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[2013] ZACC 40
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Mansingh v General Council of the Bar and Others (CCT 43/13) [2013] ZACC 40; 2014 (2) SA 26 (CC); 2014 (1) BCLR 85 (CC) (28 November 2013)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 43/13
[2013]
ZACC 40
In
the matter between:
URMILLA
ROSHNEE DEVI MANSINGH
...................................................
Applicant
and
GENERAL
COUNCIL OF THE BAR
.................................................
First
Respondent
JOHANNESBURG
SOCIETY OF ADVOCATES
.........................
Second
Respondent
PRESIDENT
OF THE REPUBLIC OF
SOUTH
AFRICA
................................................................................
Third
Respondent
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
.............................................................................
Fourth
Respondent
INDEPENDENT
ASSOCIATION OF ADVOCATES
OF
SOUTH AFRICA
...........................................................................
Fifth
Respondent
LAW
SOCIETY OF SOUTH AFRICA
..............................................
Sixth
Respondent
Heard
on : 22 August 2013
Decided
on : 28 November 2013
JUDGMENT
NKABINDE J
(Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Madlanga
J, Mhlantla AJ, Skweyiya J, Van der Westhuizen
J and Zondo J
concurring):
Introduction
This
is an application for leave to appeal against the decision of the
Supreme Court of Appeal
1
setting aside the order of the North Gauteng High Court, Pretoria
2
(High Court). The applicant successfully launched proceedings in the
High Court, and obtained declaratory relief that section
84(2)(k) of
the Constitution does not authorise the President of the Republic
(President) to confer the status of senior counsel
on advocates. The
High Court ordered the President and the Minister of Justice and
Constitutional Development (Minister) to pay
the applicant’s
costs. It granted leave to the General Council of the Bar (GCB) and
the Johannesburg Society of Advocates
(JSA)
3
who, after unsuccessfully seeking leave to appeal directly to this
Court,
4
appealed to the Supreme Court of Appeal. The Supreme Court of Appeal
reversed the High Court’s decision and concluded that
the
Constitution does empower the President to confer, as an honour,
senior counsel status on advocates.
At
the heart of the dispute lies the correct interpretation of section
84(2)(k),
5
in particular, whether the President has the power under that
section to confer silk or senior counsel
6
(SC) status on advocates. It must be acknowledged at the outset that
this case is not about whether the institution of silk or
SC status
is good or bad, or whether it is worthy of protection. Nor is it
about the merits of the applicant’s own unsuccessful
applications for SC status
.
Parties
The
applicant, Ms Urmilla Roshnee Devi Mansingh, is a practising
advocate and member of the JSA.
7
The GCB and JSA, first and second respondents respectively
(collectively referred to as respondents), are professional legal
associations with corporate personality whose membership primarily
consists of practising advocates.
Historical
context and constitutional scheme
It
is convenient to set out briefly the historical background on the
powers of the President regarding the conferral of honours
and the
constitutional framework.
8
Prior to 1994, following the Westminster model, the “royal
prerogative” was a source of power for South African heads
of
state derived not from the Constitution or other statutes but from
the common law.
9
Historically, the conferral of silk was considered an exercise of
the “honours prerogative” under the English law
received
into South African law under the Union Constitution of 1910.
10
Section 7 of the Republic of South Africa Constitution Act
11
went further and expressly reserved this aspect of the prerogative
power for the President.
12
These specific powers of the Crown have been described as a partial
codification of the prerogative powers.
13
Section 6 of the Republic of South Africa Constitution Act
14
retained the prerogative powers of the executive in terms similar to
those of its predecessor, section 7(3) and (4).
The
powers and functions of the President in the interim Constitution
15
were set out in section 82(1).
16
This section provided, in subsection (1)(e), that the President was
competent to exercise the power “to confer honours”.
The
section 82(1) powers had their origin in the prerogative powers
exercised under the Constitutions of 1910, 1961 and 1983
by South
African heads of State. Other than the powers in that section, there
were no other powers conferred upon the President
derived from the
royal prerogative.
17
Similarly,
Chapter 5 of the Constitution
18
provides for the powers and functions of the President and the
national executive. Section 84 of the Constitution provides, in
relevant part:
“
(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—
.
. .
(k)
conferring honours.”
Litigation
background
High
Court
The
applicant sought relief declaring that section 84(2)(k) does not
authorise the President to confer SC status or silk on advocates.
