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[2012] ZAGPPHC 3
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Mansingh v President of Republic of South Africa and Others (20879/2011) [2012] ZAGPPHC 3; 2012 (3) SA 192 (GNP); [2012] 2 All SA 295 (GNP); 2012 (6) BCLR 650 (GNP) (9 February 2012)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
DATE: 09 FEBRUARY 2012
CASE NO: 20879/2011
In
the matter between:
URMILLA
ROSHNEE DEVI
MANSINGH
.....................................................................
Applicant
AND
PRESIDENT
OF REPUBLIC OF
SOUTH
AFRICA
..............................................................................................
First Respondent
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
.........................................................
Second
Respondent
GENERAL
COUNCIL OF THE BAR
OF
SOUTH
AFRICA
......................................................................
….............
Third Respondent
JOHANNESBURG
SOCIETY OF
ADVOCATES
................................................................................................
Fourth
Respondent
INDEPENDENT
ASSOCIATION OF
ADVOCATES
OF SOUTH
AFRICA
..................................................................
Fifth
Respondent
LAW
SOCIETY OF
SOUTH
AFRICA
.............................................................................................
Sixth Respondent
JUDGMENT
PHATUDI, J
INTRODUCTION
[1]
The applicant, an admitted practising advocate and a member of the
Johannesburg Society of Advocates (JSA) seeks an order 'declaring
that the first respondent has no power in terms of [section] 84(2)(k)
of the Constitution [of the Republic of South Africa (Act
108 of
1996)] or otherwise to confer the status of senior counsel on
practising advocates ...''
1
The applicant further seeks 'costs against the President (first
respondent) and the Minister (second respondent) only She does
not
'regard it appropriate to seek costs against the professional bodies
cited as other respondents
2
in this application, even if they should choose to oppose the
application.'
3
[2]
All respondents, save the sixth, oppose the application. The sixth
respondent (LSSA) places on recorded their attitude towards
the issue
of senior counsel status which is a kernnel of this application.
They, however, state that they 'will abide by the decision
of the ...
court'.
4
It must be borne in mind that LSSA has six constituent members,
namely: Four statutory Law Societies
5
,
Black Lawyers Association (BLA) and National Association of
Democratic Lawyers (NADEL).
[3]
Lawyers for equality (Law equality), a voluntary association, applied
to be admitted as amicus curiae. They, in essence, support
the
applicant and endorse the sixth respondents' sentiments. Their
application is opposed by the third respondent (GCB). Unfortunately
no one appeared in the two days of hearing of this application on
behalf of the amicus curiae. I thought they would be of help
to me
and the court. Counsel for the President
6
submits that the Court and I are on our own.
[4]
The only issue that requires determination is whether the President's
responsibility of 'conferring honours'
7
include the power to confer the status of senior council
8
on practising advocates. The applicant contends, on the one hand,
that 'the President [of the Republic of South Africa] (the President)
has no power to confer the status of senior counsel (also known as
silk) on practising advocates'
9
and that there is no other legal source that empowers the President
to confer senior counsel status. On the other hand, the respondents
contends that the President's power to confer the status of senior
counsel on practising advocates falls within the ambit of section
84(2) (k) of the Constitution.
THE
PAST
[5]
I find it inevitable to briefly set out the historical background of
the institution of senior counsel or silk. MTW Arnheim,
in his
article, Silk, Stuff and Nonsense states that "the title "senior
counsel"' or, to be more precise, "senior
consultus",
is self explanatory
10
He
alludes to the monarch's royal personage and the power coupled with
the prerogatives they had in appointing "Queen's Counsel"
at the time they ruled within Southern Africa.
[6]
He states that 'the earliest "Queens Counsel" were
appointed in the reign of the first Elizabeth, at a time when the
Crown felt that it could not entirely rely on the advise of the then
senior barristers ... who tended to oppose the interest of
the Crown
especially in the all-important sphere of land law
11
.
The Crown decided to appoint from senior barristers, Counsel who
would advice, represent and protect the interest of the Crown
on land
laws. It is further stated that 'silk ... had to obtain leave to
appear against the crown ...'
12
The Counsel appointed by the Crown were named "Queen's Counsel"
(QC).
