Former Minister Bathabile Dlamini sentenced

Friday, 1 April 2022 Nobody can be pleased to see a once powerful person humbled. But Freedom Under Law is gratified that its ongoing battle to clean up the mess at SASSA has borne some fruit. More importantly, today’s sentencing of former Social Development Minister Bathabile Dlamini, convicted of the crime of perjury, demonstrates that our justice system is capable of dealing fittingly with criminality in high places.

The sentence underlines the seriousness of the offence of which she was convicted. Essentially, perjury is lying to a court. That she, a minister, was untruthful was all the more deplorable. Had she succeeded in her dishonesty, and prevented the Constitutional Court from effectively resolving the social grants crisis, beneficiaries would have been even more vulnerable. Moreover, the elaborate and complex Court process would have been wasted — at taxpayers’ expense.

We can only trust today’s proceedings mark the end of this sordid saga.

Judith February Appointed Executive Officer

Johannesburg, 31 March 2022 –Tomorrow Judith February takes over at Freedom Under Law as its new Executive Officer. 

A lawyer and a respected governance specialist and analyst, she is well-known as a media columnist on politics and democracy in South Africa. 

FUL Chair Judge Johann Kriegler says: “FUL spent many months searching for a successor for Nicole Fritz, who was hard to replace. Our efforts have been rewarded: Judith February is exactly what we need. She joins us at a time when the Rule of Law is under unprecedented attack. Judith knows what this entails, and we’re glad to have her on board.” 

Judith February herself comments that “South Africa is at a defining moment for the Rule of Law. I look forward to the challenges FUL faces at this time and am certain that we will be able to contribute to further entrenching the culture of constitutionalism in our country.”

In Memoriam: Archbishop Emeritus Desmond Tutu

Like all in South Africa, Freedom Under Law mourns the loss of Archbishop Emeritus Desmond Tutu. His contributions to the life of our democracy – including having served on FUL’s advisory board – are legion. But it was his steadfast example of resistance to injustice, of solidarity with those most vulnerable, of love and compassion for all people, that will forever serve to remind us of what our democratic republic must aspire to and be. And so while we mourn the loss of this outstanding life we will seek to cherish and honour the remarkable legacy he leaves.

Hamba Kahle, Arch!

Judge Cachalia joins FUL Board

Following Judge Azhar Cachalia’s retirement from the Supreme Court of Appeal earlier this year, Freedom Under Law is proud to welcome him on its Board. Not only is he, of course, a scion of one of the most respected families in our country’s long history of resistance to oppression, but he himself played a significant role in our transition to democracy: a founder and leading member of the United Democratic Front, its long-term national treasurer, he paid his dues in terms of detentions and banning, and practised as a partner at the fabled activist firm of attorneys Cheadle, Thompson & Haysom. 

Post-transition he served as an adviser to the Constitutional Assembly, and as convenor of the team that drafted the new Police Act. As Secretary for Safety and Security he was chief policy adviser to the Minister of Safety and Security. He subsequently resumed legal practice, was appointed to the Bench and served as a judge for 20 years. Meanwhile he was active in the International Commission of Jurists, serving as an exco member and several terms as a commissioner. 

We in Freedom Under Law were delighted when Judge Cachalia accepted our invitation to join us and in the brief period of his membership it has become apparent that, quite apart from his eminence as a jurist, we have gained a vastly experienced and wise analyst of the South African socio-political, governmental and legal fields. We look forward to many fruitful years of work with him and trust his wife, Leila Patel, will lend him to us generously. 

Johann Kriegler


FUL Seeks To Appoint Executive Officer

Executive Officer

Johannesburg, Gauteng

Freedom Under Law

Freedom Under Law (FUL) seeks to appoint an Executive Officer. The Executive Officer reports to the FUL Board of Directors and is responsible for providing leadership and executing the strategy of the organisation. Together with the Board, the Executive Officer formulates the vision and overall strategy of FUL. It is envisaged that a strategic review planned for early 2022 will see a reorientation and possible expansion of FUL’s role. It is hoped that the newly appointed Executive Officer will help drive this process and the resulting vision.

