Anton Harber OBITUARY
There will be many stories told of the work Ismail Mahomed, the chief justice who succumbed to cancer last week, did for his clients in his many years at the Johannesburg Bar. I want to tell of one where we insisted he not do any work.
Mahomed often represented the Mail & Guardian (then the Weekly Mail) in its fight against attempts to close it under the State of Emergency regulations of the 1980s. He relished these repeated battles to test Emergency powers before the court and rose to the height of his formidable eloquence and wit as he tried, tirelessly, to reign in the extraordinary powers given to the authorities.
A “one-man army against the State of Emergency”, is how he was described in You Have Been Warned, the book about The Weekly Mail during this period by the newspaper’s co-founder and co-editor, Irwin Manoim. The reason for this was simple: nobody was as relentless, as determined and as brilliant in using the legal system to challenge the Emergency.
He did it time and time again, never hesitating to rise to the challenge. He was not satisfied with taking on a regulation or two, but always insisted on attacking the legitimacy of the entire Emergency and the government which decreed it.
Every court document he produced started off with at least half-a-dozen carefully constructed arguments challenging the validity of the Emergency. I recall once questioning why he was repeating these, when many had been previously denied by the courts.
His response summed up his attitude: some of these arguments may have failed before, but he knew they were fundamentally sound. If he reworked them a little and made them just a little clearer for the unfortunates who sat on the bench, one of them would eventually succumb to the force of his impeccable logic.
This was the Mahomed we knew; a lawyer to the core, with unfailing faith in the power of argument, logic, fact and precedent to win over his most formidable enemies.
On Christmas Eve in 1987, we had to call on Mahomed to help us respond to a warning from the government that they were considering closing the newspaper. We had a fortnight to reply to the threat.
Our nervousness about disrupting Mahomed’s holiday plans was misplaced. We had yet to learn what a workaholic he was. Within hours he was at his desk, poring through legal tomes and barking instructions to his team of attorneys and clerks, oblivious to their holiday plans – a scene which continued night and day for the two weeks.
At the end of it, he produced 110 pages of devastating argument. If you could forget you were in South Africa in the latter days of apartheid, you would have joined Mahomed in believing that there was no way that any sane person could withstand the strength and logic of his presentation.
And his rhetorical style legend: “The reasonable, rational and balanced reader,” he wrote, “…reads the newspaper as a whole, absorbing in a relaxed way the totality of the news, the commentary and the advertisements made manifest to him. To such a reader must not be attributed a myopic and obsessive and stuttering attention on some phrase in the middle of a lengthy analysis through which obsession everything else in the newspaper dissolves from his brain and his mind becomes singularly concentrated to the manner in which he could endanger the safety of the public.”
We never had any evidence that anyone in the government ever waded through this, let alone understood it, but something worked and the paper was not closed down that time around.
The next time we received an official warning and closure seemed inevitable, we had lost our faith in the value of such intellectual argument. We met with Mahomed to ask him not to bother writing a lengthy new submission, as brilliant as his latest arguments might be. We asked him only to look over a brief letter we would write to the minister in response.
There was little point in arguing with the government this time, we said. The only thing that could save us was a political campaign of local and international condemnation of the action threatened against us. Mahomed was devastated. In his mind, if one did not keep one’s faith in logic, argument and debate, then one was giving up on a most basic tenet of democracy and civilisation.
He threw the full force of his argumentative powers into trying to talk us around. And it was not easy to withstand it. After all, if he – who had suffered decades of horrible discrimination in the courts and at the Bar, had kept his faith in legal argument, why could we not? If he, who had gone back time and again to argue for what he knew was right no matter what odds were stacked against him, was prepared to try again, why were we not?
For the sake of the law, he had been prepared to bear the humiliation of flying in and out of Bloemfontein on the same day to appear in the Appellate Division in the days when Indians were not allowed to stay overnight in the Free State. Who were we to turn our backs on the legal system? Rightly or wrongly, we stood our ground. The newspaper was closed for a month, but survived and returned to the streets.
But it was Mahomed’s moral conviction that stayed with us: the belief that you could not give up on fact, argument, debate and logic – and if you did, you were letting the system get the better of you. If an argument was right, then it was worth making, even if no-one listened. If logic was good, it would outlast the fact that the powers-that-be would not hear it.
He was the consummate lawyer, who allowed nothing to shake his conviction that what ultimately mattered was not winning or losing a court battle, but standing your ground when you believed you were right, holding to the principles of justice and expressing your view with eloquence and erudition.
Anton Harber was editor of the Weekly Mail/Mail & Guardian from 1985 to 1997