Justice Ismail Mahomed
“What the Constitution expressly aspires to do is to provide a transition from the grossly unacceptable features of the past to a conspicuously contrasting future founded on the recognition of human rights, democracy, and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief, or sex.”
During apartheid, Justice Ismail Mahomed became a leading authority on the Group Areas Act as well as shaping South Africa’s administrative law. He served as a judge in Lesotho, Swaziland, and Namibia, and in the 1990s was the first black South African to be appointed to the High Court Bench. He was appointed as a judge on the Constitutional Court and later as Chief Justice of South Africa.
South African Law Reform Commission 2012 / 2013 Annual Report
Early Life and Career
Ismail Mahomed was born in Pretoria on 25 July 1931, a second generation South African of Indian descent and eldest child of devoutly staunch Muslim parents. He had five siblings.
Mahomed matriculated at Pretoria Indian Boys’ High School in 1950. He completed a BA degree at the University of the Witwatersrand in 1953 and a BA honours with distinction in political science in 1954. He completed his LLB in 1957. While studying, Mahomed became a notable and active member of the Students’ Representative Council (SRC) and the Transvaal Indian Congress. Mahomed was admitted to the Johannesburg Bar, because the Bar in Pretoria, where he lived, was reserved for whites.
My status was determined by reference not to what I was, but what I 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: a constitutional exclusion from the Bar in my home city, leaving me to find an alternative Bar in Johannesburg; exclusion from the right to occupy any office in chambers for counsel in Johannesburg, leaving me for 12 years to squat from hour to hour and from office to office in the chambers of one or other colleague temporarily in court; exclusion from the common room frequented by these colleagues, leaving me to consume my sandwiches in vacant offices or corridors, and when this was not convenient, even in toilets on occasion; a directed but unheeded exclusion from the robing room used by other colleagues, leaving me to cope with consequences; exclusion from the right to sleep overnight in Bloemfontein during appearances before the highest court, leaving me to skulk across the border of the Free State before sunset to find accommodation from night to night more than 100 kilometers away.
These exclusions reinforced a multitude of other exclusions which denied my humanity. They inflicted deep wounds inside me, often revived in the telling, with a special kind of pain without bitterness.
Ismail Mahomed
Deputy President of the Constitutional Court and also Chief Justice of South Africa
During the early sixties he was admitted as an advocate in Lesotho, Botswana, Swaziland, and Zimbabwe. In 1984 he was admitted to the English Bar. He built an extensive litigation practice and in 1974 he became the first black person in South Africa’s history to take silk. Mahomed’s practice was concentrated on civil rights. He appeared in numerous trials on behalf of some of the leading figures in the anti-apartheid movement, and played a leading role in challenges to the government’s administrative and executive decrees during his 35-year career as an advocate.
In 1979, he was appointed a judge of the Appeal Court in Swaziland, and in 1982 he was made a judge of appeal in Lesotho. He later became the Chief Justice of Namibia and the President of the Lesotho Court of Appeal. In this capacity he gave some of these courts’ leading constitutional and administrative law judgments.
In 1991, after the unbanning of the ANC, he became the first black person in South African history to be made a permanent judge of the Supreme Court of South Africa. He was also appointed co-chair of the Conference for a Democratic South Africa, better known as CODESA, which formed the basis for a democratic interim constitution to be drafted and adopted pursuant to the first elections being held in 1994.
The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution.
Ismail Mahomed
Deputy President of the Constitutional Court and also Chief Justice of South Africa
Mahomed was made an honorary professor of law at the University of the Witwatersrand and at Columbia University in New York. He received honorary doctorates in law from the University of Delhi and the University of Pennsylvania. He was also awarded the Indicator Human Rights award in 1990, and received the special award of the Black Lawyers’ Association for his outstanding contribution to the development of human rights in South Africa.
Appointment to the Constitutional Court
Mahomed was appointed to the Constitutional Court in 1994 by President Nelson Mandela. In 1998 he was made Chief Justice of South Africa, a position he held until his death in 2000.
Judgments of Interest
Azanian People’s Organisation (AZAPO) and Others v President of the Republic of South Africa and Others (1996)
In this case, the applicants applied for direct access to the Constitutional Court for an order declaring section 20(7) of the Promotion of National Unity and Reconciliation Act 34 of 1995 (the Act) unconstitutional. This was the Act that established the Truth and Reconciliation Commission (TRC). Section 20(7) permits the Committee on Amnesty established by the Act to grant amnesty to a perpetrator of an unlawful act associated with a political objective and committed under apartheid and the applicants argued the unconstitutionality of this section.