19
The High Court, relying on its interpretation of the 1961 and 1983
Constitutions, found that the President, acting as Head of
State,
retained under those constitutions “such powers and functions
as were possessed by the Queen and State President
by way of
prerogatives prior to the commencement of the 1961 and 1983
Constitutions, respectively”.
20
The Court analysed the origins of the institution of silk and
attached weight to the fact that the prerogative of appointing
King’s Counsel (KC) or Queen’s Counsel (QC)
21
rested solely with the monarch.
22
It recognised that the Constitution “makes a clean break with
the past” and held that the appointment of silk does
not fall
within the meaning of “conferring honours” in terms of
section 84(2)(k).
23
Supreme
Court of Appeal
On
appeal by the respondents, the Supreme Court of Appeal, per Brand
JA, defined the issue in narrow terms, finding that the question
whether SC status could be conferred by the President turned
exclusively on the interpretation of section 84 of the
Constitution.
24
The Court upheld the appeal. It held that section 84(2)(k) empowers
the President to confer, as an honour, SC status on advocates.
The
Court held that there is nothing in the historical or broader
context that is at odds with the interpretation that section
84(2)(k) includes the authority to confer SC status on practising
advocates.
25
The
Court held that constitutional provisions must be construed
purposively and in a contextual manner and that courts are
simultaneously
constrained by the language used. It held that courts
may not impose a meaning that the text is not reasonably capable of
bearing.
In other words, the interpretation should not be “unduly
strained”
26
but should avoid “excessive peering at the language to be
interpreted without sufficient attention to the historical
contextual scene”, which includes the political and
constitutional history leading up to the enactment of a particular
provision.
27
The Supreme Court of Appeal held 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.”
28
The
High Court relied on National Orders, for example the Order of the
Baobab and the Order of Luthuli, to determine the characteristics
of
an honour. But the Supreme Court of Appeal held that there is no
basis to treat this class of honours as definitive of what
is
capable of being described as an honour in the constitutional
sense.
29
The respondents raised the alternative argument that even if the
conferral of silk cannot be accommodated under the honours power
in
section 84(2)(k), it is authorised by section 84(1) as an auxiliary
power necessary to carry out a function of the President
as Head of
State. The Supreme Court of Appeal made no finding on this. The
Court stated that it follows, on a purely linguistic
basis, that the
concept of honours bears a meaning wide enough to include the
conferral of silk. It upheld the appeal, set aside
the declaratory
relief granted by the High Court and replaced it with an order
dismissing the application.
In
this Court
The
applicant seeks leave to appeal against the decision of the Supreme
Court of Appeal. Contending that the interpretation by
the High
Court is correct, she submits that the interim Constitution did not
preserve the former prerogative powers encapsulated
in the 1961 and
1983 Constitutions. The applicant argues that the President, acting
as Head of State under the interim Constitution,
enjoyed the power
to confer honours and that the Constitution adopts the same approach
in section 84(2). This power to confer
honours, she contends, does
not extend to granting silk or SC status.
The
respondents oppose the application and contend that the Supreme
Court of Appeal’s interpretation is correct, that the
appeal
has no prospects of success and that leave to appeal should be
refused. They raise the alternative argument that under
section
84(1) of the Constitution the conferral of silk could be understood
as an auxiliary power necessary to carry out a function
of the
President as Head of State. In the view I take of the matter, it
will not be necessary to decide this.
Issues
The
central issue is whether the President’s power to confer
honours under section 84(2)(k) includes the power to confer
silk on
advocates. This raises the question whether the conferral of the
status of silk is an honour. A determination of this
issue and the
question that arises therefrom requires an interpretation of the
word “honours”.
Should
leave to appeal be granted?
The
issue raised concerns the President’s power under the
Constitution to confer honours on advocates. Fundamental to the
principle of legality is the proper source of the public power
exercised by the President under the Constitution.
30
The interpretation of the Constitution is of considerable importance
beyond the parties before this Court.
31
It is thus in the interests of justice to grant leave to appeal.
Does
the power under section 84(2)(k) include the conferral of silk?
In
deciding whether the President’s power to confer honours under
section 84(2)(k) includes the power to confer silk,
it is
important to understand the meaning of the phrase “honour”.
The applicant raised various arguments in support
of her submission
that the interpretation adopted by the Supreme Court of Appeal was
incorrect.
32
Most of those contentions are based on factual allegations that have
no relevance to the issue at hand. The irrelevance of these
factual
allegations was conceded by the applicant in oral argument.
