It gives me great pleasure to be here this evening; I thank the President and Council of the KwaZulu-Natal Law Society for inviting me to deliver this inaugural lecture in memory of a giant of the legal profession, former Chief Justice Ismail Mahomed. We celebrate one of the sharpest minds of the legal profession, a fearless fighter for justice, an outstanding jurist who was always motivated by a commitment to the recognition of human rights for all. To me, he was also a dear friend, mentor and an esteemed colleague.

I speak tonight on "Living Human Rights in South Africa.". It is appropriate to discuss the theme while at the same time commemorating former Chief Justice Ismail Mahomed, because he devoted his life and employed his considerable skills and remarkable vigour to champion the protection and advancement of human rights in South Africa and the African continent. He did this with an unflagging intensity, when he was a member of the Bar, when he was elevated to the High Court Bench and later to the Supreme Court of Appeal, when he served as Deputy President of the Constitutional Court and lastly as Chief Justice of this country. Everywhere, as a practicing lawyer, as a ludge and as the leader of the country's judiciary, he left indelible footprints in the form of a rich jurisprudential legacy. This is a legacy marked by a fierce discipline focused on his vigorous defence and promotion of human rights. This is what continues to inspire us to pursue the meaning of what it is to live human rights in South Africa.

I speak tonight to you, women and men who are involved or are interested in the practice of law. I will briefly touch on issues that, I believe, are critical for South Africa at this time. I do so because I believe that as South Africans, we still regard the constitutional route we chose in 1994 as the best option for our country and its people. 1994 was no idle transition; it was the result of a conscious choice and commitment that we would henceforth live a new life and be governed in a new way; it was a choice that we would confront and address the ills of our society through the instruments of democracy and constitutionalism.

My speech is concerned with how we today, faced with the realities of everyday South African life, are, or should be using those instruments. In this way, I hope to hold up a mirror to enable us all to decide for ourselves whether or not we are still on course, bearing in mind our commitments of 1994. In short, the question at the end will be: are we still living human rights? And are we making our contribution to ensure the ideals we chose in 1994 become a reality for all?

The significance of the journey we embarked on 1n 1994 was described by Judge Mahomed in his characteristic inimitable style, when he contrasted the past we were leaving behind and the future we were embracing. That was indeed his theme. For him change and transformation could not be taken for granted. Instead he regarded himself as the agent for change. This is what he said in 1991 in his opening remarks to the Convention for a Democratic South Africa (CODESA) which he co-chaired. (Apart from the exhilarating artistry of his erudition, I would like you to note the sheer excitement with which he was already embracing the new constitutional dispensation that was about to be born). He said:

" ...It is a truly momentuous occasion as our society attempts for the first time in its troubled history squarely to face the rea real truth of our existence in Africa. The cosmic forces have intriguingly conspired to bless our beloved country with potentially ... material riches, with wondrous ,opportunities for human creativity and brotherly love, and with truly exciting possibilities in the evolution of spiritual condition of those destined to live and share in this country.

But what was a potentially glorious historic romance, has been distorted into a major modern tragedy by the malignancy , the obscenity and the cruelty of apartheid and institutionalized racism which has separated and demeaned us and isolated us from the mainstream of the civilized world.

But the moment of truth has anally arrived for all of us. We can no longer avoid or delay our tryist with our destiny.

We should seek to meet it with courage, with eagerness and with joy, by proclaiming, before the sun sets on this auspicious day, our irreversible commitment to a non-racial, democratic and caring new South Africa, which can hold its head high among the free and civilized nations of the world.

A clear commitment to structure our society with all deliberate speed on the constitutional foundation of this basic truth shall begin to set us anally free from the shackles of fear, of anxiety, of greed, of insecurity, of poverty and of anger which have perpetuated our needless tragedy for so long..."

Then later, when the new dispensation was beginning to unravel, when the Constitutional Court was considering its landmark judgment in the death penalty case which was the Courts first case, he could not hide his exuberance at the fact that the country and its people were operating under a new Constitution. This is how he painted the picture of where we were:

"All Constitutions seek to articulate, with differing degrees of intensity and detail, the shared aspirations of a nation, the values which bind its people, and which disciplines its government and its national institutions, the basic premises upon which judicial, legislative and executive power is to be wielded, the constitutional limits and yjr conditions upon which that power is to be exercised, the national ethos which defines and regulates that exercise, and the moral and ethical direction which that nation has identified for its future. In some countries, the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South Africa 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 and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which repudiates and the future to which it seeks to commit the nation is stark and dramatic..."

For Judge Mahomed, the difference between what was good and noble on the one hand and what was ugly and indefensible on the other was quite stark. He embraced the former with palpable and boundless enthusiasm; He detested the latter deeply and invariably gave colourful and graphic expression to his rejection of the divisiveness and inequalities imposed on us all in the past.

He embraced the new Constitution not for itself, but because he saw possibilities that could be achieved through it. He realized that the achievement of the ideals embodied in the Constitution would not follow automatically and that the advent of a new constitutional order does not translate automatically into the recognition, enforcement and protection of human rights.

