UPDATE: The Silk Route


Johannesburg Advocate Roshnee Mansingh’s court bid to have the whole Senior Counsel system scrapped was related in “By a thread”, (nose140). Respondents in the case included the President, the General Council of the Bar of South Africa (GCB), and the Law Society of South Africa – a society that is made up of the various provincial law societies as well as those two anachronisms, the Black Lawyers’ Association and the National Association of Democratic Lawyers.

The matter was argued in November in the North Gauteng High Court, Pretoria, before Judge Legodi Phatudi, And on 9 February judgment was handed down in favour of Advocate Mansingh. The court’s decision: “The President has no power in terms of section 84(2)(k) of the Constitution to confer the status of Senior Counsel on practising advocates.”

This means that an age-old legal anachronism is no more. In fact, if the judgment is upheld, it will mean that all presidential appointments of SCs from 27 April 1994 onwards are of no force or effect.

They have traditionally been referred to as “silks”, and juniors as “stuff” – because a senior’s robe was originally made of silk and a junior’s was made of, well, stuff.

So, there, Mr Nose has explained, albeit briefly, what stuff is. Now for the nonsense.

Arguing for the Independent Association of Advocates of South Africa (aka the Rebel Bar), were two of its own members, Adv Carla van Veenendaal and a certain Adv Govender.

The forceful but unpersuasive Van Veendal’s argument was summarised by the judge, himself a former attorney from Polokwane, and he clearly wasn’t intimidated by her reasoning: “Counsel submits that the institution of “Senior Counsel” should be retained because Senior Counsel “intimidates” judges when advancing arguments in court.  She persists with her usage of the word instead of “persuades”. 

Do practising advocates really apply for the status of Senior Counsel for the purpose of intimidating judges?  Do judges-president and the Minister of Justice and Constitutional Development really recommend the President appoint Senior Counsel to intimidate judges?”

Maybe not, but their briefing (paying) clients often do have just that in mind. London barrister Jonathan Sumption QC, who is ranked among the UK’s top silks and has been described as “the cleverest man in England with “a brain the size of a planet”, had the following  to say about the “judicial intimidation” factor during a Five Minutes interview with the BBC’s Matt Stadlen:

MS: Do you think that judges are intimidated by you?

JS: No.

MS: Why not?

JS: Why should they be? I am only trying to help them.

Ouch! – but there you are, then!  Mr Nose has personally observed cowering judges whimpering their “deep appreciation” for the beating, or “admirable guidance” they have received from arrogantly confident senior counsel.

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