It
is necessary to establish the correct interpretive approach. The
Constitution is the supreme law of the Republic.
33
This Court has given approval to an interpretive approach that,
while paying due regard to the language and the context, is generous
and purposive and gives expression to the underlying values of the
Constitution.
34
The President’s power to confer honours, as with all other
exercises of public power, is subject to the rule of law and,
as a
matter of course, must be defined within permissible constitutional
boundaries. This Court is charged with determining the
boundaries
when interpreting the section.
The
applicant challenges the Supreme Court of Appeal’s approach,
contending that the Court asked the wrong question. She
incorrectly
contends that there is no purposive interpretation that would
“necessitate” including silk within the
concept of
honours. The Supreme Court of Appeal held that the ordinary meaning
of the term “honours” is “wide
enough” to
encompass the award of silk. There is, in my view, no difficulty
with the approach taken by the Supreme Court
of Appeal, including
its remark that, when adopting the purposive and contextual
approaches, courts are simultaneously constrained
by the plain
language used in the section.
35
The constitutional context preceding the enactment of the provision
in question is also important in determining the scope and
purpose
of the provision.
Meaning,
ambit and scope of “honours”
Although
it is not sufficient to focus only on the textual meaning of the
phrase, the text is the starting point of construction.
36
As the Supreme Court of Appeal correctly found, the phrase connotes
“something conferred or done as a token of respect
or
distinction; a mark or manifestation of high regard.”
37
This meaning is consistent with the dictionary definition of the
word “honour”, to which the dictionary adds “especially
a position or title of rank, a degree of nobility, a dignity.”
38
The
applicant however argues that dictionary definitions are of little
assistance. She contends that the correct enquiry is not
whether the
word’s meaning is wide enough to include a particular
practice, but only whether that
practice
falls within the
word’s ordinary meaning.
The
applicant further argues that the concept of an “honour”
must be interpreted on the basis of general characteristics
drawn
from the current list of National Orders. She contends that since
the institution of silk does not share these characteristics,
it is
not an “honour”. I do not agree. This interpretation
ignores the textual meaning of the word “honours”.
That
meaning is indeed wide.
The
applicant maintains that the phrase “conferring honours”
cannot mean an act of the President that results in an
individual
being accorded greater respect or honour by society than he or she
had before. She argues, therefore, that section 84(2)(k)
empowers the President to express the country’s admiration or
thanks for some past act or achievement, considered to be
of such
significance as to be worthy of recognition by the country as a
whole. The applicant limits the power further by characterising,
for
example, the purpose,
39
form
40
and intention
41
with which the honour-conferring power is exercised. Although the
applicant admits that the honours “are not a closed list
of
honours”, she does not clarify the proposed narrowly defined
power of conferring honours. Nor does she say why the phrase
“honours”, when properly construed, may not be used for
accomplishment in other areas.
The
narrowly defined power suggested by the applicant also ignores the
contextual scene. The history of the power to confer honours
is
relevant to its present day meaning. While the historical
context may not be decisive, it is valuable in determining
the
meaning of the term “honours”. However, sight should not
be lost of the fact that the Constitution made a clean
break from
the past and that ordinarily its text must thus be interpreted on
its own terms. These remarks were echoed by this
Court in
First
Certification
42
in relation to the power to pardon in section 84(2)(j) of the
Constitution. The Court said:
“
The
power of the South African Head of State to pardon was originally
derived from royal prerogatives. It does not, however, follow
that
the power given in the NT [New Text] 84(2)(j) is identical in all
respects to the ancient royal prerogatives. Regardless of
the
historical origins of the concept, the President derives this power
not from antiquity but from the NT itself. It is [the]
Constitution
that proclaims its own supremacy. Should the exercise of the power in
any particular instance be such as to undermine
any provision of the
NT, that conduct would be reviewable.”
43
(Footnote omitted.)
Historically,
the conferral of silk was considered an exercise of the “honours
prerogative” under the English law,
which was received into
South African law under the Union Constitution. The Head of State
possessed both a codified honour conferring
power and an
unspecified, residual prerogative power. The section 82(1) powers of
the interim Constitution had their origin in
the prerogative powers
exercised under the 1961 and 1983 Constitutions by South African
Heads of State.
44
These powers included the power to confer honours. However, as with
the interim Constitution, which did not preserve the residual
prerogative powers in a catch-all provision and which vested the
President with the former prerogative powers of the Crown,
45
the Constitution makes no express reference to prerogative powers.