[7]
The title QC would change to King Counsel (KC) and vice versa
depending on the gender of the occupant of the throne. This is
illustrated by Arnheim who states that 'all silks changed from QC to
KC on 22 January 1901 when King Edward VII took over after
the death
of Queen Victoria'. It is further illustrated that 'all silks changed
from KC to QC on 6 February 1952 when the death
of King George VI
brought Queen Elizabeth II to the throne'.
13
Not to belabour the point, a silk is appointed to act as a counsel to
the Crown, regardless of who the monarch of the day is, and
his
proper title is neither QC nor KC but simply "one of Her
Majesty's counsel or one of His Majesty's counsel", as the
case
may be.
14
[8]
In his article, The History of the Division of the South African
Legal Profession,
15
Charles Friedman (Friedman) demonstrates on how the term King's
Counsel came about. He states that the first Kings Counsel in England
was appointed in 1604. The appointment "carried a salary of £40
per annum."
16
He further states that the term "silk" was taken from the
material of a King's Counsel's gown (which incidentally is
now nylon)
compared with the stuff or wool gown of other barristers"
17
[9]
The institution of awarding silk in South Africa has been "adopted"
pre 1961 by way of the Queen's prerogatives. When
South Africa became
a Republic in 1961, the QC kept their patents. New appointments were
made by the State President and named
Senior Counsel (SC). This was a
prerogative power bestowed on State President by the Constitution
(The Republic of South Africa
Constitution Act 32 of 1961, (1961
Constitution)) that provides that the '[State President] shall, ...
have
power
18
a)........
c) to confer honours'
19
[10]
Added thereto, section 7(4) provides that 'the State President shall
in addition as head of state have such powers and functions
as were
immediately prior to the commencement of this Act possessed by the
Queen by way of prerogative.' These provisions were
adopted verbatim
in Republic of South Africa Constitution Act 110 of 1983 (1983
Constitution). Section 6(3) provided that 'the
State President shall
... have
power
20
a).....
b) to confer honours'
[11]
Similar to section 7(4) of 1961 Constitution, section 6(4) of 1983
Constitution provides that 'the State President shall, in
addition as
head of the state, have such powers and functions as were immediately
before the commencement of this Act possessed
by the State President
by way of prerogative.'
[12]
The provision of section 82(1) of the Constitution of the Republic of
South Africa Act 200 of 1993 provides that 'the President
shall be
competent to exercise and perform the following
powers and
functions
, namely: (a) ...
(e)
to confer honours; It must be borne in mind that the clause:
"...powers and functions as were immediately prior to the
commencement of this Act possessed by the Queen/State President by
way of prerogatives" was excluded.
[13]
The powers and functions of the President are succinctly set out in
section 84 of the Republic of South Africa Act 108 of 1996
(the
Constitution). Section 84(1) provides that 'the President has the
powers entrusted by the
Constitution and legislation
,
21
including those necessary to perform the functions of Head of State
and head of the national executive. Section 84(2) provides
that 'the
president is
responsible
22
for
a)
...
k) Conferring Honours.'
[14]
It is common cause that
14.1 the South African
system has changed from pre 1961 monarchy to parliamentary
sovereignty in 1961 and finally to constitutional
democracy (1993 and
1996)
14.2 in the 1961 and 1983
Acts respectively, the State President, as Head of State, retained
"such powers and functions as
were possessed by the Queen prior
to 1961 Act by way of prerogatives".
23
14.3 the 1993 and 1996
Constitutions did not retain the said powers and functions the
Queen/State President possessed by way of
prerogatives.
14.4 the President has
only such powers as are bestowed on him by the Constitution or by
legislation consistent with the Constitution.
[15]
The appointment of Queen's Counsel was the Queen regnant's
prerogative. Queen Elizabeth I appointed QC at the time when "the
Crown felt that it could not entirely rely on the advice of the then
senior barristers, the Serjeants, with tendencies to oppose
the
interest of the Crown, especially in the all-important sphere of land
law".
24
The creation of QC was with "sole original function ... to
advice and represent the Crown on legal issues."'
25
Friedman
-
26
echoes that' that "a King Counsel, the first of whom was
appointed in 1604, [was] to represent the crown in cases in which it
was interested and which appointment carried a salary of £40
per annum."
[16]
It is apparent from the history set out above that the prerogative of
appointing KC or QC was solely on the monarch. The appointments
were
made solely with the purpose to advice and or represent the Crown in
cases of the Crown's interest. The title of such appointee
would
either be KC or QC. As shown earlier, KC or QC was appointed to act
as Counsel and to counsel only the Crown. Counsel would
seek leave to
counsel any other person other than the Crown. As a result thereof,
the appointee would be addressed as "one
of His or Her Majesty's
Counsel."
