The Minister of Justice and Correctional Services, Ronald Lamola, has published guidelines regarding the conferral of Senior Attorney and Senior Counsel honours for eligible legal practitioners.
The guidelines made it clear that regard must be given to the racial and gender composition of the legal fraternity in the country.
In the past, the granting of silk – senior status to advocates – was viewed as an exercise of the "honours prerogative" based on English law, which was adopted into South African law through the Union Constitution of 1910.
The Senior Counsel system has evolved from the British tradition of Queen's Counsel to the present-day Senior Counsel tradition, which has become an integral part of South Africa's legal heritage.
The minister said it is crucial to streamline and transform the Senior Counsel system. This includes rectifying racial and gender biases that have resulted in the exclusion and marginalisation of previously disadvantaged practitioners from equal participation in the system.
Additionally, efforts must be made to counteract the emerging trend of Senior Counsel honours becoming more focused on self-interest rather than their original purpose of contributing to the development of jurisprudence and the legal profession.
The guidelines were officially published by the minister after receiving approval from President Cyril Ramaphosa, consulting with legal professionals and considering feedback from the Legal Practice Council.
These guidelines aim to address historical racial and gender biases that have led to the exclusion and marginalisation of previously disadvantaged practitioners from equal participation.
Lamola said the evolution of the legal practice within the nation involves a constant reassessment of past injustices.
“The colonial system of designating senior advocates as Senior Counsel, which was at times arbitrary and discriminatory, lacked a fair and just criteria. As a result, the status of Senior Counsel was often sought and granted without proper regard for transforming the legal profession,” he said.
A senior counsel honour is an honour conferred on a legal practitioner by the president and, each year, only reserved for those said to be the cream of the crop. Names are forwarded to the president by the various Bar Councils, who then bestow this honour on a chosen few.
The minister said there may be more suitable candidates in any given year that can be considered and that when deciding on the recommendations, due regard must be taken regarding the racial and gender composition and the demographics of the country.
“Consideration will be given to the reality of race-based and gender-based bias or skewing of briefing patterns of instructions given to attorneys and briefing patterns of advocates, which may tend to result in the exclusion of an otherwise worthy black female candidate from strong representation in certain areas of practice,” the minister said.
Setting out the guidelines, the minister said due regard will be given to the experience, expertise and pre-eminence of a candidate in a specialised area of practice. Weight will also be given to the record of service of the candidate to the legal profession, and the community at large, including their commitment to pro bono (free of charge) work .
“In recognition of the fact that the best interests of the legal profession and of the administration of justice are served by a diverse leadership, considerations of race and gender will be taken into account in the selection of the candidates for recommendation,” the minister said.
Pretoria News