The
Constitution, under section 84(2), codifies some of the powers that
were formerly prerogative powers of the Crown. There are
no
compelling purposive or historical reasons why the President’s
powers should be shackled to the prerogative powers.
That would bind
him to the past, rather than allow him to break with it to the
extent necessary under our new democratic dispensation.
It
is noteworthy that the President, in performing the functions as
Head of State, in contrast to those as head of the executive,
acts
alone. This much is clear from the wording of section 84(2).
46
As the Constitution is the primary source of presidential power, the
President may exercise only those powers conferred on him
or her by
the Constitution, or by law that is consistent with the
Constitution.
47
It sets out that when exercising presidential power, the President
does so either as Head of State or head of the national executive.
Any conduct beyond that envisaged by the Constitution will be beyond
his powers and invalid.
The
Supreme Court of Appeal also relied on the report of the panel of
experts that informed and advised the Constitutional Assembly
in the
formulation of the Constitution. The Court remarked:
“
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 section 84(2)(k) of the Constitution must be afforded
its traditional content, which included the
power to appoint silks.
”
48
(Emphasis added.)
It
is well-established that courts need not look to the drafter’s
intention when engaging in constitutional (or statutory)
interpretation.
49
However, as stated above, we must adopt a purposive reading of
section 84(2)(k). When there is documentary evidence regarding
that
purpose, we may, in appropriate circumstances, have regard to such
evidence – the
travaux
préparatoires
.
50
To the extent that the intention of the panel of experts is
relevant, it supports the reasoning set out above.
51
Indeed, as this Court, per Chaskalson P, pointed out in
S v
Makwanyane
:
52
“
Our
Constitution was the product of negotiations conducted at the
Multi-Party Negotiating Process. The final draft adopted by the
forum
of the Multi-Party Negotiating Process was, with few changes, adopted
by Parliament. The Multi-Party Negotiating Process
was advised by
technical committees, and the reports of these committees on the
drafts are the equivalent of the
travaux
préparatoires
relied upon by the international tribunals. Such background material
can provide a context for the interpretation of the Constitution
and,
where it serves that purpose, I can see no reason why such evidence
should be excluded. The precise nature of the evidence,
and the
purpose for which it may be tendered, will determine the weight to be
given to it.”
53
The
Court further remarked:
“
Background
evidence may, however, be useful to show why particular provisions
were or were not included in the Constitution. It
is neither
necessary nor desirable at this stage in the development of our
constitutional law to express any opinion on whether
it might also be
relevant for other purposes, nor to attempt to lay down general
principles governing the admissibility of such
evidence. It is
sufficient to say that
where
the background material is
clear,
is not in dispute, and is relevant to showing why particular
provisions were or were not included in the Constitution, it
can be
taken into account by a Court in interpreting the Constitution
.
These conditions are satisfied in the present case.”
54
(Emphasis added.)
The
President’s section 84(2) powers should also be viewed against
the background of the executive functions set out in
section 83
55
of the Constitution, which acts as a catch-all provision to ensure
that the President has all the power necessary to carry out
the
functions that he or she is given under the Constitution or
legislation.
56
The President, acting as Head of State and head of the national
executive, is duty-bound to uphold the Constitution as the supreme
law of the Republic, to promote the unity of the nation and to
advance the interests of the Republic.
57
The wording of section 84(2) is both permissive and broad, affording
a wide discretion to the President. As the President holds
a
position both as Head of State and as head of the national
executive, he or she has power to confer honours on any
category of
persons. Counsel for the JSA made this point during the hearing, and
I cannot find fault with that line of argument.
The applicant fails
to explain why these permissive powers should be limited in the way
she contends. The contextual setting
of the power to confer silk
thus plays an important role in determining what constitutes an
“honour” in terms of
section 84(2)(k).
Is
silk or SC status an honour?
The
concept of “honours” is linguistically wide enough to
include the award of silk status. A purposive reading of
section
84(2)(k), taken together with the historical context, reaches the
same conclusion. This is so because the award simply
honours its
recipients for attaining a high level of professional skill and
excellence.
58
The
applicant contends that the Supreme Court of Appeal erred in failing
to consider properly the true character of SC status
as a
certification of professional quality, when the Court viewed it as a
form of recognition of the regard in which certain
advocates are
held by their peers. Silk or SC status, she argues, is awarded by
letters patent, which are a classical form of
certification of
professional quality. The characterisation of the conferral of silk
as a certificate of excellence issued by
the President at the
instance of the Bar is without merit.