27
I as well, addressed all Senior Counsel during the proceedings as
"one of His Majesty's Counsel" though the applicant's
counsel prefers to be addressed "one of His President's
Counsel". He further submits that he would prefer to be
addressed
as President's Counsel than Senior Counsel if I find that
the President has the power to confer the status.
[17]
It is trite that prior to 1961, South Africa had a Queen up to the
creation of Union of Crowns between Britain and South Africa
with a
result of a King or Queen of South Africa being the same person as
the British head of State. The King or Queen had the
power to appoint
KC or QC, as the case would be, was still appointed solely with the
purpose to act as Counsel and to counsel or
represent the Crown in
cases of interest to the Crown. It has been demonstrated that the
1961 Constitution and 1983 Constitution
empowered the State President
in addition to the powers the President had as the Head of State, to
have such powers and functions
as were possessed by the Queen and
State President by way of prerogatives prior to commencement of 1961
and 1983 Constitutions
respectively (the prerogative clause).
28
[18]
It is trite that the prerogatives clause has been excluded from the
Constitution. "One of His President's Counsel"
29
submits
that the reading of section 84 of the constitution points to the fact
that many of those powers which were originally known
as
Crown/Royal/Executive prerogatives have now been constitutionalised.
30
Counsel for the forth respondent
31
submits
that it was an oversight on the part of the drafter of the
constitution not to include the provisions enacted under section
6(4)
of the 1983 Constitution. The third respondent's counsel
32
submits that section 84 of the Constitution codifies the powers and
functions of Head of State which were previously exercised
by the
Head of State under the former constitutions.
33
He further submits that the powers and functions excluded in the
constitution are those that are no longer reconcilable with the
fundamental structures and principles of the constitution. He further
thereto submits that the powers and functions codified include
the
Royal prerogative. Those prerogatives included the conferring of silk
on senior advocates. He lastly on this point, submits
that the said
prerogative has been grounded in the constitution especially under
section 84(2) (k) i.e.
the
Constitution is cutting the relations with the past. Counsel for the
fourth respondent firstly refers me to the historical background
from
an article The Rank of Queen's Counsel
35
He further refers me to the judgment in Peter H Lenoir et al v Joseph
Norman Ritchie
36
(Lenoir case) where the court, as he submits, "made it
absolutely clear that the award of silk was an honour. He quotes
paragraph
52 thereof, where it is Stated that
;
[i]n
England, the sovereign, as a general rule, uses the prerogatives to
confer honours and dignities upon eminent and deserving
barristers,
noted for the exhibition of superior legal talents and abilities and
public service He further quotes from paragraph
85 where it was held
that 'the right to appoint Queen's counsel is a branch of the Royal
Prerogative, that it, (equally with the
power to grant letter Patent
of Precedence, to make Sergeants-at-law, Judges, Knights, Baronets
and other superior titles of dignity
and honour) flows from the
fountain of honour which has its seat and source in the person of
royalty. In England... a Queen's counsel
is the standing counsel of
the Queen, retained by her to be of her counsel in all matters in
which he may require his services."
[21]
Counsel submits that the appointment of silk started as an office and
continued to exist as an honour which appointment was
made by the
monarch under the prerogative to award honours. He demonstrates with
an aid of a schedule he handed up, how these prerogatives
were
inherited by the 1961 and 1983 Constitution from the Monarch's. He
states that the said prerogatives were not repeated in
the interim
and final Constitution. He further thereto refers me to the
memorandum dated 7 September 1995 where it is stated that
"the
treatment of those powers previously referred to as prerogatives
cannot exist under the new constitution. Any reference
to such
concept should be avoided. All powers have to be constitutionalised".
[22]
In my evaluation of the historical background, especially how the
institution of KC/QC or Silk was first established, it is
clear that
the Monarch needed barristers who would advice the Crown in all
important spheres of the law and to represent the Crown
in protecting
the interest of the Crown in land laws. The appointed Q.C., who would
be known as "one of His/Her Majesty's
Counsel, would first
obtain leave to appear against Crown. It is apparent from the history
set out by various jurists that the
QC function was to advice the
crown and not act against without leave. Baker in his article, states
that the Queen Elizabeth I
was unwilling to appoint Bacon because he
had opposed the government. Bacon's later appointment was "motivated
by the desire
to ensure that a newly risen star should not use his
talents against the crown. Bacon was appoint but not with full
benefits.
