Welcoming address by the Deputy Minister of Justice and Constitutional Development, The Hon JH Jeffery, MP at the 2011/2012 Ismail Mahomed Law Reform Essay Competition Prize Giving Ceremony Constitutional Court, 19 July 2013
Honourable Justice Lex Mpati, the President of the Supreme Court of
Mr Edward Beerwinkel of Juta
Winners of the competition,
Officials of the Department of Justice and Constitutional Development and the SA Law Reform Commission,
Members of the legal fraternity,
Ladies and gentlemen.
I would like to welcome you all to this auspicious occasion. It is indeed
a pleasure to be with you tonight at this ceremony named after of one
of the most astute legal minds in the history of our country, the late
Chief Justice Ismail Mahomed.
In a career of some thirty-five years as an advocate, Ismail Mahomed appeared in numerous trials on behalf of some of the leading figures in the liberation struggle. Like other members of the Johannesburg Bar such as George Bizos, Arthur Chaskalson, Bram Fischer and Joe Slovo, he helped lead the challenge in the courts to the injustice of apartheid. He dedicated his life’s work to the achievement of just, fair and equitable society.
Because of his reputation for impartiality and fairness, he was accepted as co-chairperson of the multi-party constitutional negotiations at CODESA. His commitment to the supremacy of the Constitution was unwavering. President Mandela often told the story of how Justice Mahomed warned all politicians gathered at those negotiations that, as judges, they would fearlessly uphold the Constitution; and they did. He contributed much to the development of jurisprudence, not only in South Africa, but also in our neighbouring SADC countries.
When we reflect on the life of Ismail Mahomed, it gives one some sense of how far we have come as a nation in achieving the open, just and fair society that he had fought for. For me, the most striking memory of Ismail Mahomed was to hear him reflect on how, even though he grew up in Pretoria, he could not be admitted to the Pretoria Bar Association, as this was reserved for whites only. He could, however, join the Johannesburg Bar Association, but could not have chambers, due to the provisions of the Group Areas Act.
Justice Ismail Mahomed acquired “first status” in almost every arena: He became the first Black person to be appointed as a judge in 1991, the first Black judge of the Appellate Division in 1993 and he went on to become the first Black Chief Justice of the Republic of South Africa in 1997. He was one of the first Constitutional Court judges and authored the first judgment of the Constitutional Court in the case of State v Makwanyane in 1995 where the death penalty was held to be unconstitutional. He was the first chairperson of the Judicial Service Commission which he helped to establish. Last but not least, he was the first Chairperson of the South African Law Reform Commission appointed post 1994. I could go on speaking about this great legal mind but we do have a special guest, Judge Lex Mpati, whom I hope will share some thoughts about Justice Mahomed and the competition.
I would like to extend a special welcome to the winners of the competition and the students who participated who are here with us tonight. At previous ceremonies we have had the pleasure of having Justice Mahomed’s family with us, but this year they have apologised as the date of the ceremony comes during the Ramadan fasting period. Mr Anver Mahomed, who has always represented the family at this gathering, sends his good wishes to the South African Law Reform Commission (SALRC), Juta and the winners and apologies for not being able to be with us tonight.
The SALRC, in partnership with Juta Law, started the Ismail Mahomed Law Reform Essay Competition in 1999 in honour of the late Chief Justice Mahomed. The Ismail Mahomed Law Reform Essay Competition is aimed at encouraging critical legal writing by students and to generate new innovative ideas for law reform. The ideas should be aligned to South Africa’s priorities as a developmental state and be aimed at keeping the law abreast of the developments in society and in tune with the needs of South Africa’s diverse population and national policy priorities.
Ismail Mahomed dedicated his life to bring about social change. In the 1998 South African Journal of Human Rights Prof Karl Klare, a leader in the critical legal studies movement, described our Constitution as a transformative document. By 'transformative constitutionalism' he meant 'a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming a country's political and social institutions in a democratic, participatory, and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through nonviolent political processes, grounded in law.'
In essence, we can only bring about social change and build a just, fair and equitable society, if we have the necessary legal framework and legislation to allow us to do so. The law ultimately is the mirror that reflects the character of our society. It has to meet the demands and the specific needs of an ever-changing society. Many would say that there is a perception that the law is cast in stone, rigid and inflexible. This is not true. The law is not static, it is a dynamic and vibrant discipline, constantly adapting to serve the needs and address the concerns of its society.
And this is why the role of the SALRC is so vitally important. The SALRC has an important role to play in undertaking research with reference to all branches of law of the Republic in order to make recommendations for the development, improvement, modernisation or reform of the law. It has to provide government with pragmatic advice, backed up by extensive and ground-breaking research and proper public consultation. Law reform becomes the catalyst that turns the views and wishes of society into practical application, it is pivotal to the improvement and renewal of our legal system.
I am not sure if everyone is aware that the President announced, today,
the appointment of Judge Mandisa Maya as Chair of the Commission and
Judge Jody Kollapen as Deputy Chair. The remaining Commissioners
will be appointed shortly.
The SALRC also seeks to encourage legal scholarship and public dialogue on the link between law reform, human rights and the rule of law. One of the Commission’s most exciting initiatives is this competition. The 2011/2012 competition was launched in February 2012 and the closing date for receipt of essays was 30 September 2012. The response from law students and faculties was overwhelming. The SALRC received 20 essays in the LLB category and nine essays in the LLM category. The essays received were from students registered at the universities of Cape Town; KwaZulu-Natal; Limpopo; Pretoria; Stellenbosch; South Africa; Varsity College; Western Cape; and Witwatersrand.
The essays were assessed by a Panel of Adjudicators consisting of Professors Cathi Albertyn (Wits University, former Part-time Commissioner of the SALRC and Chairperson of the Panel), Vivian Lawack (Dean of the Faculty of Law: Nelson Mandela Metropolitan University), Managay Reddi (Dean of the Faculty of Law: UKZN), and Pamela Schwikkard (Dean of the Faculty of Law: UCT and former Part-time Commissioner of the SALRC). The SALRC and Juta are indebted to the panel for assisting with the assessments. The panel unanimously agreed that the 2011/2012 Ismail Mahomed Prize for Law Reform should be awarded only for the LLB category and there is one winner and three runners up.
Tonight we are honoured to have with us the honourable Justice Lex Mpati, who will deliver the Key Note address and also pay tribute to the winner and the three runners up. To the winners, remember the words of President Barack Obama who, in his book Dreams of my Father, writes that:
“The study of law can be disappointing at times, a matter of applying narrow rules and arcane procedure to an uncooperative reality; a sort of glorified accounting that serves to regulate the affairs of those who have power – and that all too often seeks to explain, to those who do not, the ultimate wisdom and justness of their condition. But that is not what the law is. The law is also memory; the law records a long-running conversation, a nation arguing with its conscience.”
I have read the four winning essays and I have no doubt that our country possesses some great young legal minds, minds that will contribute to the legal profession, to our courts and to our law so as to continuously build the type of society that Ismail Mahomed dedicated his life to. He would be proud.I thank you.