We remember...

The late Chief Justice Ismail Mahomed 'non-white' . It set about imposing on me a badge of inferiority, sought to be written on 25 July 1931 - 17 June 2000 my forehead. Its dominant consequence manifested itself in rejection and exclu­ A tribute by Jeremy Gauntlett SC* sion: a constitutional exclusion from the Bar in my home city, leaving me to find an Ismail Mahomed was South Africa's first black Chief alternative Bar in Johannesburg; exclu­ Justice and a remarkable jurist. He died after a short and sion from the right to occupy any office in devastating illness, which he knew was fatal. Invited to a chambers for counsel in Johannesburg, leaving me for 12 years to squat from hour GCB dinner in July, he accepted immediately, adding sim­ to hour and from office to office in the ply: "As you know, I have a serious illness, but I shall try chambers of one or other colleague tem­ very hard to be there." porarily in court; exclusion from the com­ mon room frequented by these colleagues, he reply was characteristic. 1979 he was appointed a judge of the leaving me to consume my sandwiches in Ismail Mahomed was, first and Court of Appeal in Swaziland and in vacant offices or corridors, and when this Tlast, a fighter. That attribute 1982 of its counterpart in Lesotho. was not convenient, even in toilets on occa­ marked his style as an advocate, his After Namibia attained its indepen­ sion; a directed but unheeded exclusion forceful public espousals of human dence in 1990, he became its second from the robing room used by other col­ rights, and ultimately his approach as a chief justice, and later he became the leagues, leaving me to cope with conse­ judge in three Southern African coun­ president of the Court of Appeal of quences; exclusion from the right to sleep tries. Lesotho. overnight in Bloemfontein during appear­ ances before the highest court, leaving me Ismail Mahomed was born in Pretoria In 1991, after the lifting of political to skulk across the border of the Free State on 25 July 1931. He matriculated at the restrictions in South Africa, Judge before sunset to find accommodation from Pretoria Indian Boys' High School in Mahomed became the first black South night to night more than 100 kilometers 1950. He graduated BA (1953), BA African to be appointed permanently away. These exclusions reinforced a mul­ (Hons) in Political Science with dis­ to the High Court Bench. In 1993 he titude of other exclusions which denied my tinction (1954), and LLB (1957), at the was elevated to the Supreme Court of humanity. They inflicted deep wounds University of the Witwatersrand. Appeal. In 1994 he was appointed a inside me, often revived in the telling, with judge of the Constitutional Court and a special kind of pain without bitterness." in 1995 its deputy president. After 1996 he also served as the chairman of As an advocate, Ismail Mahomed the South African Law Commission. appeared in a large number of South Africa's most important trials, applica­ On 1 January 1997, Ismail Mahomed tions and appeals: innumerable group assumed office as Chief Justice of areas battles, the dispossession of the South Africa, and became the chair of rural poor (involving challenges to the Judicial Service Commission. homeland gerrymandering), chal­ lenges to legislative and executive The contribution of Ismail Mahomed action under the successive states of to South African law and society has emergencies, and much else besides. been remarkable in three areas. First, for more than three decades he was a His second major contribution has courageous and compelling barrister. been through his support for human He did not merely overcome adversity; rights and legal writing on it. He has The late Chief Justice his professional life was an uncompro­ co-authored a book and published a lsmail Mahomed mising triumph over it. What this number of articles in law journals, meant, he has described tellingly, as served on editorial boards and the For 35 years he practised at the South follows: board of the School of Law at the African Bar, becoming the first black University of the Witwatersrand. He South African to be elevated to the "My status was determined by reference has received honorary doctorates from ranks of senior counsel in 1974. In not to what I was but what I was not. I was the University of Delhi, the University

* This obituary draws in part on an address prepared by the author to the convocation of the University of Cape Town, conferring an honorary degree continued on page 6 on Chief Justice Mahomed.

Second Term 2000 Advocate 5 GENERAL COUNCIL OF THE -BAR

Chief Justice Mahomed It is in his contribution as a judge that rim Constitution took effect. It was the Ismail Mahomed has achieved the cul­ advent of a constitutional state, in continued from page 5 mination of a life in the law, and made which it is only the Constitution that is his third major contribution. Uniquely supreme, to which Ismail Mahomed he served as the chief justice (for just devoted his life to achieving and ser­ of Pennsylvania, the University of over two years) simultaneously of two ving. The advancement of human Natal and the University of Cape Southern African countries. He pre­ rights, the regulation of the abuse of Town. He has delivered a number of viously served as the Deputy President power, and the enabling of the ordi­ important addresses and has received of the Constitutional Court and, less nary and the vulnerable to live fulfil­ an array of awards recognising his officially, as one of the most formida­ ling lives will remain the challenges of work in the field of human rights. ble forces within it. His judgments the South African legal order which were marked by alluring alliteration Mahomed strove to advance. In his legal writing he has displayed a reach for principle above precedent. and distinctive rhetoric. One brief For him it is not enough that it is so, or excerpt must suffice: Ismail Mahomed remained a believer has long been thought to be so. He has in the Bar as an independent referral written of what he has called "The South African Constitution is differ­ profession to the end of his life. ent: it retains from the past only what is Indeed, as a judge he retained many of " the tradition of thorough scholarship, pur­ defensible and represents a decisive break the qualities of a committed advocate: suit of forensic excellence, capacity for from, and a ringing rejection of, that part of advancing his points with great force­ rational thought, intense intellectual energy the past which is disgracefully racist, fulness, to the extent that it sometimes and unremitting discipline which barristers authoritarian, insular and repressive; and a seemed he was set on persuading have always been expected to apply in the vigorous identification of a commitment to counsel that they were wrong. Like discharge of their briefs." a democratic, tiniversalistic, caring and Camus' Dr Rieu, he fought creation aspirationally egalitarian ethos, ex­ where he found it. (JJ These are the qualities he himself has pressly articulated in the Constitution." displayed in his scholarship, lived out as it has been in a confluence of pro­ A matter of months before Ismail fessional practice, legal writing and Mahomed was sworn in as a member latterly, judicial work. of the Constitutional Court, our inte­

AFSA's Arbitration Appeal in favour of greater certainty derived and include a wealth of experience Panel from the appeal process. which will be brought to bear in deter­ To facilitate the exercise of this mining the final outcome of disputes continued from page 4 option, the Western Cape branch of the and ensuring a speedy resolution of Arbitration Foundation of South Africa matters. The panellists should be able (AFSA), for instance, has established to produce a ruling within a short peri­ and weary waiting on the uncertainty an illustrious arbitration appeal panel od after the matter has been argued. As of law" (Voet 4.8.1. Gane's transla­ comprising retired Chief Justice past experience of arbitration in this tion). Today, it is not uncommon to Corbett, retired Judges of Appeal EM country has shown, an appeal tribunal find standard arbitration clauses in Grosskopf, Botha, Kumbleben and could (by agreement) sit after hours or most commercial contracts. retired Judge President Friedman (who over week-ends to hear argument on a The award of an arbitrator is often was himself previously a judge of matter, and in doing so bring finality to agreed to be final and binding, and appeal). The panel will be available major disputes in a matter of weeks. hence not appealable. But parties are nationally and in appeals involving For further information contact increasingly resorting to the inclusion parties further afield. AF5-A anhe Cape Bar, telephone num­ of an appeal process in the arbitration The principal benefits of such an ber (021) 424 5003 or Johannesburg, agreement. Some delay in the final arbitration appeal panel are obvious telephone number (011) 320 0600.OJ determination of disputes is accepted

6 Advocate Second Term 2000