General Council of the Bar v Mansingh

Ms Urmilla Mansingh, a practising advocate and member of the Johannesburg Society of Advocates, brought an application in the North Gauteng High Court seeking a declaration that s 84(2)(k) of the Constitution does not authorize the President to confer the status of senior counsel (silk/SC) on practising advocates. She cited as respondents the President, the Minister of Justice, the General Council of the Bar (GCB), the Johannesburg Society of Advocates (JSA), the Independent Association of Advocates of South Africa (IAASA), and the Law Society of South Africa. All respondents except the Law Society opposed the application. The court a quo (Phatudi J) granted the declarator sought and awarded costs against the President and Minister. The GCB and JSA appealed with leave of the court a quo. The appointment procedure involved applications to the Bar, review by a committee of silks, recommendation to the Judge President, then to the Minister, and finally conferral by the President. Historically, silks were appointed in South Africa from the 1880s, initially by the Governor General and later by the State President.

• Whether s 84(2)(k) of the Constitution, which confers on the President the power to 'confer honours', includes the authority to appoint senior counsel
• What is the proper method of interpreting s 84(2)(k) in its historical and contextual framework
• Whether the historical royal prerogative to appoint Queen's Counsel/senior counsel was preserved and codified in the Constitution's honour-conferring power
• Whether the institution of silk infringes constitutional rights to equality (s 9) or freedom to choose profession (s 22)

The appeal was upheld. The order of the court a quo was set aside and replaced with: 'The application is dismissed. First and second respondents [President and Minister] are ordered to pay the applicant's costs.' The costs order against the President and Minister in the court a quo was preserved as they did not appeal. No costs were awarded for the appeal as none of the parties sought costs on appeal.

The power to 'confer honours' in s 84(2)(k) of the Constitution must be interpreted purposively in its historical context. The appointment of Queen's Counsel/senior counsel was historically an exercise of the royal prerogative to confer honours in England and South Africa. This prerogative power was preserved through successive South African constitutions and was codified in s 84(2)(k) of the 1996 Constitution. The term 'honours' bears a meaning wide enough to include the conferral of silk, which constitutes public recognition by the President of professional eminence. The historical perspective supports this interpretation, and there is nothing in the broader constitutional context that compels a different meaning. The Constitution's break with the past relates to unacceptable features, not to all historical practices - where the language used indicates intent to preserve past practices, that intent should be given effect. The power to confer honours under s 84(2)(k) therefore includes the authority to appoint senior counsel to practising advocates.

The Court observed that policy questions about whether the institution of silk is 'a good thing or a bad thing' or whether it should be abolished or retained are not matters for judicial determination when the question is simply whether the constitutional power exists. Questions about the fairness and transparency of appointment procedures, while subjects of ongoing debate, were not germane to the case. The Court noted that if there were found to be a need for appointment of senior attorneys or other professionals, consideration would have to be given to whether this could be brought under s 84(2)(k) despite lacking historical support, or whether special legislation would be required. The Court emphasized that the historical distinction regarding silks probably arises because the legal profession and its institutions have traditionally been regarded as integrally related to the administration of justice, which is properly the concern of the head of State. Regarding alleged infringement of constitutional rights (ss 9 and 22), the Court commented that if the institution of silk itself infringes these rights, the whole institution would be unconstitutional regardless of the President's power to confer it, and such challenges would need proper factual foundation. Any objections should be directed against practices not inherent in the honour itself, rather than the institution of silk as such.

This case definitively establishes that the President's constitutional power to confer honours under s 84(2)(k) includes the authority to appoint senior counsel (silks). It provides important guidance on constitutional interpretation, particularly regarding how historical context and the evolution of constitutional provisions inform their meaning. The judgment clarifies that the codification of former royal prerogative powers in the Constitution was intended to preserve those powers compatible with the constitutional order, subject to constitutional control, rather than to abolish them. It demonstrates that while the Constitution breaks with the unacceptable features of the past, it does not jettison all historical practices - the language used may indicate intent to preserve certain traditions. The case also addresses the institutional relationship between the legal profession and the State, recognizing the historical connection between the administration of justice and the head of State. It has practical significance for the continued existence and legitimacy of the senior counsel designation in South African legal practice.