The
applicant relied on a number of authorities
59
(foreign and domestic) for the proposition that the “granting
of the patent of appointment as senior counsel is not an
honour, no
more than was the granting of the patent of appointment as Queen’s
or King’s Counsel in the past. Technically,
it remains as it
was: an executive act for administrative purposes.”
60
However, this assertion fails to capture the true nature of the
President’s honour-conferring power.
The
conferral of silk may assist in the administration of justice by
aiding in the proper functioning of the legal system.
61
And this Court cannot ignore the reality that applicants for SC
status initiate the process and that some may consider appointment
an important step in their professional advancement. But that is not
all. The respondents emphasise that being appointed silk
serves as
recognition by the President of the esteem in which the recipients
are held “by reason of their integrity and
of their experience
and excellence in advocacy.”
62
The
applicant has not provided sufficient basis for excluding the
conferral of silk from the ambit of the President’s power
under section 84(2)(k). She has not pointed to any features of the
institution that warrant its exclusion from the broad understanding
of “honours” adopted above. The applicant’s
argument that the correct enquiry is not whether the word’s
meaning is wide enough to include a particular practice, but only
whether that practice falls within the word’s ordinary
meaning, misses the point. It cannot be gainsaid, when regard is had
to the literal meaning of the word “honours”,
that the
President’s power to confer honours is wide enough to include
the conferral of silk or the National Orders.
The
applicant relies on the Canadian cases
Lenoir
63
and
Ontario
.
64
As correctly argued by the JSA, the Privy Council in
Ontario
held that the status of QC was both an honour and an office. This
reasoning was consistent with the finding of the Canadian Supreme
Court in
Lenoir
that the appointment of silk amounted to the
conferral of an honour. The applicant contends that the conferral of
silk falls
sufficiently within the definitional scope of a title
pertaining to an “office” – a position, duty or
post
held for professional reasons – to exclude it from being
designated an honour. Her argument is premised on the understanding
that historically there were prerogative powers to confer offices,
a
nd prerogative powers to confer honours.
The
Constitution only codifies the latter, she contends, and does not
therefore empower the President to
confer silk because silk
amounts to an appointment to office. The respondents on the other
hand submit that, properly construed,
one’s appointment as a
silk falls comfortably within the realm of an honour, in the sense
that its conferral amounts to
an appreciation by an advocate’s
peers of his or her forensic skill as well as the esteem in which he
or she is held.
At its best, the applicant’s
case acknowledges the composite nature of the award of silk, and
these authorities simply provide
further support for this finding.
It
is further contended by the applicant that section 84(2)(k) must be
interpreted with due regard to the values of human dignity,
equality
and the rule of law. The applicant argues that a construction
authorising the President to act in a manner inimical
to these
values should be avoided. Notionally, the applicant’s argument
is correct. However she concedes, correctly in
my view, that the
purported right infringing effects of the institution of silk
are not issues with which we are concerned
here.
The
Supreme Court of Appeal was correct in the way it disposed of the
applicant’s reliance on sections 9
65
and 22
66
of the Constitution. It noted that, if silk indeed infringed those
rights, that would be dispositive of the matter and there
would be
no need to enquire into the power of the President to confer the
honour of silk. In any event, the applicant’s
contention
concerning the alleged infringement of the Bill of Rights is an
entirely separate question to whether the President
in fact
possesses such power. Crucially, whether and to what extent the
institution has an effect on rights cannot determine
whether and to
what extent it may properly be regarded as an “honour”.
Conclusion
I
conclude that the President’s power to confer honours in terms
of section 84(2)(k) includes the authority to confer
SC status
or silk on advocates. The appeal must therefore be dismissed.
Order
[39]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
There is no order as to costs.
For
the Applicant: Advocate N Cassim SC, Advocate E Fagan SC and Advocate
M Ramaepadi instructed by Saders Attorneys.
For
the First Respondent: Advocate W van der Linde SC, Advocate I Maleka
SC, Advocate A Stein and Advocate K McLean instructed by
Gildenhuys
Lessing Malatji Inc.
For
the Second Respondent: Advocate W Trengove SC, Advocate A Cockrell
SC, Advocate S Cowen and Advocate M Sikhakhane instructed
by Mkhabela
Huntley Adekeye Inc.
1
General
Council of the Bar and Another v Mansingh and Others
[2013]
ZASCA 9
;
2013 (3) SA 294
(SCA) (Supreme Court of Appeal judgment).
