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Award to the late Chief Justice Ismail Mahomed

Speech by Sir Sydney Kentridge QC at the posthumous handing over of the Sydney and Felicia Kentridge Award to the late Chief Justice Ismail Mahomed on 28 July 2000.

n August of last year Felicia and I in the modern style of judgment. But . I appeared before him as Iwere at a conference in Salzburg, there have been exceptions on both counsel in a constitutional appeal. We Austria. It was an international confer­ sides of the court. Some of us can still had what I might describe as a pleasant ence on the independence of the judici­ remember the persuasive eloquence of colloquy. Best of all, from my point of ary. A great majority of those invited forensic heroes of old such as Oswald view, for a short time I sat with him on were chief justices and other judges of Pirow, Harold Hanson and Isie Maisels. the Constitutional Court. As a the highest courts of many countries ­ As for the Bench, one recalls the stylis­ Constitutional Court judge he was at his the House of Lords, the United States tic felicities of a Denning, a Cardozo very best. He had a vast knowledge of Supreme Court, the Supreme Court of and of our own J ames Rose Innes. international constitutional law, and a Canada, the constitutional courts of Ismail was an eloquent advocate and an sensitive appreciation of the balance to many European countries and courts in eloquent judge. His eloquence was not be struck between individual rights and Asia and Africa. The South African mere facility with words - although he the needs of society as a whole. If there judge invited to the conference was was a master of the English language; is any single judgment which exempli­ Chief Justice Ismail Mahomed. The rather it was part of his deep commit­ fies that sensitivity, as well as his elo­ opening address was given by the pres­ ment to individual rights and his real quence and his passionate commitment ident of a distinguished European feeling for the law. His life-long goals to the law, it is his judgment in the case court, who spoke appropriately on the were freedom and equality, but he on the constitutionality of the Truth and importance of judicial independence always believed that the way to those Reconciliation Commission. That case and the way in which that should and goals, and their best protection when should be compulsory reading for all could be safeguarded. Ismail, who was achieved, were law and the judicial students of constitutional law. not known to most of those present, process. The recent history of this coun­ It is a great sadness that the award was down on the programme to speak try has shown that he was entirely right. this evening has had to be a posthu­ on the following morning. He took up a Law for Ismail Mahomed was not sim­ mous one. But at least Ismail did know different and unexpected theme. He ply a draft. He truly loved the law and of it before his all too early death. spoke not on the rights and powers of its distortions under the apartheid There could have been no more appro­ the judges but on the obligations of the regime were a matter not only of justi­ priate candidate for this first award. judge - above all the obligation to the fied indignation, but of real pain for Has there ever been a more remarkable litigants, to counsel who appeared him. The law was his life. It is not sur­ legal career than his? The appalling before the court, and to the society in prising that he was a founding trustee of obstacles which he had to overcome, which the judge lived. His theme was The Legal Resources Centre. and the humiliations which he had to developed with systematic logic but he suffer in his early years at the Bar are spoke with a passionate eloquence Professional relationship well known. He was a sensitive man which astonished and electrified the My professional relationship with and felt them deeply. Yet he built up a other delegates. It was his speech Ismail was fourfold. First, he was my practice as the country's leading wil'ich, by its own force, became the junior in several cases and frequently administrative lawyer. Against all the keynote speech of the conference. kept me from error. Then, after he had odds he was given silk in 1974, became taken silk, we appeared together in a a judge of the High Court in 1991 and Eloquence number of cases. It was always com­ was elevated to the Supreme Court of That passion and that eloquence, com­ forting to be on the same side as Ismail. Appeal two years later. Then, after the bined with legal logic, were the hall­ One of these cases was the judicial new constitution had come into force, marks of Ismail Mahomed both as review of the Medical Council's refusal he became successively Deputy­ advocate and as judge. Some 25 or more to take action against the doctors in the President of the Constitutional Court years ago, when I was a delegate to the Biko case. As it happened there were and Chief Justice of South Africa. Add annual meeting of the General Council three of us who addressed the court for to this his judicial appointments in of the Bar, the then chief justice in his the applicants. The third, whom I am , Lesotho, Swaziland and speech to the conference said that elo­ very glad to see here this evening, was Namibia, and one may surely say that quence no longer had any place in mod­ David De Villiers QC. Between us we there has been no comparable career in ern advocacy. For most of us this is true; won the case, or at least managed not to the law anywhere in the world. logic and lucidity are the best we can lose it. My third professional encounter aim at. Nor has eloquence much place was when Ismail was Chief Justice of continued on page 21

