Freedom Under Law: Tribute to the Rt. Hon. The Lord Steyn, P.C

4 December 2017

Freedom Under Law regrets that the founding Chair of its International Advisory Board, Lord Steyn, died in London on 28 November 2017.

Johan van Zijl Steyn was born at Stellenbosch in 1932, his father a founding member of its Faculty of Law. His grandfather was a Boer fighter, imprisoned in the camp at Green Point, Cape Town and exiled to Sri Lanka, where he and four others escaped by swimming ashore from their ship in the notoriously shark-infested Colombo Harbour. They returned via Russia, Europe and what is now Namibia to their astonished fellow commando-members in the Free State. It is said that the latter refused to believe them, given the flatness of the earth.

Lord Steyn studied law at Stellenbosch, and as a Rhodes Scholar at University College, Oxford. Returning to South Africa, and to practice at the Cape Bar, he took silk at the age of 38 in 1970. In later years, he looked back on what is to be learnt from how a government without effective constitutional limitation on its exercise of power “by and large could and did achieve its oppressive purposes by a scrupulous observance of legality. It made an indelible impression on me.”

In 1972 he left South Africa. He began practice anew in London. Quickly he overcame the disadvantages of an unconnected outsider and built up a leading commercial practice. In just six years he became a Queen’s Counsel, and in January 1985 he was offered an appointment by the Lord Chancellor to the select ranks of the Commercial Court. Self-deprecatingly he ascribed his appointment to a simple error in persona: whenever the Lord Chancellor, then Lord Hailsham, met him he called Steyn “Charles”.

After seven years he was elevated to the Court of Appeal and very shortly thereafter was appointed a member of the Judicial Committee of the House of Lords and a member of the Privy Council.

Lord Steyn is widely regarded as one of the most influential and creative judges of our time. He delivered leading judgments covering a wide range of legal fields. Of course his reputation as a pre-eminent commercial lawyer made this likely in the areas of contract, arbitration and international trade. So, too, his contribution to greater legal harmonisation in Europe, drawing in his own life on scholarship and practice in both civil law and common law systems.

But it is his contribution to public law – that which determines the relationship between citizens and the State – which was least expected and has been most marked.

In the Pinochet case, the House of Lords was confronted with a claim to sovereign immunity – the immunity from prosecution in a foreign country claimed by a head of state. Following the military coup led by General Pinochet in Chile in 1973, more than 4 000 individuals had died or disappeared, invariably in the hands of the secret police. Lord Steyn rejected the ruling of a lower court that there is no justification for reading any limitation based on the nature of the crimes committed into the immunity which exists.

He held: “If a Head of State orders victims to be tortured in his presence for the sole purpose of enjoying the spectacle of the pitiful twitchings of victims dying in agony (what Montaigne described as the farthest point that cruelty can reach) that could not be described as acts undertaken by him in the exercise of his functions as a Head of State … The normative principles of international law do not require that such high crimes should be classified as acts performed in the exercise of the functions of a Head of State.”

He also refused to apply the act of state doctrine to acts condemned as high crimes by customary international law.

Lord Steyn’s contribution to the law is not confined to his judgments. He has written a series of papers and delivered public lectures on equally wide-ranging issues: criminal justice, the roles of the profession and the judiciary, the case for substituting the House of Lords with a Supreme Court, contract and arbitration law, and the interpretation of statutes. Most famously, he delivered the 2003 F.A Mann lecture, which began, as his writing always does, by going directly to the issue: “The most powerful democracy is detaining hundreds of suspected foot soldiers of the Taliban in a legal black hole at the United States naval base at Guantanamo Bay, where they await trial on capital charges by military tribunals.”

He criticised the refusal by United States courts to act. These courts considered that although Guantanamo Bay had been occupied by the United States since 1903, it did not constitute American soil: “As a lawyer brought up to admire the ideals of American democracy and justice, I would have to say that I regard this as a monstrous failure of justice.”

Lord Steyn has been described in these words by a leading UK constitutional lawyer, Professor Sir Jeffrey Jowell (also a member of FUL’s International Advisory Board): “Fiercely independent, he would sometimes dissent sharply from his brethren when he was unable to persuade them. Ultimately a man of the highest values, and most steadfast commitment to equality, the rule of law and constitutionalism.”

Lord Steyn once said of another that great judges, like great cricketers, select themselves. We mark today one such: an exceptional career in the law, committed to its animating spirit.

