
Law Tradition
:
Lawyers, Books and the Law
at 92 –
96) recounts that the institution started to emerge in the 16
th
century. Originally it was an office of which the incumbent was
obliged to advise the Crown. But with the passage of time, so Baker
says, the status of Queen’s Counsel ‘came to be seen as a
bestowal of rank on an individual rather than an engagement
to render
services to the Crown’. By the middle of the 19
th
century, Queen’s Counsel no longer had any connection with
Crown business, though they were still disqualified from appearing
against the Crown without a licence signed by the monarch. But by
1871, so Baker says, the requirement of a licence was also abolished.
In the end, so Baker concludes his historical survey, the rank of
Queen’s Counsel had completely lost its character as an
office
and became a rank of distinction. In the same vein, Joseph Chitty’s
A Treatise on the Law of the Prerogatives of the Crown
(1820)
at 118 said:
‘
To
the Crown belongs also the prerogative of raising practitioners in
the courts of justice to a superior eminence, by constituting
them
sergeants . . . or by granting letters patent of precedence to such
barristers as his Majesty thinks proper to honour with
that mark of
distinction . . . .’
[15] In
Lenoir v Ritchie
[1879]
3 SCR 575
the question pertinently arose before the Supreme Court of
Canada whether it can be said that the Crown appointed silks in the
exercise of the royal prerogative to confer honours. The three judges
who pertinently considered this issue answered the question
posed in
the affirmative. Thus it was held by Taschereau J (para 62):
‘
It
is trite to say that the Sovereign is the fountain of honors and
dignities. “The Crown alone,” says
Chitty
,
“can create and confer dignities and honors. The King is not
only the fountain but the parent of them”. . . It must
also be
admitted that, in the exercise of that prerogative the Crown has the
right to appoint King’s or Queen’s Counsel,
and to grant
Letters of Precedence to . . . such barristers as His Majesty thinks
proper to honor with that mark of distinction
. . . .’
(See also to the same effect para 52
(per Henry J) and para 85 (per Gwynne J).)
[16] About ten years later the Privy
Council had to resolve what amounted to substantially the same issue
in
Attorney General for Dominion of Canada v Attorney General for
the Province of Ontario
[1898] AC 247.
The question arose in the
context of legislation by the province of Ontario which allowed its
Lieutenant-Governor to appoint QCs
to its provincial courts. While it
was common cause that the province had no power to exercise the
prerogative of conferring honours
– which was reserved to the
Governor General of Canada as representative of the Queen – the
province contended that
the conferral of silk amounted to the
appointment to an office which fell within the scope of provincial
authority. In the event,
the Privy Council held that the appointment
of Queen’s Counsel indeed amounted to the conferral of honours,
but that it also
constituted the appointment to an office. The
underlying reasons for this finding appears, for instance, from the
following statement
by Lord Watson (at 252):
‘
The
exact position occupied by a Queen’s Counsel duly appointed is
a subject which might admit of a great deal of discussion.
It is in
the nature of an office under the Crown, although any duties which it
entails are almost as unsubstantial as its emoluments;
and it is also
in the nature of an honour or dignity to this extent, that it is a
mark and recognition by the Sovereign of the
professional eminence of
the counsel upon whom it is conferred.’
[17] Whatever the position might have
been in earlier times, the viewpoint that became generally accepted
in England and Canada
towards the end of the 19
th
century
was that silks were appointed by the Queen in the exercise of her
prerogative to confer honours. That acceptance happened
to coincide
with the emergence of the institution of silk in this country. The
early history of the institution in South Africa
is somewhat obscure,
not only by dearth of any judicial pronouncement but also because
academic articles on the subject, such as
the one by Prof Ellison
Kahn (‘Silks’ (1974) 91
SALJ
95) and the one by
Prof M T W Arnheim (‘Silk, Stuff and Nonsense’
(1984) 101
SALJ
376)
prove to be more narrative in nature than based on
real in-depth research. Yet it appears from the article by Prof Kahn
(at 96-99)
that silks were appointed in the Cape from the 1880s, in
Natal from the 1990s and that by Union of the former British colonies
in 1910 ‘all four colonies were wedded to the institution of
senior counsel’. It is further noted by Prof Kahn (at 96)
that
from 1910 senior counsel were appointed by the Governor General.
