JUDICIARY The new Chief Justice A ringing and decisive break with the past

Hugh Corder Professor of Public Law University of Cape Town

HE past three years have wit­ nessed any number of extraor­ Tdinary departures from past practices in this country. Within the ad­ ministration ofjustice, the advent of the power of judicial review of legislative action, measured against the standards set in a written Constitution, amounted to a revolutionary alteration of the legal system's basic norm. 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 Nel­ son Mandela as President of the coun­ try. In his own words, in a different context, it signified "... a ringing and decisive break with a past which perpe­ trated inequality and irrational discrimi­ nation and arbitrary governmental and executive action" (see S v Mhlungu and Other 1995 (3) SA 867 (CC); 1995 (7) BCLR 793 (CC) at para 8). Chief Justice Ismail Mahomed At one level, Chief Justice Maho­ med's life experience exemplifies the tri­ That the new Chief Justice emerged tion of the law unmatched by any in­ umph of the human spirit and will over from these beginnings to be the jurist cumbent of that office since our first "irrational discrimination and arbitrary and practitioner of the stature which he Chief Justice, Lord de Villiers. While ... executive action". His classification has attained speaks volumes for his in­ most of our Chief Justices have fol­ by the law as an "Asian" South African tellectual capacity, oratorical and foren­ lowed the route of about twenty years meant that his secondary education was sic skills and his limitless industry and at the Bar, ten as a puisne judge and a 2 obtained through the Pretoria Indian determination. It is clear, too, that he is further ten on the Appellate Division , Boys' High School and that, after a sub­ imbued with the reconciliatory magna­ Justice Mahomed has a career of some stantial interlude at Wits during which nimity which is so marked in President 34 years at the Bar, a cumulative pe­ he graduated in political science and law', Mandela for, in accepting his new posi­ riod of 37 years as a part-time judge of he was prevented by the then racist char­ tion, he will spend most of his working appeal since 1979 (in Swaziland, acter of the Pretoria Bar from practising life in the very province in which he was Lesotho and Namibia, presiding over in his home city and by the Group Areas forbidden by law until 1985 to spend the latter two courts for the last few Act from occupying chambers at the Jo­ more than 24 hours at a time. We truly years), three years as a puisne judge in hannesburg Bar which did admit him as remain a "very strange society". South Africa and two years as Deputy a member. Thus he was forced for a President of the Constitutional Court. number of years to rely on the use of the Experience Indeed, if Lord de Villiers's dream of offices of his friends at the Bar and to eat Ismail Mahomed brings to the Chief an appeal court with pan-Southern Af­ his lunch in common areas of the build­ Justiceship a length and breadth of ex­ rican jurisdiction were to become a re­ ing or on the pavement outside. perience in the practice and adjudica­ ality in the next few years, there would

