By Greg Palmer and Duncan Wild on 28 November 2013.

The case concerns whether the President’s power to confer ‘honours’ under section 84(2)(k) of the Constitution includes the power to award ‘senior counsel’ or ‘silk’ status to advocates.

The appellant, Ms Mansingh, is a practising advocate and a member of the Johannesburg Society of Advocates (“the JSA“).  Ms Mansingh successfully sought a declaratory order in the North Gauteng High Court to the effect that section 84(2)(k) of the Constitution does not authorise the President to award ‘senior counsel’ status to advocates.

The General Council of the Bar (“the GCB“) (an affiliation of the ten Societies of Advocates in the country) and the JSA appealed to the Supreme Court of Appeal (“the SCA“).

Section 84(2)(k) of the Constitution provides as follows:

“Powers and functions of the President:

(1) The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive.

(2) The President is responsible for –

. . .

(k) conferring honours.”

The JSA and the GCB took the matter on appeal to the SCA, and the SCA concluded that the power to confer honours bestowed upon the President by section 84(2)(k) of the Constitution included the authority to confer the status of ‘senior counsel’ on practising advocates.

The Constitutional Court, in an unanimous judgment authored by Justice Nkabinde, and in which Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Skweyiya J, Van der Westhuizen J and Zondo J concurred, also found that the power of conferring honours was sufficiently broad to include the power conferring senior counsel status, and so dismissed the application.

Ms Mansingh had argued that although the President awards the status of ‘senior counsel’, he is not in a position to make a merit-based judgment on the appropriateness or otherwise of a candidate and merely confirms the assessment made by the GCB’s constituent bars.  In responding to this point, the SCA found that ‘the appointment of silk amounts to a recognition by the President of the esteem in which the recipients are held by their peers.’

The Constitutional Court turned to consider the historical context of the institution of silk. The institution of senior counsel is part of our heritage as a former British colony. It arose in Britain as part of the prerogative power of the monarch to confer honours. Although once indicative of someone who was obliged to give legal advice to the Crown, it developed into a bestowal of rank on a person rather than an engagement of services, considered under the concept of “honours prerogative” in English law received into South African law under the Union Constitution of 1910.

The powers of the President are contained in section 84 of the Constitution, and section 84(2)(k) includes the “conferring of honours”.  The Constitutional Court adopted an “interpretative 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.” The Court noted that the textual meaning of the word “honours” is wide, including “something conferred or done as a token of respect or distinction; a mark or manifestation of hight regard” and “especially a position or title of rank, a degree of nobility, a dignity”. This definition is wide enough to include the conferral of senior counsel status.

In addition, considering the context, the conferral of silk status had fallen under the conferral of honours powers of the head of state.

The Constitutional Court held that “[t]he 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 understating of ‘honours’ adopted above”.

Ms Mansingh’s affidavit had addressed the economic disadvantages and distress suffered by disappointed applicants for senior counsel status, stating that the section should not be interpreted to authorise the President to act in a manner contrary to the value of human, dignity, equality and the rule of law enshrined in the Constitution.The Constitutional Court noted that whether the institution of silk infringed the rights conferred in the Constitution that would be dispositive, but that this was an entirely separate question as to whether the President possesses the power the question. The Constitutional Court noted that the applicant had conceded, correctly, that the purported right-infringing effects of the institution of silk were not issues with the Constitutional Court was concerned in this case.

The appeal was therefore dismissed.

Download the judgment here.