37
This is an indication that the QC was appointed as a "shield"
of the Crown's interest in the land laws. The appointment
of QC was a
matter of the Royal's prerogatives, as Baker puts it, "that such
persons ... shall be appointed to be one of His
Majesty's Counsel at
law by letters patent under the seal of England shall have presidency
in all places before sergeants at law
that are not the King's
sergeants".
[23]
The Crown, in "fear" of loosing cases of interest to its
land rights, thought of securing the barristers who are
articulate
and clear in law to be on its side. The main function of such
appointed barrister was to advice the crown on land laws.
The
barristers appointed as Q.C were respected by the Crown. The
barristers felt honoured by the appointment to the office and
by
being the bearers of patent. The appointment of Q.C was the
King/Queen's prerogative power. This prerogative power to appoint
the
Q.C was enacted in the 1961 Constitution under section 7(4). The said
prerogatives were incorporated in the 1983 Constitution
under section
6(4) and not in the interim and final Constitution. I agree with the
Fourth and sixth respondent's counsel that the
final constitution
makes a clean break with the past. I am of the view that it was not
an oversight on the part of the drafters
on behalf of South Africans
by not including the said prerogatives in adopting the Constitution.
I do not agree with the Third
respondent's counsel that the
prerogatives the Monarchs and the State President's respectively are
codified in the Constitution.
The drafter's thought of having a break
with the past is, in my view, an avoidance of adopting concepts into
the Constitution which
are not based on the will of the people of
South Africa. It was probably in avoidance of creating an
allocthonous constitution.
The Constitution is drafted and adopted by
South Africans in order to build a united and democratic South
Africa. This renders
the South African Constitution, autochthonous.
THE
PRESENT
[24]
Section 84(2)(k) of the Constitution provides that the President is
responsible
for conferring honours.(my emphasis) The question
to decide is whether the President has the power to award silk to
practising
advocates. Counsel for the President stretches it further
that the court is to determine the scope, ambit and breath of the
word
honour as found in section 84(2)(k) of the constitution. Lastly,
the court is to determine what the word "honour" entails
as
it appears in the Constitution.
[25]
It is common cause that the Constitution is the supreme law of the
Republic and does not permit the exercise of public power
that is not
authorised by the Constitution or any other law. It is further common
cause that the President alone has the powers
entrusted by the
Constitution and legislation
as worded in terms of section
84(1). Further thereto, the President, as the Head of State, is
responsible for performing the functions
enlisted in section 84(2).
[26]
The applicant submits that the dictionary definitions of the word
"honour" are not particularly helpful in determining
the
scope of the honour-conferring power of the head of state in our
democratic dispensation. The applicant further submits that
the
phrase "conferring honours" under section 84(2) (k) cannot
mean any act by the President which result in an individual
being
accorded an honour which he did not earn. She lastly submits that
conferring the status of senior counsel on practising advocates
by
the President cannot be regarded as an "honour".
[27]
The respondents submit in rebuttal that the court must apply the
purposive interpretation in the constitutional context in
interpreting the word "honour" as phrased in section
84(2)(k). He further submits that the past 50 years background be
taken into account in determining the intended meaning in that the
conferral by the President of senior counsel status on practising
advocates is wide enough to include the concept of honour.
[28]
The word "honour" is defined in Shorter Oxford English
Dictionary on Historical Principles ,
38
as
1 High respect, esteem,
deferential admiration; an expression of this; glory, credit,
reputation, good name
2 Nobleness of mind or
spirit; magnanimity; uprightness; adherence to what is due or correct
according to some conventional or accepted
standard of conduct
3 Exalted rank or
position; distinction ...; a title of respect given to a country
court etc Judge ...
4 A thing conferred or
done as a mark of respect or distinction, esp a title of rank ...
5 A source or cause of
distinction; a person who or thing which does credit to another..."
[29]
In my view, the word "Honour" can, on the one hand, be
defined as having a respect
39
over another person who did something good beyond human expectation.
In this context, honour has an element of "admiration."
On
the other hand, a person may feel honoured to unexpectedly be chosen
to be in a team of someone respectable or to be granted
a particular
honourable and respectable status. The respect the chosen may have
over such a respectable person may mean that one
would not like to
compete with such a person and would always wish to be on that
person's side. In this context, "fear,"
is an element.
