Africa Leaders Magazine

JUSTICE ISMAIL MAHOMED: First black Chief Justice of South Africa, iconic and distinguished jurist

On 1 January 1997 Justice Ismail Mahomed became the seventeenth Chief Justice of our country. He succeeded Chief Justice Michael Corbett, and was the first black to be so appointed because of our country’s peculiar past. But Justice Mahomed’s appointment was more than that. It was a special and deliberate choice of a man whose entire life had been about his deep commitment to justice.

So, in October 1996, when it fell upon the first president of democratic South Africa to appoint the first post-democratic Chief Justice, Justice Ismail Mahomed was President Nelson Mandela’s incontestable first choice for ushering in the new constitutional dispensation from atop the judiciary. It marked a clear break from the past and was especially significant because the public perception of the role of judges in the new dispensation largely depended on the Chief Justice’s leadership.

JUSTICE ISMAIL MAHOMED: First black Chief Justice of South Africa, iconic and distinguished jurist - African Leaders Magazine

That period was a pivotal and important time in the history our nation. It was at the turn of our legal and constitutional order when we abandoned the Westminster system of parliamentary sovereignty where racially oppressive laws enacted by a racially exclusive parliament had to be applied unquestionably by the courts; preferring in its stead, our current system of constitutional supremacy in which the Constitution became the supreme law of the land to which all law and conduct, including that of the President, has to adhere in letter and spirit to it at the pain of being declared invalid (s 2 of the Constitution of the RSA, 1996),[1] and entrenching a Bill of Rights which thence forth informed all interpretation and development of our law (s 39(2) of the Constitution).[2] This meant that courts began to play a very crucial role for it was to the courts that this new system bestowed constitutional guardianship. So, because of Justice Mahomed’s extraordinary and exemplary life, he was our shoo-in Chief Justice on merit over and above demographic considerations of transformation of the judiciary. That much is clear from the many tributes that were given in honour of his appointment and those which were subsequently given in honour of his memory.

In a tribute to his life, L A Rose-Innes SC, then Chairperson of the Cape Bar Council, said the following about Justice Mahomed (‘In memorium: Chief Justice Ismail Mahomed’ (2000) 117 SALJ 791-792 at 791):

‘The law was in effect Mahomed’s life. His visible and strong sense of justice and morality were his touchstone. He regarded the attainment of justice as being the ultimate rationale for all law. This sustained him throughout his illustrious career as an advocate and judge.’

And in another posthumous tribute given by a great lawyer, Mahomed’s colleague of many years and friend – perhaps one of the greatest lawyers ever produced by South Africa, Sir Sydney Kentridge QC, said following also evincing why Justice Mahomed was President Mandela’s undoubted first choice (‘Award to the late Chief Justice Ismail Mahomed’ Advocate (2000) 13(3) 11):

‘He had a vast knowledge of international constitutional law, and a sensitive appreciation of the balance to be struck between individual rights and the needs of society as a whole. If there is any single judgment which exemplifies that sensitivity, as well as his eloquence and his passionate commitment to the law, it is his judgment in the case on the constitutionality of the Truth and Reconciliation Commission [AZAPO v President of the RSA [1996] ZACC 16; 1996 (4) SA 672 (CC)]. That case should be compulsory reading for all students of constitutional law.’

Professor Ellison Kahn has similarly said of Justice Mahomed’s appointment as Chief Justice (‘Appointment of Justice Ismail Mahomed as Chief Justice’ (1997) 114 SALJ at 197):

JUSTICE ISMAIL MAHOMED: First black Chief Justice of South Africa, iconic and distinguished jurist - African Leaders Magazine

‘The elevation of Mr Justice Mahomed to the pinnacle of the judicial hierarchy is the culmination of a notable career of unremitting dedication to the cause of freedom and to the interests of the downtrodden, sustained by rare courage during many years when our country was racked with racialism. It is an inspiring story that calls for recounting.’

