Senior advocates must be relieved. On Thursday the Constitutional Court confirmed that the president indeed had the power to confer silk status – also known as the status of Senior Counsel (SC) – on advocates. This means that the status of SC – which enhances the earning potential as well as the social and professional status of an advocate – will remain, as will the high cost associated with hiring the services of one of these select group of lawyers.
When Urmilla Roshnee Devi Mansingh’s application to be conferred with SC status was unsuccessful, she decided not to take this rejection by her peers lying down. Taking on the long established practice of conferring silk status on a select group of advocates, she must have realised that she was challenging the entire legal establishment and that she was not likely to succeed. It may even have come as a surprise to her when the High Court declared that section 84(2)(k) of the Constitution does not authorise the President to confer the status of senior counsel on advocates.
But this decision of the High Court was reversed on appeal by the Supreme Court of Appeal (SCA), a decision which was confirmed on Thursday by the Constitutional Court. Although the legal challenge may have been motivated by the view that the conferral of silk status on a select group of advocates was not easily squared with the egalitarian ethos of our constitutional democracy, the case was not decided on the basis of whether the institution of silk or SC status is good or bad, or whether it is worthy of protection. Nor was the case decided on the basis of the merits of Ms Mansingh’s own unsuccessful applications for SC status.
Instead, the court only had to decide whether section 84 of the Constitution bestowed the power on the President to confer the status of SC on those advocates selected for it by their peers at the Bar. Section 84 of the Constitution states in 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.”
Aspects of section 84 of the Constitution have its origins in English constitutional law. This reminds us that the our colonial past still haunts us and shines through in the most surprising places – including in section 84 of the Constitution.
Before 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. These prerogatives powers had their origins in English law, which bestowed certain prerogative powers on the English monarch.
Similar powers have been and still are exercised (by heads of state or the executive in his or her name) in many countries that form part of the Commonwealth as well as many outside it. In South Africa, prior to 1993, some, but not all, of those powers had been codified in earlier constitutions. Those that remained non-statutory were dealt with by reference to the exercise of the prerogative by the English monarch.
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 of 1910. The Head of State possessed both a codified honour-conferring power and an unspecified, residual prerogative power similar to that held by the English monarch.
This all changed in 1994 when some of the prerogative powers were codified in section 82 of the interim Constitution and, later, in section 84 of the final Constitution. In President of the RSA v Hugo the Constitutional Court found that the fact that our constitution was now supreme meant that there are no longer any powers derived from the royal prerogative which are conferred upon the President other than those enumerated specifically in the Constitution.
In Mansingh v General Council of the Bar and Others the Constitutional Court (in a unanimous judgment penned by Justice Nkabinde) had to interpret the scope of section 84(2)9k) of the Constitution to determine whether the conferral of silk status on advocates was constitutionally valid. In effect, the court had to decide, in the light of the historical origins of the section 84(2)(k) powers as a prerogative power of the monarch, whether the phrase “conferring honours” was broad enough to encompass the traditional practice of bestowing silk status on selected members of the advocates’ profession.
The Court applied the well known interpretive approach that, while having due regard to the language of the constitutional text and the context within which the interpretation happens, is “generous and purposive and gives expression to the underlying values of the Constitution”. The Court agreed that when adopting the purposive and contextual approaches, courts are constrained by the plain language used in the section, but must also have regard to the constitutional context preceding the enactment of the provision in question.
Ms Mansingh had argued that the conferral of silk status did not fall within the ambit of section 84(2)(k) as this power must be viewed as no more than the power to bestow National Orders – like the Order of the Baobab – on individual citizens. She contended that since the institution of silk does not share the same characteristics as other Orders bestowed on citizens by the President, it is not an “honour” in the meaning of section 84(2)(k).
The court disagreed, pointing out that the textual meaning of the word “honours” is capable of a very wide meaning. It is interesting to note that the Court came to this view, partly by referring to the original intentions of the drafters of the Constitution. The Constitutional Court seldom refers to the original intentions of the drafters of the Constitution – perhaps because the “original intent” theory of constitutional interpretation is so thoroughly discredited and is associated with right wing judges such as Antonin Scalia of the US Supreme Court.
However, in this judgment it thus endorsed the SCA interpretation of the section that relied heavily on the preparatory drafting documents. These documents indicated what the intentions of the constitutional drafters were when they included various subsections into section 84 of the Constitution.
“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 the 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.”
Ms Mansingh also argued that the true character of SC status was a certification of professional quality – not a mere “honour” as envisaged by the Constitution. Silk or SC status, she argued, is awarded by letters patent, which are a classical form of certification of professional quality. In other words, she argued that the conferral of silk status was more like bestowing a professional qualification or certification of quality on an advocate, one with profound financial and professional implications that go far beyond the conferral of a symbolic “honour” as allowed by the Constitution.
The Constitutional Court rejected this argument, stating that:
“The conferral of silk may assist in the administration of justice by aiding in the proper functioning of the legal system. 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.”
In other words, the Constitutional Court said that the conferral of silk has different consequences and different functions and at least one of those happens to fall within the ambit of conferring honours as authorised by section 84(2(k). The Court argued that Ms Mansingh has not “pointed to any features of the institution that warrant its exclusion from the broad understanding of “honours”.”
While reading the judgment I wondered about the fact that the long-held traditions of conferring silk status on some selected advocates is a tradition inherited from the colonial era. Yet, this tradition seems to be widely accepted and even revered by many members of the legal profession – also members who would otherwise be more progressive and anti-colonial in their politics. While the judgment dealt with the narrow constitutional issue regarding the powers of the President, I wonder whether we will ever get to a point where a sizable group of advocates would begin to question this tradition of conferring silk on advocates, a tradition with a decidedly colonial history. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.