About Freedom Under Law

FUL aims to promote democracy under law and advance understanding of and respect for the rule of law and the principle of legality in Southern Africa.

It aims to secure and strengthen the independence of the judiciary by promoting the selection, training and advancement of a judiciary appropriate to the needs of constitutional democracy.

[See the website for further details].

Duties and Responsibilities of the Executive Officer

Communicates and executes the organisation’s strategy on a day-to-day basis

Leads and helps formulate appropriate legal interventions

Raises funds.

Oversees the financial and human resources administration of the organisation as its sole employee.

Ensures communication and, where appropriate, collaboration with internal and external stakeholders.

Formulates and participates in advocacy campaigns intended to promote FUL’s litigation initiatives or otherwise profile rule of law and constitutional concerns.


A law degree and/or post-graduate qualification in law.

Approximately ten years relevant experience in a law-related field.

Knowledge of and familiarity with South Africa’s public interest law sector.

Ability to interact and communicate constructively with a broad range of partners from persons in government, donors, legal professionals and civil society.

Public relations, media liaison and advocacy skills as the public face of FUL.

Applications should be directed to or and will be accepted and assessed on a rolling basis but should be submitted by 1 December 2021.

Nicole Fritz: JSC interviews: We should all be concerned about the exclusion of talent

Last week saw a marathon sitting of the Judicial Service Commission (JSC) in order to interview candidates for appointment to South Africa’s various courts. All eyes however were likely drawn to the first day’s proceedings when the JSC interviewed candidates for appointment to South Africa’s highest court – a process it was forced to undertake a second time after the Council for the Advancement of the South African Constitution (CASAC) had challenged the earlier April interviews on the basis that these and their outcomes were procedurally unfair and unlawful.

But while the conduct and demeanour of the JSC at the Monday interviews was plainly different from that on display during the April interviews, this rerun of the process produced the very same outcomes: the same five names were shortlisted and forwarded to the President for him to make a selection of two for appointment to the Constitutional Court.

That the previously defective process produced the very same result as Monday does not on its own mean we should dispute these latest proceedings. And it must be said at the outset that several on that shortlist of five are entirely deserving of their positions.

If you were watching the proceedings you could’t not to be struck by the considerable talents of those who made themselves available for appointment. There were moments too of poignancy. Judge Jody Kollapen lyrically referenced his parents, a waiter and a seamstress, and remarked that it would have been impossible to imagine growing up that he would one day be offered the opportunity of ascending to South Africa’s highest court.

That is true of the majority of those who made themselves available on Monday, underlining that even in appointing those tasked to realise justice in South Africa today there is a justice to be served.

It is a peculiarly South African reminder, making us marvel at our journey but also leaving us queasy – for the extensive suffering and hardship that apartheid imposed but also for the inordinate loss it inflicted by depriving this country of so much talent and skill.

And it is for the exclusion of talent and skills that we should be most concerned about Monday’s proceedings. For a start, one of the original eight candidates interviewed in April chose not to make herself available for Monday’s proceedings. The treatment to which Judge Dhaya Pillay was subject in April was so egregious – including that the Chief Justice put to her a version of events which seemed designed only to politically impugn her and to which she could not possibly be fairly expected to respond – that it is perfectly understandable if she chose to exempt herself for this reason. But her absence was an important underlining that when constitutional bodies fail to discharge their functions properly, as was the case of the JSC in April, harms cannot always be undone.

Pillay’s absence also meant that a potential pool of three female candidates from which new appointments to the Constitutional Court might be made was whittled down to two.

However it is the exclusion of David Unterhalter (to whom I was once, long ago, briefly married) and Alan Dodson from the shortlist ultimately compiled by the JSC that has invited most criticism. That is particularly so when referenced against the almost inexplicable inclusion of Judge Bashier Vally who seemed to show at every turn his unfitness for elevation to our highest court – demonstrating irascibility towards commissioners, discourtesy to his judicial peers, and blame of his subordinates.

That interview performance and subsequent inclusion made it appear that the JSC would have preferred any candidate, bar another white male, over Dodson and Unterhalter.