[30]
Confer is defined as
"1
5
Give, grant or bestow (a title, degree, favour, honour
40
etc).
41
"
In simpler terms, confer is merely to "grant a title or honour"
to a person.
[31]
The interpretation of phrases in the Constitution must be done in a
manner that is compatible with the fundamental values embodied
in it.
The phrase embodied in section 84(2) (k) of the Constitution is no
exception.
[32]
The applicant submits that an "honour" for purpose of
section 84(2) (k) is a recognition from the head of state for
distinguished service to the country.
42
She refers to the Presidency's website
43
where it is stated that honours that may be conferred by the
President as national orders is, among others, Order of Luthuli,
which is awarded to South Africans who made meaningful contribution
to the struggle for democracy, human rights, nation building,
justice, peace and conflict resolution. Order of Luthuli is one of
the "honours" the President confers on lawyers who
have
rendered distinguished service to the country.
[33]
The applicant further submits that the conferral of the status of
senior counsel is not mentioned on the Presidency's website
as part
of the system of national orders. She submits that "silk"
is not an 'honour' as contemplated in section 84(2)(k)
and is not
viewed as such by the President.
[34]
In rebuttal thereto, the President states that to read [the word]
"honour" in section 84(2)(k) of the Constitution
as
excluding the conferment of senior counsel status to deserving
practising advocates is, to do unnecessary violence to the values
of
the constitution...
44
'He
further states, as advised, that "the contention that conferment
of senior counsel status to practising advocates who qualify
is not
an "honour" offends against the ordinary construction of
the word "honour".
45
The
President submits that the argument advanced by the applicant that
the presidency's website listing National Orders and not
including
the conferment of senior counsel status as one such honour indicates
that the senior counsel status is not an "honour"
is
unfortunately misplaced".
46
He states further that the framers of the Constitution must have been
comfortable that the power of the President to confer honours
includes the power of the President, among other honours, to confer
senior counsel status to practising advocates who qualify."
47
47
[35]
The question that arise is how does a practising advocate qualify to
be conferred a status of senior counsel. It is noted that
''advocates
who qualify" to be conferred the status of senior counsel,
apply
to be so "honoured". The application procedure used by the
Johannesburg Bar Council is that:
35.1 The candidates are
invited to apply for silk. The applicant must discuss his/her
proposed application informally with the Leader
of the Bar.
35.2 The Bar council
considers the application based on the candidate's practice which
should consist of good quality work. If
the application succeeds, the
Chairperson of the Bar discusses the recommended application(s) with
the Judge President.
35.3 If the Judge
President approves of the application(s). he forwards the
recommendation to the Minister of Justice and to the
President.
48
[36]
On perusal of the Presidency website, it is clear that the presidency
•[sought] to move away from the past and the President's
Advisory Council on National Orders was given a task and
responsibility to review the system of National Orders and awards.'
This
is a clear indication that the presidency recognised the
injustices of the past South Africa by moving away from such
practices
and to lay the foundation for a democratic and open society
based on the will of the people. The collective outcome of the
President's
Advisory Council on National Orders together with a panel
of academics and specialists resulted in the commissioning and
ultimate
design of the new National Orders. The new National Orders
have been concerned in the spirit of rebirth.
[37]
Considering the submissions made by the parties, I am of the view
that the argument advanced by the applicant that non inclusion
of
conferment of senior counsel status on the presidency website is not
one such "honour" as envisaged in terms of section
84(2)(k), is correct. I am further of the view that the submission is
not misplaced. The Order of the Baobab, for instance, is
awarded to
South African citizens for services distinguished beyond the ordinary
call of duty. It is an "honour" awarded
for exceptional and
distinguished contribution in community service. I am reluctant to
accept that the framers of our autochthonous
Constitution were
comfortable that the President is empowered in terms of section 84(2)
(k) to confer the status of senior counsel
on practising advocates.
[38]
Are the services and contributions made by practising advocates
exceptional or beyond the ordinary call of duty that warrant
an award
of the status of senior counsel? Can an award of the status of senior
counsel be equated with, for instance, Order of
Luthuli or Order of
the Baobab, the latter being awarded to South African citizens with
distinguished service that is way above
or beyond the ordinary call
of duty?