Professor Hugh Corder has therefore analogised the elevation of Justice Mahomed to the chief justiceship as having been similar to the election of President Mandela as our first democratically elected president (‘The new Chief Justice: A ringing and decisive break with the past’ Consultus (1997) 10(1) 18). That is so precisely because of Justice Mahomed’s triumphant life over the barriers created under apartheid against non-whites pursuing any professional vocation let alone in the legal profession. But also because of the adversities Mahomed constantly had to personally face and endure when practising law under apartheid, yet despite which he rose against the odds to the greatest heights of honour in the profession when he became the first black to take silk (ie to be conferred Senior Counsel status) in 1974. It is thus befitting to compare Justice Mahomed’s appointment as Chief Justice to the election of President Mandela because at the dawn of democracy, Justice Mahomed was raised to the respective heads of then ‘twin apex courts’ (the Supreme Court of Appeal and Constitutional Court respectively) and he was also raised to head the South African judiciary as a whole. Professor Corder put it thus:

‘On the personal level, however, there can be no doubt that the elevation of Ismail Mahomed to the Chief Justiceship represents the law’s equivalent of the election of Nelson Mandela as President of the country. In his own words, in a different context, it signified “a ringing and decisive break with a past which perpetuated inequality and irrational discrimination and arbitrary governmental and executive action” (see S v Mhlungu & others 1995 (3) SA 867 (CC) para 8).’

To borrow from Professor Corder’s analogy, it may very well be argued that Justice Mahomed was in more ways than one, the judicial equivalent of the iconic President Nelson Mandela because of his distinguished legacy and the unforgettable contribution he made to southern African law and jurisprudence on at least three levels, namely (J H Steyn, President of the Court of Appeal of Lesotho ‘The Hon Mr Justice Ismail Mahomed: A tribute to the late former President of the Lesotho Court of Appeal’ 1999-2000 LLR-LB 493; Carole Lewis ‘A personal tribute to Chief Justice Ismail Mahomed’ (2000) 117 SALJ):

First, as a compelling barrister with a successful practice which led him to make appearances in a great number of important cases that shaped our administrative and constitutional law;

Secondly, through rigorous legal scholarship having contributed numerous articles and presented many papers at judicial conferences, and having served on numerous editorial boards and on the Board of the Law Faculty of his alma mater for many years and on its Council, and having also notably chaired the South African legal reform body, the South African Law Commission from January 1996 to June 2000, but more importantly, for having never ceased to mentor both in practice and in academia; and

Thirdly, as a senior member of the judiciaries of South Africa, Namibia and the kingdoms of Swaziland and Lesotho where he delivered a great number of significant judgments most of which remain leading authorities.

Early Life

Ismail Mahomed was born in Pretoria on 25 July 1931 to a middle-class family. His father was a tradesman. Ismail was the eldest of the six children of his devout Muslim parents. He was a second generation native South African of Indian descent. His grandparents had settled in the Transvaal from India in the early 20th century. He matriculated at the Pretoria Indian Boys’ High School at the end of 1950. He then proceeded to obtain a BA (1953), BA (Hon) in Political Science both with distinction (1954), and an LLB (1957) at the University of the Witwatersrand. He was active during the course of his studies in student affairs and was a member of the Students’ Representative Council. The great Professor Ellison Kahn was one of Mahomed’s lecturers at Wits and was involved in the process of drafting the university’s rules relating to student affairs. He recollected Mahomed’s imposing participation in that process. (Ellison Kahn ‘Appointment of Justice Ismail Mahomed as Chief Justice’ (1997) 114 SALJ at 198.)

Life at the Bar

After obtaining his LLB in 1957, Mahomed was determined to practice as an advocate, which his degree entitled him to do, to which end he had to be admitted to the Bar. At the time, the Bar in his home city, Pretoria, openly embraced racial segregation and thus did not admit blacks. So, he decided to join the more liberal Johannesburg Bar which had no racial restrictions on membership.