[18] Where the power of the Governor
General to do so was derived from is a matter of inference rather
than direct authority. In
this regard s 8 of the Union of South
Africa Act 1909 (also known as the ‘Union Constitution’)
provided that the
executive authority of the Union vested in the
King, and was to be exercised by His Majesty in person or by the
Governor General
as his representative. This section was repealed by
the Status of the Union Act 69 of 1934. Section 4 of the Status Act
conferred
the executive government of the Union on the King or the
Governor General as his representative, acting on the advice of the
South
African Cabinet. It can be accepted on good authority that the
executive powers thus conferred included the prerogative powers of
the King (see eg
Sachs v Dönges
at 308). As to the ambit
of these prerogative powers, this court early on adopted the approach
that it was determined by English
law. The reason for this approach
appears from the statement by Innes CJ in
Union Government v
Tonkin
1918 AD 533
at 539 that:
‘
The
King’s prerogative, save where duly modified, is the same in
every part of the Empire . . . .’
[19] The Governor General’s
power to appoint senior counsel plainly did not derive from any South
African statute. Hence the
irresistible inference is that the
Governor General’s authority to do so could only have been
derived from an exercise of
the royal prerogative (that he inherited
from the King) to confer honours which – in accordance with
English legal tradition
– included the power to appoint senior
counsel. I am aware of the contrary view expressed by W P M Kennedy
and H J Schlossberg
The Law and Custom of the South African
Constitution
(1935) at 128 that:
‘
The
appointment [of senior counsel] must not be regarded as one
conferring an honour from the crown. It is an executive act
concerning
the internal government of the country, necessary for
certain executive purposes, but what they are is impossible to say.’
I also appreciate that this view was
reiterated by the author Schlossberg, after he changed his name to
May (H J May
The South African Constitution
(1955) at 179) and
that it was referred to with apparent approval by Prof Kahn (‘Silks’
at 104). Nonetheless, in the
light of the conclusion I arrived at
earlier by way of deductive reasoning – ie that the Governor
General’s power to
appoint silks could only have stemmed from
the royal prerogative to confer honours – I believe that the
view expressed by
these authors, which is unsupported by any
authority, cannot be sustained.
[20] In 1961 South Africa became a
Republic. With that the Union Constitution was repealed and replaced
by the Constitution of the
Republic of South Africa Act 32 of 1961,
s 7 of which explicitly dealt with the prerogative powers of the
head of State. In
relevant part it provided:
‘
7.
(1) The Head of the Republic shall be the State President.
(2)
. . .
(3)
He shall, subject to the provisions of this Act, have the power –
. . .
(
a
)
. . .
(
b
)
. . .
(
c
)
to confer honours . . .
(
d
)
. . .
(4)
The State President shall in addition as head of the State have such
powers and functions as were immediately prior to the commencement
of
this Act possessed by the Queen by way of prerogative.’
[21] For the first time in our history
the 1961 Constitution therefore contained a partial codification of
prerogative powers. Partial
because of the catch-all phrase in s 7(4)
which preserved those prerogative powers that remained uncodified. In
1961 the institution
of silk also underwent a change of nomenclature
consonant with the change of external status from a self-governing
dominion of
the British Commonwealth to a Republic. Although the
procedure for appointment of silks remained substantially the same,
new recipients
would henceforth be called senior counsel, abbreviated
SC. At the same time, existing silks were allowed to retain the title
QC.
[22] In 1983 the 1961 Constitution was
repealed and replaced by the Constitution of the Republic of South
Africa Act 110 of 1983,
which was a decisive move away from the
Westminster model. The separation of the offices of head of State and
Head of Government,
which lies at the heart of the Westminster
system, was abandoned in favour of a combination of the two roles in
the office of State
President. For present purposes, the position
regarding the prerogative powers of the executive, however, remained
virtually unchanged.
Section 6 of the 1983 Constitution adopted
the same model as s 7 of its predecessor. While s 6(3)
codified some
of the former prerogative powers, including the power
to confer honours, s 6(4) – which was similarly worded to
s 7(4)
of the 1961 Constitution – preserved those
prerogative powers that were not codified in s 6(3).
