Editor Volume 32, number 3 • December 2019 Franny Rabkin [email protected] Editorial committee Frank Snyckers SC (chair) advocateIphephabhuku labameli basemajajini baseNingizimu Afrika Mushahida Adhikari Johan Brand SC Dzhenala ya dzangano la vhaadivokati vha Afrika Tshipembe Mark Euijen SC Die Suid-Afrikaanse Balietydskrif • The South African Bar Journal Marilena Maddison Kgatisobaka ya boadfokata ya Africa-Borwa Sandhya Mahabeer SC Jenali ya magwetha ya vaavanyisi van Afrika-Dzonga Jean Meiring Lwandile Sisilana Thandisa Tyuthuza Craig Watt-Pringle SC (ex officio – GCB chair) FROM THE EDITOR BAR REPRESENTATIVES once read (on the pages of this very publication, many years Cape: Patrick Mackenzie before I became its editor) an article by Judge Owen Rogers, then Free State: Jacyn Mitchley I Grahamstown: Thomas Miller Rogers SC, about why we should do away with the institution of silk. Johannesburg: Kutlwano Motla It was so well argued that, by the end, I was utterly and KwaZulu-Natal: Carol Sibiya, Sarah Pudifin-Jones and Nooreen Nursoo completely convinced that silk should go. Yet I also knew, utterly Namibia: Esi Chase and completely, that if I were ever to come to bar, I would really, Northern Cape: Albert Eillert really want silk. North West: John Stander Polokwane: Nathi Gaisa I have thought about this a few times over the years, mostly because every Port Elizabeth: Morné Olivier time Rogers J has come before the Judicial Service Commission, he has been Pretoria: John Holland-Müter Mthatha: Vusi Msiwa grilled, sometimes unfairly and a bit aggressively, about his views on this score – invariably by one or other of the silks sitting on the commission at the time. EDITORIAL INFORMATION Advocate is the journal of the In the face of Rogers’ devastating logic, I saw a tendency on the part of some General Council of the Bar (GCB). esteemed senior counsel to get a bit grumpy. Except in the case of official press For me, it is of course a hypothetical dilemma. But my conclusion is that, releases or statements, published as such, the views expressed by sometimes, the things we want are not always rational. It’s just a really, very individual contributors of articles and lovely thing to be honoured by your peers – by those who know your work and items in Advocate do not purport to be the views of the editorial your personal qualities intimately. What could be nicer than the people whose committee of Advocate, or the official work you admire and rate the most, admiring and rating you back? views of the GCB, but remain the The chairman’s contribution in this edition looks at the institution of silk. With views of the individual contributors. This applies also to the views the Legal Practice Act, the way silk is conferred could be changing. Having expressed by the editor in her reported this profession as a journalist for many years, I know there are concerns contributions. about how silk is awarded. Some are very valid, I think. But I hope that, when Correspondence and enquiries the “engagement” between the GCB and LPC is done, what will remain is a relating to contents, contributions and advertising: system that addresses these criticisms but also keeps the peer review aspect The Editor, Advocate, of the conferral of silk. Because my suspicion is that, without that part, it won’t PO Box 786878, mean as much to the people who get it. SANDTON 2146 082 927 5536 The Legal Practice Act and the continued importance of the Bar form the Fax: +27 (011) 784 0182 subject of the speech given by retired President of the Supreme Court of Appeal, [email protected] Lex Mpati, who was this year’s recipient of the GCB’s Sydney and Felicia Street address: Sandown Village, Kentridge Award. His speech is a thoughtful and thought-provoking look at why 2nd Floor, Duma Nokwe West 86 Maude Street, the bar matters – not just for its members but for the administration of justice in SANDTON 2146 South Africa. Subscriptions We have also published the speech given by Patric Mtshaulana SC when he Annual subscriptions R360 (VAT incl.) was honoured by the Johannesburg Bar at its annual bar dinner. He has also Advocate, PO Box 786878, been given honorary membership and, when one reads his speech, one sees SANDTON 2146 Tel: +27 (011) 784 0175 why he is so admired, loved even, by so many of his colleagues. In particular, Fax: +27 (011) 784 0182 he addresses those frustrated with the pace of transformation at the bar, giving E-mail: [email protected] hope and encouragement. Website: http://www.sabar.co.za We also have a really fascinating interview with another of my favourites, Design by HOND CC Johannesburg Deputy Judge President Phineas