Conferance of Silk Inputs SSASA

  1. [1]Conference of Silk (Senior Council Status) on members of the NPA
      • Although in the past, including since 1998 when the NPA was formally established by an act of parliament, Senior Counsel status were conferred on a number of NPA advocates, all indications are that it grounded to a halt; for no apparent reason, somewhere after 2008/9.
      • The process has always been shrouded in what can best be described as secrecy and as far as I know, no formal process has ever been published.
      • The organised profession of advocates under the various bar counsels follow a specific approach where advocates apply for the conferment of this title. The specific bar counsel of the specific province will then decide on whether such applicant is successful or not. As far as I know the President of the Republic will then confer the status and has almost never, not conferred it on such candidate “approved” by their bar council.
      • Although it is clear that the average period an advocate would be at the bar before applying for silk is somewhere between 10 and 15 years, very many never apply due to purely financial reasons. Such reasons are not applicable to the NPA advocates since there is no monetary incentive to become or not to become a silk.
      • Recently the right of the President to confer silk was successfully attacked in the North Gauteng High Court however on appeal to the SCA, the decision of the North Gauteng High Court was unanimously overturned.
  2. History[2]
    • ..The Attorney-General, Solicitor-General, and King’s Serjeants were King’s Counsel in Ordinary in the Kingdom of England. The first Queen’s Counsel Extraordinary was Sir Francis Bacon, who was given a patent giving him precedence at the Bar in 1597, and formally styled King’s Counsel in 1603.
    • The new rank of Queen’s Counsel contributed to the gradual obsolescence of the formerly more senior serjeant-at-law by superseding it. The Attorney-General and Solicitor-General had similarly succeeded the King’s Serjeants as leaders of the Bar in Tudor times, though not technically senior until 1623 (except for the two senior King’s Serjeants) and 1813 respectively.
    • But the Queen’s Counsel emerged into eminence only in the early 1830s, prior to when they were relatively few in number. It became the standard means to recognise a barrister as a senior member of the profession, and the numbers multiplied accordingly.[4] It became of greater professional importance to become a QC, and the serjeants gradually declined. The QCs inherited the prestige of the serjeants and their priority before the courts. The earliest English law list, published in 1775, lists 165 members of the Bar, of whom 14 were Queen’s Counsel, a proportion of about 8.5%. As of 2010 roughly the same proportion existed, though the number of barristers had increased to about 12,250 in independent practice (i.e., excluding pupil barristers and employed barristers).
    • Restrictions on Queen’s Counsel
      • Queen’s Counsel and serjeants were prohibited, at least from the mid-nineteenth century, from drafting pleadings alone; a junior barrister had to be retained. They were not permitted to appear in court without a junior barrister, and they had to have chambers in London.[4] From the beginning, they were not allowed to appear against the Crown without a special licence, but this was generally given as a formality.
      • This stipulation was particularly important in criminal cases, which are mostly brought in the name of the Crown. The result was that, until 1920 in England and Wales, King’s and Queen’s Counsel had to have a licence to appear in criminal cases for the defence. These restrictions had a number of consequences: they made the taking of “silk” something of a professional risk, because the appointment abolished at a stroke some of the staple work of the junior barrister; they made the use of leading Counsel more expensive, and therefore ensured that they were retained only in more important cases, and they protected the work of the junior bar, which could not be excluded by the retention of leading Counsel. By the end of the twentieth century, however, all of these rules had been abolished one by one. Appointment as QC is now a matter of status and prestige only, with no formal disadvantages.[citation needed]
    • Modern reforms
      • Queen’s Counsel were traditionally selected from barristers, rather than from lawyers in general, because they were counsel appointed to conduct court work on behalf of the Crown. Although the limitations on private instruction were gradually relaxed, QCs continued to be selected from barristers, who had the sole right of audience in the higher courts.
      • The first woman appointed King’s Counsel was Helen Alice Kinnear in Canada in 1934. The first women to be appointed as King’s Counsel in the United Kingdom were Helena Normanton and Rose Heilbron in 1949.
      • In 1994 solicitors of England and Wales became entitled to gain rights of audience in the higher courts, and some 275 were so entitled in 1995. In 1995, these solicitors alone became entitled to apply for appointment as Queen’s Counsel, and the first two solicitors were appointed on 27 March 1997, out of 68 new QCs. These were Arthur Marriott (53), partner of the London office of the American law firm of Wilmer Cutler and Pickering based in Washington, DC, and Dr Lawrence Collins (55), a partner of the City law firm of Herbert Smith. The latter QC was subsequently appointed as a High Court Judge and ultimately Justice of the Supreme Court of the United Kingdom.
      • The appointment of new Queen’s Counsel was suspended in 2003, and it was widely expected that the system would be abolished. However, a vigorous campaign was mounted in defence of the system. Supporters included those who considered it as an independent indication of excellence of value to (especially foreign commercial litigants) who did not have much else to go on,[7][8] and those who contended that it was a means whereby the most able barristers from ethnic minorities could advance and overcome prejudice, as well as better represent members of an increasingly diverse society.