What does this all mean to us? It means that it is correct for us to depart from our comfort zones and to ask ourselves the hard question: Does our life and work contribute maximally to the enjoyment of human rights for all?

Our history tells a story of deep divisions characterized by gross human rights violations, brutality and strife in the conflict between a minority government which reserved control for itself and a majority who fought relentlessly in opposition to that control. Human rights became the primary casualty of this struggle for equality and freedom because the laws were designed to counter the effectiveness of such opposition by any means necessary. 1994 therefore marked the dawn of an era in South Africa, characterized by the entrenched protection of human rights.

Human rights cannot realistically exist in a theoretical vacuum - they garner their content, support and meaning from the courts and other institutions where these rights are interpreted and applied. From there they must radiate to the different levels of government to independent institutions established to promote them and to all the people of South Africa. All have a duty to work proactively towards promoting the culture of human rights. They also have a duty and a responsibility to ensure that the institutions that protect and promote human rights are kept intact, rather than weakened, villified and subjected to ridicule.

It is in this context that we place emphasis on the Rule of Law and the role of a dependable and independent judiciary and the courts. Courts are constitutionally bound to ensure that fundamental rights are protected and promoted. Indeed, all persons are entitled to the protection afforded by the law against unlawful invasions of their rights. Remove that capacity from the courts in whatever way, the people and the democratic state are left unprotected. Put another way, Ii the rule of law is eroded through action that threatens to compromise the integrity of the judiciary and the judicial process, all constitutional rights and freedoms are undermined.

Why are we so concerned about human rights? The past has played an important role in shaping our future. The past was characterised by division, conflict, disempowerment and gross violations of human rights. Our founding mothers and fathers were in no doubt that this new nation must have its foundations built on certain values, and the promotion and recognition of human rights for all became central to all this. The preamble to the Constitution encapsulates this: In the name of "We the people ..," it specifically speaks of the belief that "South Africa belongs to all who live in it, united in our diversity ..."; it expresses a commitment to "[h]eal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights ..."

Our Constitution not only entrenches fundamental rights - it also establishes the institutions responsible for their protection and promotion. These institutions - the Public Protector, the South African Human Rights Commission, the Electoral Commission, the Auditor-General, the Legal Aid Board, to name a few - play a critical role in our constitutional democracy and must also function efficiently to execute their mandates, particularly to the marginalized and vulnerable groups in society. They must be the obvious "go-to" institutions if an issue falls within their jurisdiction. Albie Sachs has said, "human rights are for all and we must seek a set of principles and procedures that will guarantee dignified and secure lives for everybody".

What bears repeating is that the integrity of the judicial process is fundamental to the rule of law and fundamental to living human rights in South Africa. It stands to reason that a weak, unprincipled judiciary will be powerless to stem a tide of human rights violations and to keep state power in check. It is accordingly in everybody's interest that the courts should be enabled and protected so that they can do their work properly and impartially, without fear, favour or prejudice in protecting these rights. At the same time, we should demand the highest ethical standards and the utmost competence and integrity among members of the judiciary.

Thus, while judges are by no means above reproach, any criticism leveled at the judiciary and the manner in which it conducts its affairs must be done in good faith and not in a manner that subverts the values of our Constitution. The public and the media may, and in fact should, comment and critique the decisions of the judiciary, but these criticisms should not degenerate into uninformed and unfair personal attacks. Comment and criticism must be informed and thoughtful, not reactionary and alarmist, because that would tend to undermine the rule of law which is so fundamental to the stability of our democracy. Such criticism also has the potential to weaken confidence in the judiciary; and without public confidence, the judicial system loses its legitimacy and cannot operate effectively.

What about the legal profession as a whole? It follows that we must expect the same standards of competence and discipline from the legal profession, since it is the cradle from which the judiciary develops and is nurtured. It is also best placed to rebuff attempts from elsewhere to impugn the integrity of the judiciary in order to weaken it. You, my hosts, are best placed also to educate and enlighten the public about concepts such as the rule of law and the independence of the judiciary.

It is heartening to note that the legal profession in particular guards jealously and vigilantly against all threats to their own independence. This is important not just to yourselves; a weak and unprincipled legal profession will inevitably lead to a weak judiciary.

Let me, in conclusion, give the last word to Chief Justice Ismail Mahomed. Addressing a conference of the International Commission of Jurists in Cape Town in 1998, he said:
"the independence of the judiciary is crucial....judges must consciously accept the risk that their judgments in crucial areas may be subject to vigorous attack and criticism. Judges therefore have no right to demand any kind of protection from the same kind of vigorous criticism to which they subject the contentions of behalf of litigants...what they are entitled to demand and do demand is such that it must be in good faith; that it does not impugn their dignity or bona fides and above all that it does not impair their independence, because judges themselves would not be the only victims of such impairment. The constitutional covenant itself would mortally be wounded and the civilization which it seeks to mediate would dangerously be imperiled. It is for this reason that every organ of state and every component of civil society has a vested interest in the protection of the independence of the judiciary. Subvert that independence and you subvert the very foundation of a constitutional democracy."

I thank you.