In a judgment penned by Justice Mahomed, the Court upheld the constitutionality of the section. It acknowledged that the section limited the applicants’ right in terms of section 22 of the interim Constitution to ‘have justiciable disputes settled by a court of law, or . . . other independent or impartial forum’. However, in terms of section 33(2) of the Constitution, violations of rights are permissible either if sanctioned by the Constitution or if justified in terms of section 33(1) of the Constitution (the limitation clause).
Loved ones have disappeared, sometimes mysteriously, and most of them no longer survive to tell their tales. Others have had their freedom invaded, their dignity assaulted, or their reputations tarnished by grossly unfair imputations hurled in the fire and the crossfire of a deep and wounding conflict. The wicked and the innocent have often both been victims. Secrecy and authoritarianism have concealed the truth in little crevices of obscurity in our history. Records are not easily accessible, witnesses are often unknown, dead, unavailable, or unwilling. All that often effectively remains is the truth of wounded memories of loved ones sharing instinctive suspicions, deep and traumatising to the survivors but otherwise incapable of translating themselves into objective and corroborative evidence which could survive the rigours of the law.
Deputy President Ismail Mahomed
the Azapo judgment, 25 July 1996
State v Makwanyane (1995)
At the time when this judgment was passed, the then Interim Constitution of South African had not expressly abolished the death penalty. In an unanimous judgment by the 11 members of the Constitutional Court, it was held that the death penalty was unconstitutional.
In his judgment, Justice Mahomed articulated the following:
The deliberate annihilation of the life of a person, systematically planned by the State as a mode of punishment, is wholly and qualitatively different … It is systematically planned long after – sometimes years after – the offender has committed the offence for which he is to be punished, and whilst he waits impotently in custody, for his date with the hangman. In its obvious and awesome finality, it makes every other right, so vigorously and eloquently guaranteed by … the Constitution, permanently impossible to enjoy. Its inherently irreversible consequence makes any reparation or correction impossible, if subsequent events establish, as they have sometimes done, the innocence of the executed or circumstances which demonstrate manifestly that he did not deserve the sentence of death.
It is not necessarily only the dignity of the person to be executed which is invaded. Very arguably the dignity of all of us, in a caring civilization, must be compromised, by the act of repeating, systematically and deliberately, albeit for a wholly different objective, what we find to be so repugnant in the conduct of the offender in the first place.
Deputy President Ismail Mahomed
the Makwanyane judgment, 6 June 1995
Family and Personal Life
Mahomed was married to Hawa Mahomed (nee Bava). He died on 17 June 2000 of pancreatic cancer.
What it was like to know him
For more than three decades, he was a courageous and compelling barrister. He did not merely overcome adversity; his professional life was an uncompromising triumph over it. It is in his contribution as a judge that Ismail Mahomed has achieved the culmination of a life in the law. Uniquely, he served as the chief justice (for just over two years) simultaneously of two Southern African countries. He previously served as the Deputy President of the Constitutional Court and, less officially, as one of the most formidable forces within it. His judgments were marked by alluring alliteration and distinctive rhetoric.
Advocate Jeremy Gauntlett
He was a very special person, very sharp. My memories of him, both as counsel and as a judge, and as a leader in the Court, is that he was an incisive mind, reacted very quickly to situations, he could see points, where some of us were still possibly toddling along, looking for answers … He was a brilliant lawyer both during his practice days and whilst he was at Court.
Pius Langa
former Chief Justice of the Constitutional Court
Ismail Mahomed meant everything to me but not only to me, to every member of the family and the community. He was an extremely helpful fellow
Anver Mahomed
brother of Justice Mahomed
I was only meant to clerk for him for a year but I stayed for another year. I wouldn’t have done that for anybody else. Justice Mahomed was very empowering to work for. We’d debate and discuss every single aspect of a case … When one reads his judgments, he’s got a very poetic style of writing. He had a great, great legal mind. And beyond that he was really a man of tremendous passion. He felt very strongly about trying to see where justice should lie, and doing what that dictated.
Shanie Stein
former law clerk to Justice Mahomed
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.
Professor Hugh Corder
University of Cape Town
