The reference to silk derives from the fabric of the gowns traditionally worn by senior counsel (This judgment is now reported as Mansingh v The President of the Republic of South Africa.). Adv Mansingh succeeded in the first round in the High Court and an order was granted in her favour that the Constitution does not include the power of the president to confer the status of senior counsel on practising advocates.
Had this judgment gone unchallenged, no new Silks would have been appointed at any of the societies of advocates throughout the country. It is then not surprising that no less than four senior counsel were involved in the appeal which was argued before the Supreme Court of Appeal on 18 February 2013.
In the judgment of the Supreme Court of Appeal it is recorded that the applicant made it clear in her founding affidavit that, as a matter of principle, and for considerations of policy, she is opposed to the institution of senior counsel or silk and that in consequence she actively sought its abolition. She supported these contentions by arguing that practising advocates who apply for Silk, but who are unsuccessful in their applications (she had applied but was unsuccessful), "suffer real disadvantage in their practices and great distress." In her mind, it was a bad thing.
The judgment handed down by the five appeal judges makes for interesting reading. The judgment quotes a formulation of Lord Watson in Canada in 1898 that the position occupied by Queen's Counsel "... is a mark and recognition by the Sovereign of the professional eminence of the counsel upon whom it is conferred." The terminology of Senior Counsel replaced that of Queens Counsel when South Africa left the Commonwealth, but there remains one or two practising Queens Counsel in practice.
The question repeatedly asked is how is a senior counsel appointed? The various constituent Bars of the General Counsel of Bars of South Africa have their own procedure, but they all have certain elements that are common.
The process starts with an application for an appointment by the candidate for Silk to his or her bar. A committee of Silks of that particular bar then consider the candidates application. Only the names of the approved candidates are then presented to the judge president of that particular high court who in turn makes a recommendation to the minister of justice. The minister of justice in turn makes a recommendation to the president who then confers the status of Silk on the approved candidates.
The Supreme Court of Appeal, by upholding the appeal, reached the conclusion that the president has the authority to confer the status of senior counsel on practising advocates. In the words of the president himself, "I regard silk as an honour."