[39]
1 enquired from third and fourth respondents' counsel if the services
of the practising advocates were beyond the ordinary
call of duty
that warrant such an award or did they serve the people of South
Africa exceptionally or beyond the ordinary call
of duty. I further
enquired if such advocates have done the pro bono work beyond the
ordinary quota expected of the legal practitioner?
[40]
None of the respondents answered the question to persuade me that the
conferral of senior counsel is indeed an "honour".
They
indicate that an "honour" on the part of the advocates is
assessed on the "good quality work" and on "a
person
of perceived ability, leadership qualities and maturity of judgment".
Their emphasis is on "a person of integrity
and with honourable
conduct".
49
[41]
The President submits that 'there are other forms of "honour"
bestowed on individuals who distinguish themselves
in one or other
manner/ He illustrates that [he has] in terms of section 84(2)(k) of
the Constitution, conferred honours on members
of the South African
Police Services... who has served during the FIFA World Cup 2010...
and who has displayed an irreproachable
character and exemplary
conduct during that event.
50
The award or medal referred to is the "Soccer World Cup 2010
Support Medal, 11 June to 11 July 2010." The President deemed
it
desirable to commemorate the successful Soccer World Cup 2010
international event. He as a result, deemed it appropriate to
distinguish the said period in a suitable manner. The President then
Gazetted
51
'...by virtue of the powers vested in me in terms of section 84(2)
(k) of the Constitution ... read together with section 44(2)
of the
South African Police Services Act, (Act 68 of 1995); I hereby
institute a medal, which shall be known as the "Soccer
World Cup
2010 Support Medal", which shall be reserved exclusively for
that purpose,...'
[42]
Section 44(1) of the South African Police Services Act (SAPS)
provides that 'the National or Provincial Commissioner may. after
consultation with the Minister or member of the Executive Council,
make an appropriate award to any member or other person for
meritorious services in the interest of the Service'. Subsection (2)
provides that 'the President may institute, constitute and
create
decorations and medals, as well as bars, clasps and ribbons in
respect of such decorations and medals, which may be awarded
by the
President, the Minister or the member of the Executive Council,
subject to such conditions as the President may determine,
to any
member or other person who has rendered exceptional service to the
Service/
[43]
It is common cause that the President is empowered and entrusted by
the Constitution and legislation to perform the functions
of the Head
of State. He as well has the required authority to exercise and
perform the power and function for conferring honours.
52
It
is further common cause that the 2010 World Cup is an international
event which South Africans in particular, were overwhelmed
to host
successfully. Certain members of SAPS, reservists and other civilians
acted beyond their ordinary call of duty by ensuring
and assuring the
people in South Africa of their safety by displaying an
irreproachable character and exemplary conduct during
the event. It
is on this premise the President deemed it appropriate to honour
those people by instituting a medal known as the
"Soccer World
Cup 2010 Support Medal". In my view, the President acted
correctly as empowered by the Constitution and
legislation in
honouring those people by instituting the medal.
[44]
Considering all the above, It is clear that the members of SAPS who
have been honoured by being awarded the Soccer World Cup
2010 Support
Medal, did not apply to be so honoured. It is on that basis I am of
the view that an honour is
earned
while serving the country
exceptionally beyond the ordinary call of duty. It is noted that
practising advocates who wish to be
"'honoured" by being
awarded the status of senior counsel, apply first to the Bar Council
they are affiliated to. The
Bar Council submits the recommended names
to the Judge President of the particular division who makes the
recommendation to the
Minister of Justice. The Minister of Justice in
turn makes the recommendation to the President, who confers the
status of senior
counsel.
[45]
There is no legislation, including the Admission of Advocates Act 74
of 1964 (Advocates Act) that empowers the President to
institute,
constitute and award the status of senior counsel to practising
advocates or any legal practitioner who has displayed
"good
quality work" to the legal profession. The term "Senior
Counsel" is not even defined in the Advocates
Act. The term only
appears in section 8A that provides that '[t]he President may at the
request of any person appointed as a Senior
Counsel of the Republic
while in the service of the State, withdraw such appointment, and
thereupon such person shall revert to
the status which he had as an
advocate immediately prior to that appointment'. Reference to "any
person appointed as a Senior
Counsel," refers, in my view, to
the Senior Counsel appointed by the King/Queen or the State
Presidents in terms of the previous
Acts by way of their
prerogatives. Counsel for the sixth respondent
53
submits that Kenya Advocates Act incorporates the award of Senior
Counsel Ship. Counsel submits that the status is awarded to "great
lawyers" who have served the community and have been presidents
of the Law Society. He further submits that such lawyers are
considered to have served the community and legible for an award of
Senior Counsel. In South Africa there is no legislation in
place that
covers the conferment of honours on practising advocates.