Thus, unable to practice in his home city, Justice Mahomed moved to Johannesburg to begin his career at the Bar. But, quite apart from ending his woes with apartheid’s segregationist impediments, this was only the beginning of Mahomed’s hardships for practising law under apartheid for even in the big Johannesburg metropolis to which he had moved, where the Bar boasted a number of outspoken critics of apartheid, obstacles of apartheid remained. Despite his admission to the Johannesburg Bar, he was unable to rent chambers (office space) in the building which housed the Bar, because it fell under a so-called ‘white area’ which he (as a non-white) was precluded from renting under the Group Areas Act 41 of 1950.[3] And due to the segregated amenities of apartheid, he was also precluded from using the courts’ robbing rooms.  A deeply sensitive man, it is also no secret that when Mahomed first arrived at the Bar, he had suffered humiliation and many slights, some of which were regrettably from those who he should have been able to look upon as his colleagues. He was moreover precluded from using the Bar’s common room, and ended up at times having to suffer the indignity of eating his lunch in the toilets. (‘Address by the Honourable Mr Justice Ismail Mahomed at a dinner given by the Johannesburg Bar on 25 June 1997 to celebrate his appointment as Chief Justice of the Supreme Court of Appeal’ (1997) 114 SALJ 604 at 604-605.) But he also made lasting friendships at the Bar and he understood the continued importance of an independent professional Bar. (Sir Kentridge QC supra at 21.) For 12 years Mahomed was forced to borrow desk-space from empathetic white colleagues who were out in court, resorting to the library when there was no room available which made it almost impossible to consult with clients. Even after obtaining a Group Areas ‘permit’ in 1969, he was still barred for another five years from using the common room, by which time he had already become South Africa’s first black Senior Counsel.

Yet ‘Justice Mahomed’s career as an advocate was characterised by all accounts (and especially those of his juniors) by enormously hard work in preparation followed by brilliant performances in court. While he showed himself adept and had a diverse practice in all branches of the law, his leading position as the senior “black” advocate inevitably thrust him prominently into the public arena in many trials in which opponents of the regime stood accused of criminal acts and many civil matters in which the legality of executive and administrative action was being challenged.’ (Corder supra at 9.)

A workaholic, with a detestation of the injustices of apartheid which he experienced first-hand daily, Mahomed naturally became an authority on the Group Areas Act and he became one of the leading experts on administrative and constitutional law. Attesting to his expertise on that Act, he appeared as counsel in many a town and city at hearings of the Group Areas Board and he co-authored a book with Lewis Dison entitled Group Areas and Their Development: including land tenure and occupation, which was published in Durban by Butterworths in 1960. He courageously pursued his goal of breaking through barriers of racial prejudice and making a success of his career at the Bar. He performed his professional services with ability, diligence and dedication and was briefed to appear in a large number of important cases involving challenges to legislative and executive action under successive states of emergency and much else besides. (Kahn supra at 198-199.)

He was also admitted to the English Bar and to practice in the neighbouring countries where he was widely recognised as one of the most gifted orators at the South African Bar. He defended many anti-apartheid activists in political trials. He was legal adviser to the South West African People’s Organization (Swapo): the former national liberation movement and current ruling party of Namibia. And Justice Mahomed was one of the drafters of the Constitution of the Republic of Namibia which abolished capital punishment, and he later became that country’s Chief Justice. It was during his acting stint on the Namibian Bench that he delivered the leading judgment on the right to bail, S v Acheson 1991 (2) SA 805 (NmH), which is still applied with approval by our courts today. In that case, Mahomed AJ inter alia held that:

‘An accused person cannot be kept in detention pending his trial as a form of anticipatory punishment. The presumption of the law is that he is innocent until his guilt has been established in court. The court will therefore ordinarily grant bail to an accused unless this is likely to prejudice the ends of justice.’

While at the Bar, Mahomed did a great deal of work in far-flung areas where he represented rural communities against apartheid laws. And as a person of Indian descent, he was not allowed to stay in hotels or overnight in certain provinces such as the judicial capital situm, Bloemfontein, in the Orange Free State, and he thus frequently had to travel great distances to find accommodation in a round-about way to reach his destinations due to the absurd apartheid laws. Certainly, the most absurd of all obstacles to Mahomed’s practice arose whenever he had to appear before the Appellate Division (the now Supreme Court of Appeal) in Bloemfontein. According to a long-standing Bar convention which still subsists, counsel appearing in this court (then South Africa’s highest court) should arrive in the judicial capital the day before their hearing. But since the law stipulated that Asians (a group under which the law classified Mahomed) were not allowed to stay overnight in the Orange Free State at the time; to honour the Bar tradition as Mahomed was wont to do all other traditions of the profession, logic led to him having to fly to Bloemfontein on the eve of his appearance, and he then had to fly on to Durban in the neighbouring province of Natal where he stayed the night only to return to Bloemfontein the next morning for the hearing!