[23] On the papers it is common cause
that, acting in terms of s 7 of the 1961 Constitution and later
in terms of s 6
of the 1983 Constitution, the State President
continued to confer silk until the repeal of the latter by the
interim Constitution,
Act 200 of 1993. What is more, the procedure
for the appointment of silk did not change after 1960. Letters patent
were still signed
by the head of State and counter signed by the
Minister of Justice save, of course, that the head of State was no
longer the Governor
General, but the State President. By the nature
of things the question whether, under the 1961 and 1983 Constitutions
the State
President granted silk by virtue of his power to confer
honours or in terms of his residual prerogative powers, did not
arise.
It simply did not matter. He had the power either way. Yet, I
believe that if the question did arise, the answer would have been
that the State President acted by virtue of the specifically codified
power to confer honours. I say that because the clear intent
was to
preserve the practice that prevailed before 1961.
[24] The partial codification of
prerogative powers which occurred in the 1961 and the 1983
Constitutions was completed in the (1993)
interim Constitution. In
the same way as s 84(2) of the (1996) Constitution – that
I have quoted by way of introduction
– s 82(1) of the
interim Constitution made no express reference to prerogative powers
at all. Yet, along the lines of
the 1961 and the 1983 Constitutions,
s 82(1) specifically bestowed powers on the head of State which
clearly owed their origin
to the royal prerogative. These included,
for instance, the power to pardon and reprieve offenders and the
power to confer honours.
The cardinal difference is, however, that
unlike its predecessors, s 82(1) of the interim Constitution did
not contain a catch-all
provision which preserved unlisted
prerogative powers. This approach, as we know, has also been adopted
in s 84(2) of our
Constitution. The effect of the change was
summarised thus in
President of the Republic of South Africa and
another v Hugo
1997 (4) SA 1
(CC) para 8:
‘
Two
conclusions can be drawn from the foregoing. First, the powers of the
President which are contained in s 82(1) of the interim
Constitution
have their origin in the prerogative powers exercised under
former Constitutions by South African heads of State.
Second, there
are no powers derived from the royal prerogative which are conferred
upon the President other than those enumerated
in s 82(1).’
[25] These consequences were no doubt
intended. That much is borne out by the reports of the panel of
experts that informed and
advised the Constitutional Assembly in the
formulation of the final Constitution. In their report of 4 September
1995 the experts
inter alia stated:
‘•
In
order to give effect to the notion of constitutional supremacy, it
should be made clear that the Constitution is the source of
all
executive powers and that they may all be tested against the
Constitution
.
. .
It
is in this regard that the so-called prerogatives become relevant. .
. .
Prerogatives
stem from the (English) common law. They form part of the previous
dispensation in South Africa, when Parliament
was sovereign. They
originated in England in a time in which the powers of the monarch
were virtually unchecked.
.
. .
The
most important prerogatives were the power to assent to legislation,
dissolve Parliament, dismiss a government, appoint ministers,
stop
prosecutions, bestow honours, pardon criminals and declare war and
peace.
Many
of these fitted logically into the English system of government.
Over time some of them were laid down in legislation –
which
excluded reliance on the common law.
.
. .
The
Constitution (and subsequent legislation) is now the only source of
executive power. No extra-constitutional powers exist.
The exercise
of all executive powers should in future be justiciable because the
Constitution is supreme. The term “prerogative”
should
perhaps be avoided altogether, because it is a legal term which
refers to powers “outside” the control of
law.
Executive
powers should be dealt with in a manner clearly indicating present
practice. If the new Constitution contains a formulation
which does
not correspond with the actual practice . . . “unconstitutionality”
may result or previous “conventions”
are again invoked.
The supremacy of the Constitution may be undermined. Unnecessary
grounds for litigation may result.’
[26] The general intent of the
drafters of the Constitution therefore seems to be plain. Insofar as
executive powers derived from
the royal prerogative were not
incompatible with the new constitutional order they should be
codified and maintained. Conversely
stated, the intention was not to
abolish prerogative powers or to diminish the function of the head of
State previously derived
from the royal prerogative, but to codify
these powers insofar as they are not inimical to the constitutional
state and to render
the exercise of these powers subject to the
Constitution. In this light the historical perspective therefore
seems to support the
appellants’ argument that the power ‘to
confer honours’ contemplated in s 84(2)(
k
) of the
Constitution must be afforded its traditional content, which included
the power to appoint silks.