      • The Government’s focus switched from abolition to reform and, in particular, reform of the much-criticised “secret soundings” of judges and other establishment legal figures upon which the old system was based. This was held to be inappropriate and unfair given the size of the modern profession, as well as a possible source of improper Government patronage (since the final recommendations were made by the Lord Chancellor, who is a member of the Government), and discriminatory against part-time workers (especially women) and ethnic minorities.
      • In November 2004, after much public debate in favour of and against retaining the title (see for example Sasha Wass QC), the government announced that appointments of Queen’s Counsel in England would be resumed but that future appointees would be chosen not by the government but by a nine-member panel, chaired by a lay person, to include two barristers, two solicitors, one retired judge and three non-lawyers. Formally, the appointment remains a royal one made on the advice of the Lord Chancellor, but he/she no longer comments on individual applications. The Lord Chancellor supervises the process and reviews the panel’s recommendations in general terms (to be satisfied that the process as operated is fair and efficient).
      • Application forms under the new system were released in July 2005 and the appointment of 175 new Queen’s Counsel was announced on 20 July 2006. A total of 443 people had applied (including 68 women, 24 ethnic minority lawyers and 12 solicitors). Of the 175 appointed, 33 were women, 10 were ethnic minorities, and 4 were solicitors. Six people were also appointed QC honoris causa. On 16 October 2006, a couple of weeks after the beginning of the legal year, the successful candidates made a declaration and received their letters patent from the Lord Chancellor in Westminster Hall.
      • Further appointments were announced on 22 January 2008 and 23 February 2010. The process takes place annually, with the last appointments to date announced on 29 February 2012. Further information can be found at the Queen’s Counsel Appointments website.
  3. Problem Statement.
    • The way this process was dealt with in the NPA in the past and more specifically in the recent past left much to be desired. Advocates in the NPA, specifically those experienced in litigation are as professional as any member of the bar and have always fought to be considered such in the broader legal profession.
    • The situation of a NPA advocate does however differ quite substantially from that of an advocate at the Bar. The NPA have but one client namely the Constitution and the interest of justice, yet that does not make them any lesser professional than the members of the various councils in control of advocates. In all aspects dealing with criminal law NPA advocates, specifically the more experienced ones are as experienced and well trained and as professional as advocates belonging to any bar council.
    • The NPA and the Society for State Advocates should protect this “truth” and make sure that NPA advocates are not in any way seen as second rate citizens of the legal profession.
    • It is therefore necessary to put a procedure in place to deal with the conferment of silk in the NPA on a procedurally fair and transparent manner and to ensure that the quality of those within the NPA on whom silk is conferred is equal if not better than those in the private sector.
    • Although “seniority” is important it is actually “proficiency” that must carry the most weight when consideration is given to an individual. As with applications at the Bar it is also important to look at the general history of the candidate, the cases; both reported and unreported, the candidate was involved in as well as cases done against silks or as juniors to silks. Having appeared in the High Court and the Supreme Court of appeal would be a minimum requirement.
  4. Suggested solution. 
    • As there are no financial implications to consider and the only real requirement is a high level of proficiency, professionalism and experience in litigation the process of “applying” for it should be scrapped completely.
    • To a certain extend applying for something that is considered a great honour and privilege is against human nature and many people; specifically when it brings no financial reward, would never apply as; in their eyes, it may be seen as a very audacious and somewhat narcissistic thing to do. Having said that- no person should be bestowed with this honour against his/her will and the right to decline should always be given to the candidate.
    • When one candidate, that is more proficient and experienced than another, do not apply (for whatever reason), why would that less proficient (but still qualifying candidate) want to apply and risk being seen by his/her peers as being very forward? It is therefore not advisable that the process should be on the basis of an application. The conferment of an honour to my mind is in the present situation better suited by a process initiated by the EXCO in consultation with the various DPP’s and in a transparent and justifiable manner.
    • The first suggestion therefore is that EXCO, on the recommendation of the various offices within the NPA, must on a yearly basis decide who to their mind and in line with prescribed minimum requirements are sufficiently skilled and professionally competent to compete at par with their private sector compatriots who are silks. In this process the EXCO will require the candidate to complete a CV and a short motivation of a standardised form which will make provision for at the very least:
      • Date of admission as advocate,
      • Date of admission into the NPA as advocate,
      • List of reported matters,
      • List of cases done against and /or with Senior Counsel,
      • List of noteworthy cases/appeals done,
    • Upon such decision being reached by the EXCO, the names are then forwarded to a committee of Silks consisting of all silks that are members NPA for a recommendation. If this committee of silks recommends the candidate then the Exco will forward the recommendation to the NDPP to be forwarded to the Ministry of Justice and Constitutional Development, to be provided to the President who will then confer senior counsel status (SC) on those identified individuals.
    • In the case where the committee of silks believe that the candidate should not be conferred with silk, the candidate will be informed of the reasons therefore in writing.
    • As it is supposed to be something not conferred too easily guidelines and/or minimum requirements must be published and or contained in a policy.
  5. Proposed minimum guidelines and requirements.