The law reports show that from 1975 to 1991 Ismail Mahomed did more than anyone else to shape administrative law in South Africa. To name only a few of the many notable cases he argued in the Appellate Division (AD), they include: S v Lehnberg en ’n ander 1975 (4) SA 553 (A), in which he had appeared in the trial at the request of the court (pro Deo) for the second accused Marthinus Choegoe in this case which aroused enormous public interest. One other important and notable case in which he appeared for the accused was S v Marwane 1982 (3) SA 717 (A), which was heard by a specially constituted AD with a coram of 11 Judges of Appeal as was required by the law (Appellate Division Quorum Act, 1955) whenever the validity of an Act of Parliament was challenged. It was the first Bill of Rights case to be heard by the AD. In that case, the validity of the Terrorism Act 83 of 1967 was challenged,[4] and on a majority of seven-to-four, the AD upheld the contention of Mahomed SC that the Act was invalid in Bophuthatswana as it was in conflict in several respects with the Bill of Rights entrenched in the Republic of Bophuthatswana Constitution Act 18 of 1977 and with the freedoms contained in the Bill of Rights. Another important AD case worth mentioning which was successfully argued by Mahomed SC is S v Ebahim [1991] ZASCA 3; 1991 (2) SA 553 (A), a case in which the AD held that under Roman-Dutch law a South African court has no jurisdiction to try a person abducted from another State by agents of South Africa. Mahomed SC’s client was an African National Congress ‘operative’ who had been kidnapped from Swaziland by South African agents and thereafter sentenced to twenty years’ imprisonment for treason by the Transvaal Provincial Division. The AD thus overturned the judgment of the court a quo resultantly setting the accused free! In the over 34 years of his practice at the Bar, Mahomed represented a number of notable figures of the South African liberation movement including Bram Fisher QC, Professor Fatima Meer, Rev Frank Chikane, Essop Pahad, Albertina Sisulu, Swelakhe Sisulu and Dr Essop Jassat. (Kahn supra at 201.)

In an address to his former Bar in Johannesburg, when he had occasion to reflect on his close association to it on 25 June 1997, at a dinner organised in honour of his appointment as Chief Justice (published in Consultus (1997) 11(2) 118), Justice Mahomed articulated the two foremost important traditions of the Bar, in his characteristic elegant way, thus:

‘The first is the tradition of thorough scholarship, pursuit of forensic excellence, capacity for rational thought, intense intellectual energy and unremitting discipline which barristers have always been expected to apply in the discharge of their briefs. There must be few endeavours, in all civilization, which can compare with the totality of commitment and the punctilious regard for detail which a competent and conscientious advocate harness in support of his or her case. This is a great and impressive tradition bred in very competitive conditions, which enriches the level of legal debate in the resolution of jurisprudential and actual disputes, and ultimately in a very crucial sense, the quality and legitimacy of the Bench and the image of justice itself. A second and related tradition was a fierce independence and an uncompromising standard of intellectual integrity and capacity for objectivity which informed the best of the Bar. It was sometimes displayed with a towering magnificence and with it came a depth of courage and a willingness to champion causes and litigants, often unpopular in the public perception.’

As was noted by L A Rose-Innes SC (supra), Ismail Mahomed was a shining example of his own words. His influential role as counsel is recorded in a number of leading criminal and administrative law cases (in addition to the aforementioned) such as S v Hassim & others 1971 (4) SA 120 (N); 1972 (2) SA 448 (N); and 1973 (3) SA 443 (A); S v Ramgobin & others 1985 (3) SA 587 (N); and 1986 (1) SA 68 (N); Staatspresident v UDF 1988 (4) SA 830 (A); and most famously, Administrator Transvaal v Traub 1989 (4) SA 731 (A).  Justice Mahomed had a huge capacity for work, a keen intellect, an appreciation of sharp debate, a passionate belief in justice and a powerful and at times colourful use of language. These qualities he took with him to the Bench. (Rose-Innes SC supra at 792).