Neither Dodson nor Unterhalter is just any candidate. Both have had exceptionally distinguished legal careers, serving respectively on internationally appointed bodies concerned for land and property disputes and international trade disputes. That neither man’s resume seemed worth putting before the President, that their expertise and skills should be thought of little significance to the Court, seems extraordinary. 

I am conscious that discussions of this sort can be heard to suggest that it is white men who offer the intellectual acumen and rigour and Black candidates and women who offer the other attributes we might want on the bench: most significantly an ability to represent all in our society and the ability to meaningfully relate to and reflect the lived experiences and circumstances in which so many South Africans find themselves. The divide is false as is any sense that in making appointments to the bench, whether at the Constitutional Court or lower court level, we need too make a choice between commitment to transformation and legal skill and expertise. The history of our country and indeed our highest court prove that white men have no monopoly on intellectualism, on black letter law, on legal interpretation.

But the opposite must also be true: that white men can embody a jurisprudential vision that will allow meaningful transformation and the realisation of the rights and values enshrined in our Constitution in the deepest, most impactful way.

South Africa’s Constitution enjoins that we are “united in our diversity”. What does that mean when we appoint men and women to our highest court, the ultimate guardian of that constitution. There have been few times in our country when it has seemed so important to seriously grapple with this question. The President has yet to make his pick of the two Constitutional Court judges from the shortlist of five. The JSC will very soon likely have to compile a further shortlist for him when Judges Khampepe and Jafta officially retire. And if the next chief justice is appointed from the ranks of already sitting Constitutional Court judges, there will be a further vacancy.

That is five of eleven seats on the Constitutional Court that potentially stand to be newly filled. It represents a potential reshaping of the Court. There is ample opportunity to we make available to the Court the greatest possible array of strengths, expertise and experience.

It is worth remembering that the Constitutional Court in its initial iterations was universally acclaimed here and abroad and while there were many judicial superstars on the Court, the undisputed star was the Court itself – the interplay and cohering of a diverse set of jurists and their very rich array of expertise, skills, life experience and attributes.

We must look to ensure that this is again true. 

FUL Supports Opening of Candidate Registration for Local Elections

The Constitutional Court has recently been petitioned to make orders relating to the upcoming municipal elections. The latest application by the Democratic Alliance asks the Constitutional Court to set aside the Electoral Commission’s decision to reopen candidate registration.

Freedom Under Law maintains in its submissions as amicus curiae (friend of the court) that the Court is being used as a political boxing ring with each party deriding the others as well as the Electoral Commission and attempting to us the Court for its own political ends. This is to be deplored. The Court, as the ultimate guardian of the Constitution, is to be treated with the respect and deference that it deserves rather than as an arena for bald political contestation.

FUL also maintains that the Electoral Commission’s decision to reopen candidate registration is lawful and rational. Ordinarily in electoral administration, where candidacy is dependent upon inclusion in the voters’ roll, registration of candidates logically follows after the voters’ roll has been updated, challenged and verified, i.e.“closed” in electoral jargon.

This is essentially commonsense. The voters’ roll is the authoritative record of all the enfranchised voters in a particular voting district, and is therefore the authoritative source of reference in determining whether a particular candidate is resident in that voting district. If the voters’ roll is amended, the names of candidates may have been deleted and those of potential candidates may have been added. Names of individuals may also have been moved from one voting district to another, thus— where a residential qualification is required, as in our local government elections—allowing or disallowing those individuals to stand as candidates in particular voting districts. Registrability of candidates is determined against the latest closed voters’ roll. This means that if you change the roll, you have to reopen candidate registration.

FUL’s Intervention in Application to Postpone Local Elections

The Constitutional Court recently heard argument from a number of parties in a vigorously contested constitutional case. The Electoral Commission is asking the Constitutional Court to allow a departure from the constitutionally set time-limit for the country’s local government elections that are currently scheduled for 27 October 2021.

The case has obvious political implications, but Freedom Under Law is concerned only with a constitutionally crucial objection to any attempt to circumvent the time-limits laid down by the Constitution for our elections. Certainty that elected representatives will be called to account at fixed intervals is an essential component of representative democracy. Tampering with the constitutionally fixed intervals between elections, for whatever reason, erodes their legitimacy – it is to disrupt the heartbeat of our democracy.