[27] That brings me to the next
inquiry, namely whether there is anything in the broader context that
indicates a meaning of s 84(2)(
k
) which is at odds with
the one revealed by the historical perspective. In this regard the
court a quo found the historical perspective
of lesser – if any
– importance because, so it held (in para 20), our Constitution
was intended, as appears from its
preamble, ‘to sever relations
with the past’. In consequence, so the court a quo continued
(para 23):
‘
I
do not agree . . . that the prerogatives of the monarchs and the
State Presidents respectively are codified in the Constitution.
The
drafters’ idea of breaking with the past stems, in my view,
from an aversion to adopting concepts in the Constitution
which are
not based on the will of the people of South Africa.’
And, so the court concluded (para 46):
‘
The
Lenoir
case
[therefore] finds no application within our democratic autochthonous
Constitution in that “in England, the sovereign
. . . uses the
prerogatives to confer honours”.’
[28] In my view this line of reasoning
departs from the wrong premise, hence it arrives at the wrong
conclusion. Although it can
be accepted as a general principle that
the Constitution intended a break with the unacceptable features of
the past, that principle
can hardly find application in a case where
the very language used indicates an intent to preserve past
practices. The fact that
s 84(2) confers some of the former
royal prerogative powers on the President and that they include the
power to confer honours,
is beyond debate (see eg also
President
of the Republic of South Africa v Hugo
paras 5-7). The only
question relates to the content of that power: does the codified
prerogative power to confer honours include
the power to appoint
silks? The answer to that question does not depend on the court’s
abstract perception of ‘the
will of the people’ but on
the proper interpretation of ‘honours’, inter alia,
against its historical background
and it is to that historical
background that the
Lenoir
case and other authorities that I
have referred to are highly relevant.
[29] A further argument why the power
to confer honours no longer includes the appointment of silk, which
found favour with the
court a quo, refers to the list of honours
enumerated in the website of the Presidency under the rubric
‘National Orders’
(see paras 29-39). The list
incorporates, for example, the order of Mendi, the order of the
Baobab, the order of Luthuli, and so
forth, but not the institution
of silk. On this basis the court a quo held (para 37) that ‘I
am of the view . . . that non-inclusion
of the conferment of senior
counsel status on the Presidency’s website indicates that it is
not one such “honour”
as envisaged in terms of
s 84(2)(
k
)’. Moreover, what these national orders
have in common, so the court a quo held, is that they are awarded
‘for services
distinguished as beyond the ordinary call of
duty’. It is an ‘honour awarded for exceptional and
distinguished contribution
in community service’. The
appointment of silk, on the other hand, so the court concluded (paras
29 and 38) does not require
services of practising advocates beyond
the call of duty or that they must have done something good beyond
human expectation. In
consequence, the institution of silk cannot be
regarded as an honour for purposes of s 84(2)(
k
).
[30] I do not agree with this line of
reasoning. The mere fact that silk is not included in the national
orders on the website of
the Presidency plainly does not in itself
exclude silk from ‘honours’. President Zuma, in his
answering affidavit,
deposed to the fact that he regards silk as an
honour; that the website of the Presidency is created and managed by
his administrative
personnel; and that his administrative personnel
cannot possibly define the contents of his constitutional powers to
confer honours.
Moreover, I can see no reason in principle why the
term ‘honours’ in s 84(2)(
k
) should be
limited to national orders. On the contrary, as the President said in
his answering affidavit, the meaning of honours
is wide enough to
take many forms. Once this is accepted, the enquiry whether silk
constitutes honours cannot be answered with
reference to the
characteristics of national orders. One cannot answer the question
whether apples and pears are both fruit by
looking at the
characteristics of an apple, which is a fruit, and conclude that a
pear is not a fruit because it does not share
the characteristics of
an apple.
[31] Finally, the court a quo appears
to have been swayed by the argument that s 84(2)(
k
) does
not propose a system of awarding any professional who has achieved
advanced status in his or her profession a status of seniority.
If it
were so, the argument went, the President would also have to confer
honours of seniority on accountants, doctors, attorneys
and the like
(see para 47). Again I find this argument unpersuasive. While the
historical context supports the appointment of senior
counsel as
being included in the President’s power to confer honours, the
same cannot be said of other professions. The reason
for this
historical distinction is probably that the legal profession and its
institutions have traditionally been regarded as
integrally related
to the administration of justice which in turn is properly the
concern of the head of State. I appreciate that
our institutions can
and must develop in the light of the needs of our own social context.