[46]
The Constitutional Court in President of the Republic of South Africa
& Another v Hugo
54
considered on appeal the nature of the powers granted to the
President by section 82(1 )(k) of the interim Constitution. The
judgment
of the majority penned by Goldstone J noted that 'Section
82(1) contains powers which historically are the non-statutory or
prerogative
powers which have traditionally inhered in the English
monarch. ...In South Africa, prior to 1993, some, but not all, of
those
powers have been codified in earlier constitutions. Those that
remained non-statutory'
55
were
dealt with by reference to the exercise of the prerogative by the
English monarch.
56
The court held that "there is no express reference to
prerogative powers and those powers of the President which originated
from the royal prerogatives are to be found in section 82(1).
57
It is further held that "two conclusions can be drawn from the
foregoing. First, the powers of the President which are contained
in
section 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 section 82(1)/
58
Section 82(1) of the interim Constitution is almost a replica of
section 84(2) of the final Constitution. Section 82(1) (e) of
the
interim constitution is a replica of section 84(2) (k) of the
Constitution. The words of Goldstone J that "there are no
powers
derived from the royal prerogative which are conferred upon the
President other than those enumerated in the constitution"
requires no qualification. It must, however, be borne in mind that
the prerogative referred to is a 'special right or privilege
exercised by a monarch or Head of State over all other people, which
overrides the law and is in theory subject to no restriction
.
59
The President's power is entrusted only by the Constitution and
legislation. The Lenoir case finds no application within our
democratic
autochthonous Constitution in that "in England, the
sovereign... uses the prerogatives to confer honours"
60
[47]
I do not think that section 84(2) (k) proposes a system of awarding
any professional who attained an advanced skill in forensic
work in
his or her profession a status of seniority. If conferring honours
envisaged in terms of section 84(2)(k) does include
awarding the
seniority status to the legal profession, I am afraid, the President
will be responsible for conferring honours of
seniority to
accountants, doctors, auditors, to mention but a few, of 12 years
experience with trace records of "good quality
work".
[48]
Counsel for the fifth respondent submits that the institution of
"Senior Counsel" should be retained because senior
counsel
"intimidates" judges when advancing arguments in court.
61
She persists with her submission notwithstanding my several enquiries
of her usage of the word instead of the word "persuades".
Do practising advocates really apply for the status of senior counsel
with the purpose of intimidating judges? Do Judges President
and
Minister of Justice and Constitutional Development really recommend
to the President to appoint Senior Counsel to intimidate
judges?
[49]
In my final analysis, the appointment of practising advocates as
senior counsel does not amount to the conferring of an honour
within
the meaning of section 84(2)(k) of the Constitution of the Republic
of South Africa.
[50]
I cannot agree more with the President's counsel
62
that the institution of silk promotes the culture of hard work. It
inspires the young advocates and instils 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.
THE
FUTURE
[51]
The future is uncertain. The Legal Practice Bill is still in the
making. The version of the Bill, (as I am made to believe,
is as at
December 2010) provides under section 95 that -
;
[t]he
Minister must, after consultation with the council, prescribe the
manner of application, procedure and criteria for the conferring
of
senior status on legal practitioners". Fortunately, I am neither
required to determine the future of the status of senior
counsel nor
to pre-empt how it will be handled. The ball is in the capable hands
of the Legislature and the Legal Profession.
CONCLUSION
[52]
It is indeed correct that granting the relief sought will imply that
all awards of Senior Counsel's status made since the advent
of the
interim Constitution on 27 April 1994 are invalid. The applicant
states that that' does not follow that such awards should
be set
aside. Fortunately, once more, I am not required to consider this
aspect because the applicant does not seek such relief
in these
proceedings. This is a matter I again leave in the capable hands of
the Legal Profession or another forum.
[52]
It is trite that costs follow the event. Counsel for the applicant
submits that he and his team act pro amico. They are, as
a result,
only entitled to disbursements incurred.
[53]
I, in the result, make the following order:
ORDER
53.1
The first respondent has no power in terms of section 84(2) (k) of
the Constitution of the Republic of South Africa to confer
the status
of senior counsel on practising advocates.