Third Term 2000 Advocate 11 REPORTS

GCB papers • An initiative (with the Director of deep appreciation to Elize van den Public Prosecutions : Western Cape) Heever, our executive secretary, and GCB committees during the past year regarding participation by the Bar in her colleagues Marietjie Horn and have prepared papers, adopted by the prosecutions; Susan Molefe. They have dealt with GCB, on the following issues: • Endeavours which have resulted in voluminous and only partially legible • Trengove SC and Marcus SC on the setting up the faxes, my flow of mangled e-mails, and merger of the Constitutional Court Scholarship and the Sir Sydney and all the pressures of running an office and Supreme Court of Appeal; Felicia Kentridge Award for service with executive members in other cities • Solomon SC, Derksen SC and to law in Southern Africa (spon­ with unfailing good cheer. Elize in par­ Laubscher SC on the incorporation sored by the Nedcor Group of ticular has been a tower of strength to of advocates' practices into close Companies); all of us, as she has battled to elicit corporations; material from various Bar chairs and • Informal discussions with represen­ secretaries, and to cope with the crises • Van der Linde SC and Singh SC's tatives of Nadel on 8 February 2000; response for the GCB to the White which have emerged. • Informal discussions with chair of Paper on the Judicial System; I am also particularly grateful to LSSA during July 1999 in Nirmal Singh (who not only accompa­ • Grobler SC on the proposed amend­ Pietermaritzburg; nied me to Malaysia but more ments to the Judicial Service • Informal discussions with AFT parochially to important meetings Commission Act 9 of 1994 (intro­ members on transformation issues; domestically), and who was always ducing a judicial complaints com­ available to discuss issues and offer mittee and misconduct proceedings • Meeting with UN Rapporteur to dis­ cuss the independence of judges and advice. He has had to deal with prob­ against judges); lawyers on 10 May 2000; lems relating to matters from bursaries • Snyckers and Spitz on the constitu­ • Informal discussions with represen­ to advocacy training. Likewise Roland tionality of the defaulters' list; tatives of the Criminal Law Bar on Sutherland found time to meet with me Neser SC, Ancer SC, Schwartz and 6 June; frequently during VISits to Mullins prepared submissions to the to discuss problems. He • Service on Editorial Committee, and Satchwell Commission on the Road has also stood in for me at a number of contributions to Advocate; Accident Fund. important meetings, and borne much of • Competition Commission in finalis­ the brunt of the Legal Aid issue. My National Bar Conference ing with the assistance of Burger SC predecessor, Peter Hodes, was also A national Bar conference was sched­ the application for exemption of cer­ always available to offer assistance, as uled for Cape Town for April 200l. tain Rules of the GCB and its con­ was his predecessor, Ma1colm Wall is. Peter Hodes SC led a particularly able stituent Bars; I would also record my gratitude to and dedicated team who were far • Served on both the GCB Bar the chairs of the constituent Bars and advanced in their plans for this confer­ Conference and Human Rights their secretaries, and to all those ence, and who had attracted the atten­ Committees; involved in GCB committees, for their dance of internationally recognised par­ • Informal discussions with Bar chairs hard work during the past year. ticipants on the selected topic of e-Iaw. and Bar members in Grahamstown, The Bar, both as an institution and a Unfortunately the renewed withdrawal Port Elizabeth, Cape Town, , way of life, is difficult but fundamen­ of members of Advocates for Johannesburg and Durban. tally worthwhile. We owe it both to Transformation in Cape Town from par­ each other and to those who need our ticipation in Bar and GCB affairs called The heart of the GCB is its very small services to continue to strive to make it into question the viability of continuing office and loyal staff. I record here my better. CO wiih the conference (particularly one involving international attendance, the judiciary and financial sponsorship) in Award to the late Chief circumstances which would suggest a racial boycott. For that reason, the deci­ Justice Ismail Mahomed sion was reluctantly taken - in conjunc­ continued from page 11 tion with all Bar chairs - that the con­ ference would have to be cancelled. Where Ismail fIrst came to the Bar he It is fitting that the General Council of suffered many slights - some unfortu­ the Bar is tonight honouring his General nately from those whom he should have achievements and his memory. Ismail's Other things I have done during the been able to look upon as colleagues. widow is in deep mourning and cannot past year include the following: But he also made lasting friendships at be present. His brother, his sister-in-law • Submission prepared on behalf of the Bar and the Bar meant much to him. and his niece are present tonight and I the GCB on the Discussion Paper on He understood its continuing impor­ ask his brother to come forward and to the Transformation of the Legal tance as an independent profession. receive the scroll on which the award is Profession; Ismail had many honours in his lifetime. recorded. CO

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