The applicant does not seek leave to appeal against the order of the
Supreme Court
of Appeal insofar as it ordered the President and
Minister of Justice and Constitutional Development to pay the costs
of the
application dismissed by the Supreme Court of Appeal.
2
Mansingh
v President of the Republic of South Africa and Others
[2012]
ZAGPPHC 3;
2012 (3) SA 192
(GNP) (High Court judgment).
3
In
the High Court, the GCB and JSA were cited as the third and fourth
respondents, respectively. The President, Minister, Independent
Association of Advocates of South Africa (IAASA) and the Law Society
of South Africa (LSSA) were cited as the first, second,
fifth and
sixth respondents, respectively. The President and the Minister
abided the decision of the Court on appeal.
4
The
application for leave to appeal directly to this Court was
dismissed, in terms of an order issued on 19 March 2012,
because it was not in the interests of justice for this Court to
hear the matter in light of the pending litigation before the
Supreme Court of Appeal.
5
Section
84 of the Constitution deals with the powers and functions of the
President and provides, in subsection (2)(k), that
“[t]he
President is responsible for conferring honours.”
6
That
is, the internal division of the Bar into senior and junior
advocates.
7
The
applicant was admitted in terms of the
Admission of Advocates Act 74
of 1964
. Advocate Mansingh is also a practising barrister and member
of the Bar of England and Wales.
8
For
a useful analysis of the historical development of the institution
of silk in this country, see the Supreme Court of
Appeal
judgment above n 1 at para 17, where the Court noted:
“
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 . . . prove to be more
narrative in nature than based on real in-depth research.
Yet it
appears . . . that silks were appointed in the Cape from the 1880s,
in Natal from the [1900s] and that by Union of the
former British
colonies in 1910 ‘all four colonies were wedded to the
institution of senior counsel’.”
See also Arnheim “Silk,
Stuff and Nonsense”
(1984) 101
SALJ
376
; Kahn “Silks”
(1974) 91
SALJ
95
at 96-9; and May
The South African
Constitution
3 ed (Juta & Co., Ltd, Cape Town 1955) at
176-9.
9
See
Mohamed and Another v President of the Republic of South Africa
and Others (Society for the Abolition of the Death Penalty in South
Africa and Another Intervening)
[2001] ZACC 18
;
2001 (3) SA 893
(CC);
2001 (7) BCLR 685
(CC) at paras 31-2.
10
Union
of South Africa Act, 1909 (Union Constitution). Kahn notes that from
1910 silks were appointed by the Governor General.
But the source of
the Governor General’s power to do so is a matter of
inference. Section 8 of the Union Constitution provided
that the
executive authority of the Union vested in the King, and was
exercised by His Majesty, in person, or by the Governor
General, as
his representative. The executive powers conferred included the
prerogative powers of the King. I am persuaded by
the finding of the
Supreme Court of Appeal that the Governor General’s power to
appoint senior counsel did not derive from
any South African statute
and that the authority to do so could only have been derived from an
exercise of the royal prerogative
to confer honours. See Kahn above
n 8 and
Sachs v Donges,
N.O.
1950 (2) SA 265
(A) at
308 and
Union Government v Tonkin
1918 AD 533.
11
32
of 1961.
12
Section
7 of the 1961 Constitution provided, in relevant part:
“
(1)
The head of the Republic shall be the State President.
. . .
(3) He shall,
subject to the provisions of this Act, have power—
. . .
(c)
to confer
honours
;
. . .
(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.” (Emphasis added.)
13
Supreme
Court of Appeal judgment above n 1 at paras 21-2.
14
110
of 1983. Section 6 of the 1983 Constitution provided, in relevant
part:
“
(3)
The State President shall, subject to the provisions of this Act,
have power—
. . .
(b)
to confer
honours
;
. . .
(4) 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.
”
(Emphasis added.)
15
The
Constitution of the Republic of South Africa Act 200 of 1993.