53.2
First and Second respondents are ordered to pay the applicant's
costs.
AML
PHATUDI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
HEARD
ON:
DATE
OF JUDGMENT:
COUNSEL
FOR APPLICANT: Adv. Nazeer Cassim SC
Adv.
Owen Rogers SC
Adv.
Eduard Fagan SC
Adv.
MJ Ramaepadi
INSTRUCTED
BY: SADER ATTORNEYS, JHB
COUNSEL
FOR FIRST AND SECOND RESPONDENTS: Adv. IAM Semenya
SC
Adv.
Z Gumede
INSTRUCTED
BY: STATE ATTORNEY, PTA
COUNSEL
FOR THIRD RESPONDENT: Adv. WHG Van der Linde SC
Adv.
JMA Cane SC Adv. A Stein Adv. K McLean
INSTRUCTED
BY: GILDENHUYS LESSING MALATJI INC COUNSEL FOR FOURTH RESPONDENT:
Adv. WH Trengrove SC
Adv.
APH Cockrell SC Adv. FA Snyckers SC Adv. NH Maenetje SC Adv. S Cohen
Adv. MFM Sikhakhane
INSTRUCTED
BY: MKHABELA HUNTLEY ANDEKEYE INC, PTA
COUNSEL FOR FIFTH
RESPONDENT: Adv. M Klein INSTRUCTED BY: WERNER ROOS IMMELMAN, PTA
COUNSEL
FOR SIXTH RESPONDENT: MOTLE JOOMA & SABDIA INC, PTA
1
Notice
of Motion page 2
2
The
third - sixth respondents
3
FA
para 11 pay 10
4
Nics
Swart AA para 6 page 697.
5
Cape
Law Society; Kwa-Zulu Natal Law Society; Law Society of the Free
State and the Law Society of the of the Northern Province.
6
Adv
1AM Semenya SC
7
Paragraph
84(2){k) of the Constitution
8
"S.C."
or silk - originally QC, KC
9
FA
para 3 page 8.
10
Arnheim
pg 377
11
Page
377
12
Arnheim
page 378
13
Page
378
14
Page
378-379
15
De
Rebus, February 1990
16
Page
265 AA)
17
Page
265
18
My
underline
19
Section
7(3)(c) of Act 32 of 1961
20
My
underline
21
My
underline
22
Underline and bold is my emphasis
23
Section
7(4) of 1961 Act and 6(4) of 1983 Act
24
MTW
Arnheim in his Silk Stuff & Nonsense 1984 vol 101 SAY @ page 378
25
Ibid
26
C
Friedman - In History of the division of the SA Legal Profession De
Rebus 1990 @ page 1387
27
Section
7(4) of Act 32 of 1961 of section 6(4) of Act 110 of 1983
28
Adv 1AM Semenya SC
29
Adv
1AM Semenya SC
30
First
& second respondents heads of argument, page 7 para 24(f)
31
Adv
WH Trengrove SC
32
Adv
WHG Van der Linde SC
33
1961
and 1983
35
First and second respondents' aannexure
112
at
page 237
36
Penned
by Baker (The author's full names are not clear from the article. I
rely on Mr Trengrove's submission of his name as Baker)
37
The
patent and annual fee of £40
38
Fifth
edition, volume 1 A-M
39
Respect
as taking a hat off for a person
40
Honour
is my insertion
41
Shorter
Oxford English Dictionary (op cit) vol 1 A-M
42
2
FA
pg 22 para 41
43
www.thepresidencv.gov.za
44
P.AA,
p 219 para 5.11
45
P.AA,
p 219 para 5.11
46
AAp220
para 6.1
47
7
AA page 221 para 6.6
48
Third
respondent AA para 64-68
49
"Go
tlotla"
50
AAp220
para 6.3
51
Government Gazette 34106 of 15 March 2011.
52
Section
84(2)(K)
53
Mr
Nano Matlala. Argument advanced from the bar. No HOA were submitted
54
1997(4)5A
1 CC
55
My
underline
56
Paragraph
[5] at page 6
57
Paragraph
[7] at page 8 {considering further the exclusion of the prerogative
clause)
58
Paragraph
[8] at page 8
59
As
defined in The New Shorter Oxford English Dictionary
60
Op
cit
61
Adv
Van Veenendal submits orally No HOZ were prepared and handed in.
62
Adv
1AM Semenya SC