Mojapelo. Printed by Hansa Print So – not by design but still happily – this edition pays tribute to some of our ISSN 1683-2566 best elders. © General Council of the Bar Speaking of which, we have lost to retirement a member of our editorial of South Africa committee, Johan Brand SC. We wish him all the best in his retirement. And, from me, a special thank you for his very warm support when I was appointed editor. A The editor contributes to Advocate as an autonomous author. The views she expresses are entirely her own, and do not purport to represent any view or position of Advocate or of the GCB. advocate in this issue: 3 Chair’s contribution The future of silk 7 GCB & National News 7 GCB Media Statement 8 Tribute to Justice Lex Mpati 10 Address by Justice Lex Mpati 14 Bar News 14 Port Elizabeth Bar 17 Cape Bar 21 Free State Bar 22 Johannesburg Bar 34 KwaZulu-Natal Bar 40 Grahamstown Bar 41 Polokwane Bar 44 Pretoria Bar 48 Forum: Interview with Johannesburg Deputy Judge President Phineas Mojapelo 58 Forum: Elites at odds over statism by Henri Benade 60 Forum: Weighing evidence by M.A. Muller PhD 62 Forum: Litigious linguists by Quentin du Plessis 64 Reflections on litigations by Jeremy Johnson 65 Law Matters by Franny Rabkin 67 Legal Crossword • Number 39 68 Fly on the Wall Mr Tin chair’s contribution THE FUTURE OF SILK Renata Larroyd Craig Watt-Pringle SC, chair, General Council of the Bar of South Africa (1865) ntil a few years before Consequently, members UI joined the bar in thought long and hard before 1987, silks were bound by applying for silk and only did a number of rules which so after consulting trusted arguably served as a proxy colleagues and possibly one or for the silk selection process two of their regular briefing that we have today. One was attorneys, in order to gauge that as a rule silks were not whether they were viewed permitted to appear without as “ready” for senior status. juniors. Another was that Sounding out attorneys The Grand Staircase of the Palace Justice juniors almost invariably would have been both charged a fee equivalent to difficult and often unreliable. two thirds of the silk’s fee. I Directly asking an attorney use the terms “fee” and not whether he (yes, usually “he” “rate” advisedly. Fees were at the time) would still brief Honoré_Daumier not generally calculated by you, with a junior, if you took multiplying hours spent by silk, would amount to touting counsel’s rate per hour, save in respect of consultations. and so the issue would have to be raised tangentially. Letting For example, after settling particulars of claim, the silk and some attorneys know that you were “thinking” of applying for junior would agree on a fee considered appropriate to the task, silk would usually have elicited a response of some kind, but not taking various criteria into account. invariably a sincere reaction. The trick was to read the reaction One of the implications of these rules was that a senior junior accurately. who contemplated applying for taking silk had to be confident The compulsory junior and two thirds rules provided a that he (almost invariably a “he” in those days) could command natural filter to keep chancers from applying for silk. Those who the higher fees that silks charge, plus the additional cost of a were not silk material would usually not apply, for fear of failure. junior, thus in effect adding 66% to his fee, which was paid to the Some miscalculated and paid a severe price. As an articled clerk junior. A high degree of confidence in one’s ability to command (candidate attorney) I was told of a senior attorney who was said both higher fees and the cost of a junior was required, because if to have been a former member of the bar with a thriving senior he took silk and then discovered that he was unable to sustain a junior practice, until he took silk. He had to leave the bar to silk’s practice, it was tantamount to professional suicide. make a living. Advocate December 2019 3 chair’s contribution The future of silk “If a colleague had done particularly well in court, this would be discussed in the common room. Another who may have been found wanting by an irate judge, would also become a topic of conversation.” Honoré Daumier Two Lawyers Conversing (ca 1860) A former chairman of the Johannesburg Bar tells me that The significant growth of the bars has resulted in the larger when this bar was still housed in a single building in downtown bars in particular having to adopt formal, detailed procedures Johannesburg, applications for silk were made to the chairman for the silk selection process. It remains an open question as to of the Bar Council.