16
Section
82(1) of the interim Constitution read:
“
The
President shall be competent to exercise and perform the following
powers and functions, namely—
(a) to assent to, sign and
promulgate Bills duly passed by Parliament;
(b) in the event of a procedural
shortcoming in the legislative process, to refer a Bill passed by
Parliament back for further
consideration by Parliament;
(c) to convene meetings of the
Cabinet;
(d) to refer disputes of a
constitutional nature between parties represented in Parliament or
between organs of state at any level
of government to the
Constitutional Court or other appropriate institution, commission or
body for resolution;
(e) to confer honours;
(f) to appoint, accredit,
receive and recognise ambassadors, plenipotentiaries, diplomatic
representatives and other diplomatic
officers, consuls and consular
officers;
(g) to appoint commissions of
enquiry;
(h) to make such appointments as
may be necessary under powers conferred upon him or her by this
Constitution or any other law;
(i) to negotiate and sign
international agreements;
(j) to proclaim referenda and
plebiscites in terms of this Constitution or an Act of Parliament;
and
(k) to pardon or
reprieve offenders, either unconditionally or subject to such
conditions as he or she may deem fit, and to remit
any fines,
penalties or forfeitures.”
17
In
this regard see
President of the Republic of South Africa and
Another v
Hugo
[1997]
ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at para 8.
The
1983 Constitution made specific mention of some of the powers now
contained in section 84 of the Constitution. These included,
inter
alia, the power to confer honours, pardon and reprieve offenders,
and to enter into and ratify international treaties.
This
codification, completed with the interim Constitution, means that
there is no express reference to prerogative powers and
that those
powers of the President which originated from the royal prerogatives
are to be found in section 84. See
Hugo
at paras 6-7.
18
The
Constitution of the Republic of South Africa
,
1996.
19
High
Court judgment above n 2 at paras 1 and 53.1.
20
Id
at para 17.
21
In
England the rank QC, formerly KC, is awarded to advocates and
attorneys (barristers and solicitors) who have demonstrated
particular skill and expertise in the conduct of advocacy. It has
been awarded in various forms, including the rank of QC
honoris
causa
(meaning “for the sake of honour” or simply
“as an honour”) as opposed to the award of QC status as
a
substantive, professional rank. Honours are awarded to deserving
and high-achieving people from every section of the community,
for
merit, service and bravery.
22
High
Court judgment above n 2 at para 16.
23
Id
at paras 23 and 49.
24
Supreme
Court of Appeal judgment above n 1 at para 4.
25
Id
at paras 27, 30 and 34.
26
Id
at para 10, referring to
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);
2000
(10) BCLR 1079
(CC) at para 24.
27
Id
at para 11, referring to
Johannesburg
Municipality v Gauteng Development Tribunal and Others
[2009]
ZASCA 106
;
2010 (2) SA 554
(SCA) at para 39, which quoted
Jaga
v Dönges, N.O. and Another; Bhana v Dönges, N.O. and
Another
1950
(4) SA 653
(A) at 664G-H.
28
Id
at para 7.
29
Id
at para 30.
30
See
Minister for Justice and Constitutional
Development v Chonco and
Others
[2009] ZACC 25
;
2010 (4) SA 82
(CC);
2010 (2) BCLR 140
(CC) at para 27.
As
this Court stated in
Competition
Commission v Loungefoam (Pty) Ltd and Others
[2012]
ZACC 15
;
2012 (9) BCLR 907
(CC) at para 16, issues concerning the
power and functions of an organ of state are indisputably
constitutional matters.
31
The
application is brought not only in the applicant’s personal
interest or the interests of the group to which she belongs
–
a group of advocates and attorneys opposed to the institution of
silk – but also in the interest of the public
at large.
32
The
factual allegations include arguments regarding presidential
credentials for the exercise of the power, the nature of SC status
(to the extent that it represents professional advancement),
selection criteria, the exercise of the power in the conferral of
silk, the merits and demerits of the practice and the benefits
associated with the conferral.
33
Section
2 of the Constitution.
34
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (4) BCLR 441
(CC) at para
46. See
Minister of Home Affairs and Another v
Fisher and Another
[1979] 3 All ER 21
(PC) at 25H, cited in
S v Zuma and
Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at para 14. See also
Viking
Pony Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty)
Ltd and Another
[2010] ZACC 21
;
2011
(1) SA 327
(CC);
2011 (2) BCLR 207
(CC) at para 32 and Supreme Court
of Appeal judgment above n 1 at para 10.
35
Supreme
Court of Appeal judgment above n 1 at para 29.
36
See
Matatiele Municipality and Others v
President of the Republic of South Africa and Others (No 2)
[2006] ZACC 12
;
2007 (6) SA 477
(CC);
2007
(1) BCLR 47
(CC) at para 37.
37
Supreme
Court of Appeal judgment above n 1 at para 12.
38
New
Shorter Oxford English Dictionary (Clarendon Press, Oxford 2004).