    • Each year during February (or any time thereafter when they deem it prudent, the EXCO s will consider suitable candidates who comply with the minimum requirements and whose names and curriculum vitae have been forwarded (upon request) to EXCO.
    • The EXCO will require each person so identified to provide then with a short CV containing at the least:
      • Date of admission as advocate,
      • Date of admission into the NPA as advocate,
      • List of reported matters,
      • List of cases done against and /or with Senior Counsel,
      • List of noteworthy cases/appeals done,
    • Only admitted advocates could be considered and also only those involved in litigation in the various courts as a regular feature of their daily job. It is unfortunately something equated to proficiency in court work and one cannot show proficiency therein unless you regularly go to court.
    • Exco will not approve each and every such candidate (that complies with the minimum requirements) each and every year but only a percentage of people for each province taking into account the number of NPA prosecutors/advocates in each such province. (i.e. 10-15% of the total number of advocates in the employ of the NPA in that province)
    • In the process of considering who to “approve” EXCO will look at those of the qualifying candidates that is objectively the best of the crop, taking into account the number of candidates that can be conferred with such status in that given year.
    • If it is the considered decision of EXCO in any particular year that nobody should be approved or a lesser number, that should/would be in order.
    • Minimum requirements should include:
      • Candidates having been admitted as an advocate for at least 15 years.
      • Candidates having been in the full time employment of the NPA in a position of advocate for at least 10 years.
      • Candidates having been involved in regular prosecutions in criminal matters or appeals/ reviews preferably in complex matters. (No requirement that it should only be in the High Court as vary many bar advocates were conferred silk on the basis of a Magistrate Court practice.)
      • Candidates having appeared in the High Court in South Africa previously in trials and/or in appeals and also in at least the Supreme Court of Appeal or the Constitutional Court or at least, in the judgment of EXCO, could be trusted to do so without any reservation. Having prosecuted matters that was defended by silks from the Bar would be an important motivating factor as would be having prosecuted with a silk.
      • No requirement that only a specific NPA rank (State advocate, senior state advocate or Deputy Director) can be conferred but it should be somebody with enough seniority and experience considered by his peers and seniors as a specialist litigant.

Compiled on behalf of the SSASA

Jan Ferreira

Member SSASA

Deputy Director of Public Prosecution

Specialised Commercial Crime Unit: Pretoria

        1. [1] GENERAL COUNCIL OF THE BAR AND ANOTHER v MANSINGH AND OTHERS 2013 (3) SA 294 (SCA)
        2. [2] Wikipedia

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