If there is found to be a need of appointment
by the President of,
say, senior attorneys, it will have to be considered whether that
institution can be brought under s 84(2)(
k
) of the
Constitution – despite the fact that it is not historically
supported – or whether special legislation will
be required.
[32] In this Court counsel for
Mansingh introduced a further contention that had not been raised
before, neither on her papers nor
in argument before the court a quo.
It rested on s 9 and s 22 of the Constitution which,
respectively, guarantee the
right to equality and the right of every
citizen to choose his trade, occupation or profession freely. In
developing this argument
counsel for Mansingh also relied on the
decision by the Constitutional Court in
Affordable Medicines Trust
and others v Minister of Health and others
[2005] ZACC 3
;
2006 (3) SA 247
(CC)
paras 62-66 to the effect that this guarantee embraces not only the
choice of profession but also by necessary implication
its practice.
According to this argument, s 84(2)(
k
) must be construed
to exclude the power to appoint silk, because the institution of silk
itself infringes the rights of non-silks
in terms of s 9 and s 22
of the Constitution.
[33] I think these contentions
demonstrate confused reasoning. If the institution of silk can be
said to infringe either s 9
or s 22 of the Constitution,
the whole institution is unconstitutional and that is the end of the
matter. The question whether
an interpretation of the power
contemplated in s 84(2)(
k
) allows the President to confer
silk does not arise. Even if the President has the power to do so, he
cannot make an appointment
which impacts on the constitutional rights
of others. What is more, because these contentions had not been
raised earlier, they
are devoid of any basis of fact. Consequently it
is not clear how the institution of silk in itself can be said to
impact on the
rights guaranteed by s 9 or s 22. What is it
in the institution of silk that offends the non-silks’ right to
equality
or the way in which they conduct their advocates’
practices? One can only speculate that these objections hark back to
Mansingh’s
objections to silk as an institution, for example,
that in practice silks are afforded certain privileges and that some
work is
reserved for silks only. I cannot see how these practices can
be said to violate the constitutional rights of non-silks. But if
they do, the objection, so it seems, should be directed against the
practices which are not inherent in the honour of receiving
silk –
rather than against the institution of silk itself.
[34] It follows that, in my view,
there is nothing in the broader context which compels a meaning of
‘honours’ that
deviates from the one clearly indicated by
the historical background of the provision. I therefore conclude that
the power to confer
honours bestowed upon the President by
s 84(2)(
k
), includes the authority to confer the status
of senior counsel on practising advocates. In the result the appeal
must be upheld
while the order of the court a quo is to be set aside.
With regard to the matter of costs, this is one of those rare
occasions
where not one of the parties asked for the costs of appeal
in its favour. As to the costs in the court a quo, the appellants did
not ask for any order against Mansingh. In consequence there will be
no order in their favour either in this court or in the court
a quo.
But, as I have said by way of introduction, costs in the court a quo
were awarded in favour of Mansingh against the President
and the
Minister. Since no appeal had been lodged against that court order,
it must stand, despite the fact that all the respondents
should, in
my view, have succeeded in warding off the declarator sought.
[35] In the result:
(a) The appeal is upheld.
(b) The order of the court a quo is
set aside and replaced with the following:
‘
The
application is dismissed. First and second respondents are ordered to
pay the applicant’s costs.’
_________________________
F D J BRAND
JUDGE OF APPEAL
APPEARANCES:
For
First Appellant: W H G van der Linde SC
A
D Stein
K
S McLean
I
B Currie
Instructed
by: Gildenhuys Lessing Malatji Inc
PRETORIA
Correspondents:
Honey Attorneys
BLOEMFONTEIN
For
Second Appellant: W H Trengrove SC
F
A Snyckers SC
S
Cowen
M
Sikhakhane
Instructed
by: Mkhabela Huntley Adekeye Inc
JOHANNESBURG
Correspondents:
McIntyre & Van der Post
BLOEMFONTEIN
For
First Respondent: N A Cassim SC
M
J Ramaepadi
W
Mostert
Instructed
by: Saders Attorneys
PRETORIA
Correspondents:
Phatshoane Henney Inc
BLOEMFONTEIN
For
Fifth Respondent: N Matlala
Instructed
by: Mothle Jooma Sabdia Inc
PRETORIA
Correspondents:
Matsepes Inc
BLOEMFONTEIN