18 CONSULTUS, MAY 1997 JUDICIARY

be only one ideal candidate to be its Decisions the Constitution, their text and their con­ Chief Justice! A review of some of his decisions as a text; the interplay between the different Justice Mahomed's career as an ad­ judge of appeal reveals a clarity of lan­ provisions; legal precedent relevant to the vocate was characterised by all accounts guage, a close logic in reasoning and a resolution of the problem both in South (and especially those of his juniors) by breadth of vision which combine to Africa and abroad; the domestic common enormously hard work in preparation make compelling reading and persua­ law and public international law impact­ followed by brilliant performances in sive judgment. He is wont to start with ing on its possible solution; factual and court. While he showed himself adept a clear exposition, often in point form, historical considerations bearing on the and had a diverse practice in all branches of the basic principles governing the problem; the significance and meaning of the law, his leading position as the situation under review. (See, for exam­ of the language used in the relevant pro­ senior "black" advocate inevitably thrust ple, the legal principles relating to ap­ visions; the content and the sweep of the him prominently into the public arena plications for the adjournment of trials ethos expressed in the structure of the in many trials in which opponents of the in S v Acheson 1991 (2) SA 805 Constitution; the balance to be struck be­ regime stood accused of criminal acts (NmHC) at 811-812, and those of con­ tween different and sometimes poten­ and many civil matters in which the le­ cern in the granting of bail in the same tially conflicting considerations reflected gality of executive and administrative judgment at 822-823.) His judgments in its text; and by a judicious interpreta­ action was being challenged. Thus his are further redolent with colourful im­ tion and assessment of all these factors name appears as counsel in leading agery and the use of powerful language. to determine what the Constitution per­ criminal and administrative law cases, One or two samples will suffice: mits and what it prohibits." (/bid at para such as S v Hassim and Others 1971 (4) "All constitutions seek to articulate, with 266.) SA 120 (N); 1972 (2) SA 448 (N) and differing degrees of intensity and detail, and 1973 (3) SA 443 (A); S v Ramgobin and the aspirations of a nation, the values "A Constitution is an organic instrument. Others 1985 (3) SA 587 (N) and 1986 which bind its people, and which disci­ Although it is enacted in the form of a (1) SA 68 (N); Staatspresident v UDF pline its government and its national in­ statute, it is sui generis. It must broadly, 1988 (4) SA 830 (A) and Administra­ stitutions; the basic premises upon which liberally and purposively be interpreted tor, Transvaal v Traub 1989 (4) SA 731 judicial, legislative and executive power so as to avoid the 'austerity of tabulated (A). A significant case outside these is to be wielded; the constitutional lim­ legalism' and so as to enable it to con­ confines is National Union of Textile its and the conditions upon which that tinue to play a creative and dynamic role Workers v Stag Packings (Pty) Ltd 1982 power is to be exercised; the national in the expression and the achievement (4) SA 151 (T). He took silk in Septem­ ethos which defines and regulates that of the ideals and aspirations of the na­ ber 1974. exercise, and the moral and ethical di­ tion, in the articulation of the values Despite this demanding work-load, rection which that nation has identified bonding its people and in disciplining its Justice Mahomed found the time to turn for its future. In some countries, the Con­ Government." his considerable oral skills to writing, stitution only formalises, in a legal in­ (Government ofthe Republic ofNamibia and co-authoring a work on Group Areas strument, a historical consensus of values Ano v Cultura 2000 and Ano 1994 (1) SA and their Development (with Lewis and aspirations evolved incrementally 407 (NmSC)). Dison, 1960) and contributing numer­ from a stable and unbroken past to ac­ Justice Mahomed' s exposure interna­ ous articles to law journals, notable commodate the needs of the future. The tionally is reflected in his knowledge and among which are: "Preventive Deten­ South African Constitution is different: use of comparative authority in abun­ tion and the Rule of Law" (1989) 106 it retains from the past only what is de­ dance, and he is likewise not averse to SAU546; "Disciplining Administrative fensible and represents a decisive break the use of academic texts. Again, no one Power- Some South African Prospects, from and a ringing rejection of, that part who saw his obvious delight in co-chair­ Impediments and Needs" (1989) 5 of the past which is disgracefully racist, ing the flfSt formal round of constitu­ SA1HR 345, and "The impact of a bill authoritarian, insular, and repressive and tional negotiations at CODES A just of rights on law and practice in South a vigorous identification of and commit­ before Christmas 1991 will be surprised Africa" 1993 De Rebus 460. ment to a democratic, universalistic, car­ at his keen sense of the delicate balance His alma mater, with the government ing and aspirationally egalitarian ethos, which needs to be struck between judi­ of whose Law School he has remained expressly articulated in the Constitution." cial and public policy from time to time. involved, made him an honorary pro­ (S v Makwanyane 1995 (3) SA 391 (CC) and The new Chief Justice is a serious fessor in 1990, and the universities of 1995 (6) BCLR 665 (CC) at para 262.) and passionate man, typically preferring Delhi and Pennsylvania have conferred On the interpretation of such an in­ to peruse the latest volume of the law honorary doctorates of law on him. His strument: reports rather than join in a game of judicial experience in neighbouring "The judicial process is entirely differ­ volleyball in the 'open time' built into countries means that he is a much-re­ ent. What the Constitutional Court is re­ the Centre for Applied Legal Studies' spected figure in judicial circles of the quired to do in order to resolve an issue, annual judges conference. He often starts Commonwealth. is to examine the relevant provisions of a contribution to a discussion at low >

MAY 1997, CONSULTUS 19 JUDICIARY volume, prompting calls of 'louder!', but retary for Finance 1991 (4) SA 873 hierarchy of courts from the House of building to an emphatic crescendo by (NmSC) and Meyer v Hessling 1992 (3) Lords to be Master of the Rolls in the way of emphasis. At the same time, he SA 851 (NmSC». But it will now also Court ofAppeal so as to have more scope has a well-honed sense of humour, and have a critical part as the penultimate for influencing the development of the is quite prepared to laugh at his own port of call for all constitutional ques­ law, is anything to go by, we are in for idiosyncrasies, especially when his imi­ tions, as well as perhaps an even more exciting developments in Bloemfontein. tator is an eminent recent silk. He uses important responsibility in coaxing the There is no one better equipped to be such humour to leaven his often intense common law closer to the principles of the inspiration for this process than the but constructive engagement with coun­ democracy, openness, freedom, equal­ new Chief Justice, Ismail Mahomed. sel's arguments in court. ity and dignity which underlie the Bill of Rights. As Ma-homed DP noted with Footnotes Future role some prescience in Du Plessis and Oth­ Incidentally, he is the first LLB graduate And what of the Chief Justice's future ers v De Klerk and Another 1996 (3) from Wits to become Chief Justice, al­ role at the head of the Supreme Court of SA 850 (CC) at para 87: though ofcourse the presidcnt ofthe Con­ Appeal? There can be no doubt that J us­ "The interpretation which I have come stitutional Court is also such a graduate. tice Mahomed would not have accepted to favour has the advantage of giving 2 There have been some singular excep­ nomination to this symbolically illustri­ to the ... Appellate Division a very clear tions to this average background: some ous position had the final Constitution and creative role in the active evolu­ of the earlier Cl's had little practice at not restored the Appellate Division (in tion of our constitutional jurisprudence the Bar and long tenure as puisne and/ its new guise) to the mainstream of the by examining, and in suitable circum­ or appeal judges (Lord de Villiers, Sir constitutional debate. That court re­ stances expanding, the traditional fron­ William Solomom and Sir Johannes mains the final arbiter of all disputes in tiers of the common law by infusing it Wessels), while the modern exception regard to the common law, an area in with the spirit of chapter 3 of the Con­ is LC Steyn, with no experience at the which the Chief Justice has already dis­ stitution and its purport and objects." Bar and about ten years' service on the played his ability (see, for example, Oryx If the historical precedent of Lord Bench prior to appointment as Chief Mining and Exploration (Pty) Ltd v Sec­ Denning, who moved "sideways" in the Justice. III

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20 CONSULTUS, MAY 1997