In his own words, his time at the Bar evoked in him strong and contradicting emotions. He said the following during his address to the Johannesburg Bar on 25 June 1997:

‘The Johannesburg Bar means a great deal to me. I was a member of that Bar for more than 34 years. For me it was more than a professional organization. It has been in effect my life in a profoundly relevant sense: consuming almost my entire intellectual and moral energies for nearly two generations’.

And describing the feelings his time at the Bar brought back, Justice Mahomed said:

‘There is nostalgia and satisfaction – even pride – in the recall, but also much pain and shame; richness and fulfilment, but also humiliation and indignity – all strangely coalescing in a dance culminating in some perceptions with a vindicating crescendo.

The pain and the humiliation were intense. My status was determined by reference not to what I was but was not. I was ‘non-white’. It set about imposing on me a badge of inferiority sought to be written on my forehead. Its dominant consequence manifested itself in rejection and exclusion . . . These exclusions . . . inflicted deep wounds inside me, often revived in the telling, with a special kind of pain without bitterness.’

JUSTICE ISMAIL MAHOMED: First black Chief Justice of South Africa, iconic and distinguished jurist - African Leaders Magazine

Judicial office

In the 1980s Mahomed SC was approached by the National Party government to ascertain whether he would be prepared to accept an appointment on the Bench. At his interview held on 4 October 1996 before the Judicial Service Commission for appointment as Chief Justice, he said that it had been unthinkable then (ie, in the 1980s) for him to go on to the South African Bench. He was not even persuaded by the thought that through his judgments he might be able to alleviate the hardships caused by apartheid laws – he found them to be outright unconscionable. His attitude changed when President F W de Klerk gave his momentous ‘unbanning speech’ at the opening of Parliament on 2 February 1990.  On 12 August 1991, Ismail Mahomed thus accepted appointment to the Transvaal Provincial Division, but whilst also simultaneously retaining his preceding judicial appointments in the neighbouring countries.

In his rendition of Ismail Mahomed’s unparalleled judicial career, Sir Kentridge QC noted that Justice Mahomed ‘became a judge of the High Court in 1991 and was elevated to the Supreme Court of Appeal two years later. Then, after the new Constitution had come into force, he became successively Deputy President of the Constitutional Court and Chief Justice of South Africa. Add to this his judicial appointments in Botswana, Lesotho, Swaziland and Namibia, and one may surely say that there has been no comparable career in the law anywhere in the world.’ (Sir Kentridge QC supra.)

Mr Justice J H Steyn noted in his tribute that it was in his contribution as a judge – the third of his major contributions to the law – that Justice Mahomed ‘achieved the culmination of a life in the law’. (J H Steyn supra 494; repeated by J Gauntlett SC ‘We remember the late Chief Justice Ismail Mahomed 25 July 1931 – 17 June 2000’ Advocate (2000) 13(2) 5-6.)   Justice Mahomed delivered many important judgments, the review of which ‘reveals a clarity of language, close logic in reasoning and breadth of vision which combine to make compelling reading and persuasive judgment.’ His approach in them is ‘wont to start with a clear exposition, often in point form, of the basic principles governing the situation under review’ (as he did, for example, in S v Acheson supra at 811-812 and 822-823).  Justice Mahomed’s judgments have also been characterised by ‘colourful imagery and the use of powerful language.’ (Corder supra at 19.)

In what he has described as ‘the best two years of my life’ attributed to his time on the Constitutional Court, preceding his assumption of the office of the Chief Justice, then located in the Supreme Court of Appeal in Bloemfontein, he made his lasting contribution to our constitutional law having formed part of the inaugural Constitutional Court where he wrote many of the landmark cases. For instance, amongst others: S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); Shabalala & others v Attorney-General Transvaal & another [1995] ZACC 12; 1996 (1) SA 725 (CC); Azapo supra; and Du Plessis & others v De Klerk & another [1996] ZACC 10; 1996 (3) SA 850 (CC)

 

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