"Non-white political" lawyer retires from Bench

Bhisho High Court Judge Yusuf “Joe” Ebrahim remembers going into the offices of small-town white magistrates during the apartheid era to greet them before appearing in their courts on behalf of clients in criminal or civil cases.

But they rebuffed Ebrahim, presumably because they regarded him as a “non-white” political lawyer from the big city, Cape Town.

“I would go into the magistrate’s office to introduce myself. I would extend my hand and my hand would hang there. He wouldn’t take my hand because he saw me as a different colour or as an enemy because I was representing these people.”

He realised from discussions with colleagues in the National Association of Democratic Lawyers (Nadel) that his experience was not an isolated incident but the norm.

“My attitude in all the days that I’ve been practicing was to ensure that my conduct in court would give me the moral high ground. No matter what the other did, I wasn’t going to sink to their level,” says Ebrahim, who retires soon after 16 years on the bench in the Eastern Cape, in a career in the legal profession that has spanned 40 years.

When he took up his position on the bench, says Ebrahim, he was reminded of how he had been treated by other presiding officers.

“I couldn’t possibly act in the same way. I was also mindful of an unarticulated premise on the part of people who come from a privileged background that I was perhaps incapable of doing the work.

“I had a certain resolve that I was not going to allow myself to feel that I was on trial, that everyone was watching me to see what I could do. My resolve was to render service in the best possible way and in the manner which I felt was true to what I believed in.”

In this, he says, he was aided by the strict prescripts of South Africa’s progressive constitution, which make it easier for presiding officers to dispense justice fairly.

Ebrahim completed five years of articles while studying part-time towards a diploma in law from the University of Cape Town. He qualified in 1970, while working in the law firm of the late Dullah Omar, who became South Africa’s Minister of Justice after democracy. Later, he established his own attorney’s practice.

In 1996, Ebrahim was approached by Nadel to make himself available for a position on the Cape bench but, he says, he realised he was not going to get the nod from the Judicial Services Commission.

“I went to the interview and discerned early on, from the questions asked by Judge-President Gerald Friedman that he was not keen on having me on his bench. He thought my qualification was inferior because I had a diploma in law and not an LLB.”

As he walked from the hearing, Ebrahim was approached by then Ciskei Supreme Court judge-president Bobby Pickard and invited to act as a judge in this division, which was subsequently made a part of the Eastern Cape High Court.

Initially hesitant to accept the appointment because of the demands of his practice and perceptions of the former homeland, he later “came to accept that it would be good experience”.

Despite coming from radically different social and political backgrounds, Ebrahim and Pickard established an easy rapport immediately and Ebrahim talks highly of Pickard’s reception of him.

“Being in Bhisho broadened my knowledge no end because he gave me work that I thought  a senior judge should do but he thought I was quite capable of doing.

“The work that came across my desk would not have arisen if I’d been in the Western Cape because the more senior judges expected to do the more complicated matters, often for good reasons.”

In 1997, he was overlooked for a second time by the JSC for a seat on the Western Cape bench.

“(Being overlooked) sent a very clear message to me. My nomination by Nadel was a day late. No one else put in an application for the Western Cape seat. Theoretically I should have been invited for an interview. I said to Nadel they were backing the wrong horse (for the Western Cape).”

Shortly thereafter, a vacancy arose in Bhisho and Nadel successfully nominated Ebrahim again.

As an attorney, he also represented community activists, trade unionists and ordinary citizens targeted by the apartheid administration, across the country but especially in the Western and Eastern Cape. A notable case was his role as instructing attorney in the private prosecution for murder of policemen involved in ‘Trojan Horse' shooting incident of October 1985. The case was prosecuted in the Cape High Court on behalf of families of the victims.

He says that while clients under apartheid often chose legal representatives based on the attorney’s perceived political affiliation, “my clients didn’t see me as being in a particular political camp. I had relationships with people across the political spectrum of the oppressed – ANC, New Unity Movement, Azapo, PAC”.

One of the more painful moments in his personal life occurred while he was in detention in the mid-1980s when he received word that both his sons had also been detained for activism within student organisations.

“My own detention was an effective consequence of my political and legal work (but) it was very disconcerting to know my two boys were in detention as well.”

His experiences in detention have made him more understanding of others who find themselves in prison, regardless of the reason for their incarceration.

On transformation of the legal profession in the context of the controversial Legal Practice Bill, Ebrahim says the state has no place prescribing every aspect of the profession although government must find the means to get professional organisations to be receptive to transformation.

It was essential to get checks and balances in place “so that nobody can abuse any situation. We come from a past where people said ‘we know what has to be done and what we do is for your own good’”.

Ebrahim is concerned that excellence in the legal profession is being compromised by the “ideological trap” of an affirmative action policy that is preoccupied with making opportunities available without a concomitant focus on service standards to remedy the ills that exist.

“Some legal practitioners appearing before us certainly don’t have the skills to be representing people at this level,” he says, arguing that additional support such as mentorship programmes should also be given to newly-appointed judges.

“I would have appreciated a mentor when I came into the legal profession.

“I don’t know how anyone with limited experience can cope in a situation where they’re handling a busy motion court roll in a big centre. That is simply setting up people for failure.

“A judge has a lonely job – you sit there alone, it’s (solely) your decision and you suffer the consequences of whether it’s the correct decision or not.”

Ebrahim suggests that anybody younger than 45 should not “even consider coming to the bench”, adding that he has “taken flak in my own family” for his views on this.

“It’s not that I think young people are not capable of being judges but I think you need far broader life experience as well as the experience of practice.”

Ebrahim has a long track record in sport administration and community organisations, including Glenville, St John’s and Trafalgar cricket clubs; Heathfield Tennis Club; Wynberg & District Civic Association; Parent, Teacher & Student Association of Livingstone High School; SA Lawn Tennis Union; SA Table Tennis Federation and SA Council on Sport.

He was a founder-member, executive member, and vice-president of the Democratic Lawyers Organisation DLO in the Western Cape, which was the forerunner to the National Association of Democratic Lawyers  or NADEL.

He was also a trustee of the Legal Resources Trust from January 1997 to April 2009. - RAY HARTLE