Ismail Mahomed

Ismail Mahomed SCOB SC (5 July 1931 – 17 June 2000) was a South African lawyer and jurist who served as the first non-white Chief Justice of South Africa from January 1997 until his death in June 2000. He was also the Chief Justice of Namibia from 1992 to 1999 and the inaugural Deputy President of the Constitutional Court of South Africa from 1995 to 1996.

Born in Pretoria to Indian Memon immigrant parents hailing from Ranavav, Mahomed practiced as an advocate in Johannesburg during apartheid, becoming reputed as one of South Africa's foremost litigators in civil rights law and administrative law. In 1974, he became the first non-white advocate to take silk in South Africa. Although apartheid precluded him from judicial appointment in South Africa, he was a judge of appeal in neighbouring Swaziland from 1979 and in neighbouring Lesotho from 1982. He was the co-chairperson of the Convention for a Democratic South Africa in 1991.

Also in 1991, as the negotiations to end apartheid accelerated, Mahomed was appointed as the first non-white judge of the Supreme Court of South Africa. He was elevated to the Constitutional Court when it was established in 1995, but after two years he returned to the Supreme Court's Appellate Division, newly re-constituted as the Supreme Court of Appeal. His appointment as Chief Justice of the new court, spearheaded by President Nelson Mandela, was a point of controversy among the white legal establishment, but he led the appellate court until his death from pancreatic cancer.

Early life and education

Mahomed was born on 5 July 1931 in Pretoria. The son of devoutly Muslim Indian Memon immigrants, with a tradesman father, he was the eldest of six children and was classified as Indian under apartheid. After matriculating in 1950 at the Pretoria Indian Boys' High School, he moved to Johannesburg to enrol at the University of the Witwatersrand, where he was one of a small group of non-white students. He completed a BA in 1953, an Honours in political science with distinction in 1954, and an LLB in 1957. It continued until the mid-1970s, when a white advocate intervened to obtain a special governmental dispensation allowing Mahomed his own room in chambers. Mahomed became the first non-white advocate to take silk in South Africa, His other activist clients included Zwelakhe Sisulu and Penuell Maduna, who said that Mahomed "was that kind of character who actually places issues of justice before the judge, the justice of the cause of the people fighting apartheid before the judge".

Outside of South Africa, Mahomed was admitted as an advocate in the neighbouring Commonwealth countries of Lesotho, Botswana, Swaziland, and Zimbabwe, and he ultimately served as the second Chief Justice of Namibia from 1992 to 1999. He also served a stint as president of the Lesotho Court of Appeal. From 1993, he was an acting judge in the Supreme Court's Appellate Division, at the time the highest bench in the country.

Constitutional Court: 1995–1996

On 14 February 1995, Mahomed was among the 11 judges sworn in to the inaugural bench of the Constitutional Court of South Africa, which was newly established under the Interim Constitution. Shabalala v Attorney-General of the Transvaal, In re: Gauteng School Education Bill of 1995, AZAPO v President, and Fraser v Children's Court, Pretoria North. Sydney Kentridge said of the AZAPO v President judgment, on the constitutionality of the post-apartheid Truth and Reconciliation Commission, that it exemplified Mahomed's "sensitive appreciation of the balance to be struck between individual rights and the needs of society as a whole" and that it "should be compulsory reading for all students of constitutional law". Instead, operating on a principle of seniority, a large number of judges nominated Judge of Appeal Hennie van Heerden for the position; indeed, van Heerden's colleague, Judge of Appeal Joos Hefer, called publicly for Mahomed to withdraw from the contest out of "honour". The controversy was compared to a similar saga four decades earlier when L. C. Steyn had been elevated over his more senior colleague, Oliver Schreiner. Mandela confirmed Mahomed's appointment with effect from 1 January 1997. According to commentators, Mahomed was an "important bridge" between the Constitutional Court and the Supreme Court, keeping offices on Constitution Hill in Braamfontein as well as in Bloemfontein. Indeed, he reportedly supported the proposal – also mooted by Justice Minister Penuell Maduna (Mahomed's former client) – to merge the two apex courts under the Office of the Chief Justice.

Mahomed was also viewed as a champion of the post-apartheid transformation of the judiciary; judicial diversity became a consideration for judicial appointments by the Judicial Service Commission, which Mahomed headed, but he was also heralded for viewing transformation as a matter of progressive jurisprudence, as well as diversified demographics. However, observers generally agreed that the Supreme Court remained a conservative and white-dominated institution throughout Mahomed's tenure, He was hospitalised intermittently thereafter and died on 17 June 2000 at Linksfield Park Clinic in Johannesburg.' He was buried in Pretoria West; his funeral was attended by South African President Thabo Mbeki. On behalf of the Supreme Court, acting Chief Justice van Heerden apologised posthumously to Mahomed for the discriminatory treatment he had received during apartheid.

After Mahomed's death, a delay in appointing his successor led to rumours that the government had revived its proposal to restructure the apex courts. There is a statue in his honour at the Supreme Court of Namibia, and Justice Mahomed street in Brooklyn, Pretoria is named in his honour.

Personal life

He lived in Johannesburg with his wife, Hawo Mahomed (née'' Bava).