39
The
achievement, she argues, would be one which has benefited the
country at large or is such as to warrant the admiration of
the
country as a whole.
40
The
achievement would typically be one of extraordinary significance,
awarded in circumstances where the recipient has gone beyond
the
call of duty.
41
The
system would be entirely non-mercenary and is not intended to confer
private advantage on the recipient.
42
Ex
Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa
1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) (
First Certification
).
43
Id
at para 116. See also
Hugo
above n 17 at para 13.
44
See
the discussion of South Africa’s constitutional background at
[4]-[5] above.
45
The
former prerogative powers are contained in sections 7(4) and 6(4) of
the 1961 and 1983 Constitutions respectively.
46
While
the President must make the final decision when acting as Head of
State, this Court has held that “it is not inappropriate
for
him or her to act upon the advice of the Cabinet and advisers.”
See
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
[1999] ZACC 11
;
2000 (1)
SA 1
(CC);
1999 (10) BCLR 1059
(CC) at para 41.
47
See
Pharmaceutical Manufacturers Association of SA and Another: In re
Ex parte President of the Republic of South Africa and Others
[2000]
ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at paras 17-20.
48
Supreme
Court of Appeal judgment above n 1 at para 26.
49
See
Natal Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) at paras 17-26.
50
The
“
travaux
préparatoires
”
(preparatory works) constitute the official documents recording the
negotiations, drafting and discussions during the
process of
creating a
legal instrument or constitution.
51
See
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at paras 12-9.
52
Id.
53
Id
at para 17.
54
Id
at para 19.
55
Section
83 provides that the President—
“
(a) is
the Head of State and head of the national executive;
(b) must uphold, defend and
respect the Constitution as the supreme law of the Republic; and
(c) promotes the unity of the
nation and that which will advance the Republic.”
56
See
Murray and Stacey “The President and the National Executive”
in Woolman et al (eds)
Constitutional
Law of South Africa
2 ed (RS 5) at
18-6.
57
Hugo
above n 17 at para 65.
58
Supreme
Court of Appeal judgment above n 1 at para 12. Senior counsel status
or silk, according to the JSA, is to be understood
as a high honour
conferred on an individual by the Head of State. The Bar states that
this dimension of silk is at the heart
of the concept and ought not
in any way to be undervalued. The recommendation by the Bar to the
President is conveyed through
the intermediation of the Judge
President and the Minister. According to the Cape Bar Council’s
Guidelines for Silk Applications
– 2010, the conferral of silk
is recommended only for applicants who are regarded as deserving of
senior status by reason
of their notable and widely recognised
industry, professional competence and advanced ability, as well as
their established reputation
for personal and professional
integrity.
59
See
authorities referred to at n 8 above.
60
Kahn
above n 8 at 104.
61
According
to Kennedy and Schlosberg, writing in 1935, the appointment of
senior counsel amounts to an executive act, which appointment
must
not be regarded as one conferring honour from the Crown. They argue
it amounts to “an executive act concerning the
internal
government of the country, necessary for certain executive purposes,
but what they are it is impossible to say”.
Kennedy and
Schlosberg
The Law and Custom of the South African Constitution
(Oxford University Press, London 1935) at 128. Historically, other
commentators have suggested that the position of QC was, in
principle, the same as that of the Attorney-General (or Director of
Public Prosecutions) to the extent that such advocate held
an office
or position under the Crown. See Author Unknown “Notes”
(1901) 18
SALJ
117
at 117. The Supreme Court of Appeal, too,
noted that the legal profession and its institutions have
traditionally been regarded
as integrally related to the
administration of justice. Supreme Court of Appeal judgment above n
1 at para 31.
62
Supreme
Court of Appeal judgment above n 1 at para 7.
63
Lenoir
v Ritchie
[1879] 3 SCR 575.
64
Attorney-General
for the Dominion of Canada v Attorney-General for the Province of
Ontario
[1898] AC 247
(
Ontario
).
65
Section
9 provides:
“
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2) Equality includes the full
and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative
and other measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may
be taken.
(3) The state may not unfairly
discriminate directly or indirectly against anyone on one or more
grounds, including race, gender,
sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief,
culture, language and
birth.
(4) No person may unfairly
discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3).
National legislation must be
enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or
more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination
is fair.”
66
Section
22 provides:
“
Every
citizen has the right to choose their trade, occupation or
profession freely. The practice of a trade, occupation or profession
may be regulated by law.”