Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”
It is often the case that the provisions of a Constitution are drafted in response to a particular set of political, social and economic circumstances. Thus, some post-independence Constitutions contain provisions that specifically respond to the colonial experience and are aimed at eradication objectionable colonial-era practices or the effects of such practices.
For example, in response to the British class system imposed on India during colonial rule and as a symbol of the Constitution’s egalitarian ambitions, section 19 of the Indian Constitution (in its Bill of Rights) prohibits the Indian state from conferring titles – except for military and academic titles – on any citizen. It also prohibits Indian citizens from accepting any title from any foreign State.
South Africa’s Constitution did not go as far as the Indian Constitution and, in this small respect, is less egalitarian than its Indian cousin. Although our Constitutional Court has found (in the Hugo case) that the Constitution had abolished the notion of Royal prerogative powers (which was inherited from the British constitutional system and used to be exercised by the State President), our Constitution does contain a set of codified powers entrusted to the President by section 84(2) of the Constitution. Many of these powers are similar to the prerogative powers previously held by the State President before 1994. However, in our constitutional dispensation there are no powers derived from the Royal prerogative which are conferred upon the President other than those enumerated in section 84(2) of the Constitution.
Section 84(2)(k) of the Constitution states the President is empowered to “confer honours” on those deserving of it. Our Constitution therefore allows the President to confer honours (like the Order of the Baobab or the Order of Luthuli) on individuals who have rendered exceptional services beyond the ordinary call of duty in a particular field or to the nation as a whole.
Last week, in the case of Mansingh v President of the RSA, the North Gauteng High Court in a judgment authored by Phatudi J, had to decide whether this section authorised the President to confer the title of Senior Counsel (also popularly known as SC or Silk) on practicing advocates. This power to confer the status of silk on advocates used to form part of the Royal prerogative powers of the head of state. Members of the Bar must apply for this “honour” and their silk status is reliant on the Bar Council approving their application. Once they become silks they can charge higher fees for their services and, so it is argued, they also obtain a higher status among their colleagues.
The crisp legal question that had to be answered in this case was whether the provision in section 84(2)(k) of the Constitution empowered the President to confer silk status on “deserving” advocates.
But behind this legal question lies a policy question with profound political implications, namely whether it is advisable to retain a system of honours for advocates that might exclude many women and black South Africans from achieving the same professional status as the most exulted members of the Bar.
Bear in mind that members of the advocates’ profession themselves, in effect, select those advocates to be “honoured” with the status of Senior Counsel in accordance with rather vague criteria. Does this system in essence play a gatekeeper role? How many women and how many black South Africans have been “selected” to be “honoured” in this manner and which criteria were used to select them? Is it still tenable in a constitutional democracy to perpetuate a system of honours which harks back to our colonial past? Should we not rather follow the Indian example and abolish all these kinds of honours bestowed on a select group of people to bring our practices in line with the egalitarian spirit of the Constitution?
The judgment did not engage with these policy questions but focused on the meaning of section 84(2)(k). The applicant argued that the phrase “conferring honours” under section 84(2)(k) of the Constitution could not include the conferring of silk status on some advocates because it in effect resulted in the bestowing of a privilege on some people who did not earn it. Secondly, she argued for a narrow interpretation of honours to include honours for which one cannot apply but is bestowed on one by the President entirely based on a discretion exercised by him.
The court looked at the application procedure used by the Johannesburg Bar Council and noted that candidates are invited to apply for silk. The applicant must discuss his/her proposed application informally with the Leader of the Bar. 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. If the Judge President approves of the application(s). He forwards the recommendation to the Minister of Justice and to the President who then formalises the appointment as silk.
As Phatudi J remarked, this process looks very different from the process followed with the conferring of normal honours like the Order of Luthuli or the Order of the Baobab:
Given these facts Phatudi J agreed with the applicant that there was a difference between a conferral of honours such as the Order of the Baobab (for which one cannot apply) and the conferring of the status of silk. 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.
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?
If one assumes that an advocate has acted above and beyond the ordinary call of duty because he or she has charged very high fees to clients and represented them well in court, then the President might be viewed as having the constitutional authority to confer this honour of silk on them. If, however, one believes that advocates have merely done what others have done, namely to make a living as well as they could while raking in the money, then the Constitution may well be viewed as not conferring this power on the President.
Given the fact that unlike the Indian Constitution, our Constitution does not prohibit a citizen from being awarded a special title, the President might well have had the power to confer silk status on advocates if this power had been granted to him in terms of other legislation. However, 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’.
The judgment will now have to be confirmed by the Constitutional Court before it has any legal effect as it deals with an act of the President. If that court confirms the judgment, legislation may well be passed to allow the President to continue to confer this status on advocates. Such legislation might well have to contain more detailed and precise criteria for the conferral of this status to subject this practice to the disciplining power of the constitution which is supposed to establish a culture of justification – also in the legal profession.
But ironically, if the Constitutional Court confirms this judgment and no legislation is passed to allow for the continued conferral of the status of silk on advocates, those advocates who were made silk before 1994 would retain their status while those who were made silk after 1994 would lose their status. This would mean that those who obtained status of silk before 1994 would probably become even more sought after and they would be able to charge even higher fees than they currently do. Whatever happens, this judgment represents the start of the conversation about the conferral of professional titles on lawyers – not the end of that conversation.BACK TO TOP