It is therefore no surprise that the Constitution makes no allowance for bending the rules regarding electoral timelines. Nobody, not even the Constitutional Court, has the power to depart or allow departures from the clear limits set by the Constitution. Either the Constitution must be amended to grant the Court such power – or the Constitution must be complied with.

Even if the Court could bend the Constitution, as a matter of constitutional principle it should not. Hundreds of elections have been held around the world during the pandemic. Just this past weekend presidential elections were successfully held in Zambia.

But ultimately the question is not whether it would be appropriate to postpone the elections, but whether the Constitutional Court has the power to do so.

Freedom Under Law will be arguing that everyone – the electorate, the political parties, the Electoral Commission and the Constitutional Court – must simply obey our Constitution. 

Judge President Hlophe Matter

After a period of thirteen years since the then judges of the Constitutional Court directed a complaint to the Judicial Service Commission (JSC) alleging that Western Cape Judge President John Hlophe attempted to interfere with and influence their consideration of cases involving then Deputy President Jacob Zuma, the JSC finally held in August 2021 that Judge Hlophe is guilty of gross misconduct.  The process has now been referred to the National Assembly for it to begin the process of impeachment.

FUL has intervened at various stages in this process – in 2012 successfully obtaining a Court order to review and set aside an earlier decision on the part of the JSC not to proceed with the complaint against Judge Hlophe. Now that the JSC has finally determined that he is guilty of gross misconduct, Judge Hlophe is seeking to have that decision set aside and for the National Assembly to be interdicted from proceeding with the impeachment process.

FUL successfully applied to be joined as a party in the application brought by Judge Hlophe and will oppose his application. The review application is scheduled for hearing in mid-February 2022.

What Criteria Does The Judicial Service Commission Use For Appointing Judges?

22 September 2021

The Judicial Service Commission (JSC) has recently been the focus of justifiable criticism, so much so that a constitutional challenge to the April round of interviews led to an ignominious capitulation by the JSC, without even an oral hearing of the matter.

In this instance, the Council for the Advancement of the South African Constitution (Casac) argued that the manner in which some members of the JSC behaved during the public interviews of candidates for judicial office, and also the manner which characterised their discussion of the candidates, rendered their recommendations irrational. Sadly, such aberrant conduct was not confined only to the party-political members of the JSC; indeed, some of the most objectionable interventions emanated from those representing the legal profession.

How has the JSC fared generally in its vital role of appointing judges? Despite some moments of controversy and some glaring and inexplicable anomalies, most would agree that it has done, until recently, a reasonable job in the execution of its appointments mandate. In particular, the JSC has vigorously pursued the demographic transformation of the judicial corps, in fulfilling its constitutional obligation to appoint “any appropriately qualified woman or man who is a fit and proper person” while simultaneously “[considering] the need for the judiciary to reflect broadly the racial and gender composition” of the South African population. 

So the JSC had by 2013 already ensured that more than 60% of our judges were black, and over 30% were women; although leadership positions were still almost exclusively filled by men. An important contributor to this radical but overdue and entirely justifiable “recomposition” of the Bench was the widening of the pool from which judges were appointed, to include attorneys, law academics, and magistrates.

What criteria does the JSC use to make its decisions? Beyond the constitutional provisions set out above, three attempts have been made to interpret those requirements, situated within the context of the administration of justice and the practices and ethics of the legal profession in this country. When the JSC sat to recommend the appointment of justices to the first Constitutional Court in 1994, the following characteristics were highlighted:

  • Independence, open-mindedness, integrity and courage;
  • Diversity, empathy and sensitivity;
  • Intellect;
  • Fairness, judgment and perceptiveness; and
  • Stamina and industry; and vigorous internal debate.

In April 2009, the following statement was issued on behalf of the JSC: 

 “There are a wide variety of factors that are taken into account by the Screening Committee before deciding to include or exclude a particular nominee. These include but are not limited to the recommendation of the Judge President, the support of the candidate’s professional body, the need to fulfill the constitutional mandate… to ensure transformation of the Bench… the particular needs of the division concerned, the candidate’s age and expertise, including whether he/she has served as an acting judge in the division or at all, and the relative strengths and merits of the various candidates in relation to one another.”

Chief Justice Ismail Mahomed’s 1998 guidelines for appointability were subsequently subsumed within an official pronouncement during Chief Justice Sandile Ngcobo’s term as chair of the JSC, as follows:

At its Special Sitting held in Johannesburg on 10 September 2010, the Judicial Service Commission resolved….  to publish the criteria used when considering candidates for judicial appointments. This decision is in line with the JSC’s principle that the process of judicial appointments should be open and transparent to the public so as to enhance public trust in the judiciary.

 The following criteria are used in the interview of candidates, and in the evaluation exercise during the deliberations by the members of the Commission:

 Criteria stated in the Constitution

  1. Is the particular applicant an appropriately qualified person?
  2. Is he or she a fit and proper person, and
  3. Would his or her appointment help to reflect the racial and gender composition of South Africa?

Supplementary Criteria

  1. Is the proposed appointee a person of integrity?
  2. Is the proposed appointee a person with the necessary energy and motivation?
  3. Is the proposed appointee a competent person?
    (a) Technically competent
    (b) Capacity to give expression to the values of the Constitution
  4. Is the proposed appointee an experienced person?
    (a) Technically experienced
    (b) Experienced in regard to values and needs of the community
  5. Does the proposed appointee possess appropriate potential?
  6. Symbolism. What message is given to the community at large by a particular appointment?

What does it mean to be “appropriately qualified” and “fit and proper”?  A decade ago, Cowen argued that “appropriately qualified” included forensic skill, intellectual capacity, writing and analytical abilities, knowledge of the law and of courtroom procedures, language skills, capacity for hard work, the ability to manage a courtroom, and breadth of professional experience. It is hard to disagree with this set of requirements.

It is also generally agreed that being a “fit and proper” candidate for judicial appointment requires at least: 

  • A demonstrated commitment to independence (both from party-political and personal interests), fairness, and impartiality;
  • An unquestioned record of professional and personal integrity;
  • A judicial temperament (including a degree of humility, courtesy, self-restraint decisiveness, and collegiality); and
  • A resolute commitment to the values of the Constitution (including the rights to dignity, equality and freedom, respect for diversity, a degree of compassion and empathy, a critical respect for the separation of powers, and a commitment to the transformative goals of the Constitution).

Some may also expect aspirant judges to have some grasp of theories of adjudication, especially as the JSC now seems to have elevated service as an “acting judge” to the level of a criterion.

As regards the constitutional imperative for the demographic transformation of the judiciary, the practice of the JSC thus far seems to express this only in terms of numbers of women or black judges appointed. It is imperative that this requirement must also include the judicial philosophy and life experience of candidates, to ensure that all those appointed are committed to socioeconomic transformation and justice.

Beyond the criteria against which the candidates should be assessed, a fair and transparent process is essential for public confidence in judicial appointments. This means that interview questions must be linked directly and clearly to the above-listed criteria. In addition, the JSC should ensure that each candidate is treated in a broadly similar fashion, especially with regard to the length of the interview, and an equivalence of questioning. In this regard, the role of the Chief Justice as chair of the JSC is critical; part of the reason why the JSC has agreed to rerun the April interviews for Constitutional Court vacancies must be because of failures in this respect. In addition, the necessity to give some reasons for the JSC’s recommendations requires a reasonable degree of fairness of consideration of each of the candidates, and a rational level of justification for decisions. Again, the record of the deliberations in April failed this test of minimal fairness.

The JSC is set to hold interviews within the next few weeks for the appointment of at least four Constitutional Court justices, as well as candidates for appointment in other superior courts. It will also, in a separate process, interview candidates for the Chief Justiceship, where additional criteria will apply. Adherence to the highest standards of respectful professionalism and fairness should be demanded of every commissioner.

This piece was first published in the Daily Maverick on the 21st September 2021, as a collaborative op-ed by CASAC, FUL and Judges Matter.