JEREMY GAUNTLETT SC QC

Mdluli case finally back in court

On Wednesday this week (11 September) the High Court in Pretoria is due to hear an important case that was launched urgently by Freedom Under Law (FUL) in May last year against the National Director of Public Prosecutions (NDPP) and five other public officials. The case challenges decisions by the acting heads of the NDPP and its Specialised Commercial Crimes Unit (SCCU) and by the National Police Commissioner withdrawing serious criminal charges and disciplinary proceedings against General Richard Mdluli, at the time the head of National Crime Intelligence of the SAPS. In June last year Judge Makgoba granted FUL an urgent interim order blocking the Commissioner from assigning any functions or duties to General Mdluli until FUL’s main application to set aside the decisions had been determined. The judge observed that the sooner the saga was brought to an end, the sooner the credibility of the police service and the justice system could be restored.

That saga is what FUL intends pursuing on Wednesday this week (11 September). It believes the case is extremely important, not only because it relates to the fitness of a controversial senior police officer to occupy a position of vital importance (and great power and influence) at the very heart of the nation’s security system. More importantly, FUL contends, the case touches on crucial aspects of the rule of law, the role and duties of the NDPP and the Commissioner, and the demands of the Constitution for accountable, transparent, reasoned and rational exercise of their powers. In particular FUL challenges as irrational and unconstitutional the relevant decisions taken by the acting head of the SCCU, Advocate Lawrence Mrwebi (backed by the acting head of the NDPP, Advocate Nomgcobo Jiba). These unilateral decisions flew in the face of the unanimous, considered and expert opinion of the senior investigators and prosecutors who were steeped in the cases against General Mdluli.

Only the NPA, the SCCU and the Commissioner are actively opposing FUL’s case, largely on technical/legal grounds. They challenge FUL’s standing to bring the case, challenge as hearsay the admissibility of many of FUL’s allegations (based on information derived from public sources), and on constitutional and labour law grounds deny the Court’s power to order reinstatement of the charges. None of them has complied properly with their legal obligation to file the full record of their deliberations leading to the disputed decisions; they have consistently failed to comply with the timetable prescribed by the court rules and by the deputy judge-president and the NDPP and the SCCU filed their argument only today. None of the respondents has dealt squarely with the substantive contentions advanced by FUL, and such defences as they have put up, FUL maintains, demonstrate their fundamental misconception of what is in issue here.  Click here to access FUL's replying affidavit 

This week at the JSC

Everyone concerned about the Rule of Law in Southern Africa must have noted with mounting dismay this week’s news and media comment on the Judicial Service Commission’s latest deliberations. The JSC is an important public body created by the Constitution to protect and promote the Rule of Law by ensuring the independence and effectiveness of the judiciary. It is a pity that instead of being protected, the dignity and standing of the judiciary are being damaged by the criticism and contention aroused by the JSC’s behaviour this week. The fact that a representative of the General Council of the Bar of South Africa found it impossible to continue serving on the JSC increases the alarm.

Freedom Under Law has in the past been compelled to challenge the constitutionality of decisions and conduct of the JSC through the courts – ultimately successfully. Unfortunately this latest sequence of egregious events may well oblige FUL to challenge the JSC yet again. It is always regrettable when the image of a public body that ought to enjoy the undivided support of the country is brought into question; but when the alternative is continued impairment of the Rule of Law, the choice is clear.

It follows that if nobody else takes action, the board of Freedom Under Law will have to consider whether it is once more to institute appropriate proceedings to have the propriety and legitimacy of the JSC’s current course of conduct tested in court.

Zimbabwe Lawyers for Human Rights statement on release of Beatrice Mtetwa

High Court Judge Justice Joseph Musakwa on Monday 25 March 2013 put the brakes on the malicious persecution of Zimbabwe Lawyers for Human Rights board member, Beatrice Mtetwa, after he set aside the dismissal of the top human rights lawyer’s bail application by Harare Provincial Magistrate Marehwanazvo Gofa and upheld an appeal filed by her lawyers.

Justice Musakwa agreed with Mtetwa’s lawyers that Magistrate Gofa had erred and misdirected herself when she denied the human rights lawyer bail on 20 March 2013.

Magistrate Gofa based her dismissal of the bail application on the basis that if released on bail, Mtetwa would interfere with police investigations which were reportedly in their “infancy” as well as cause “commotion” as she had purportedly done when she was arrested on Sunday 17 March 2013. The Magistrate ruled that the said commotion would hinder the police from carrying out their investigations.

But Justice Musakwa said Mtetwa should not have been denied bail by the magistrates, that the police should have shed light on the nature and scope of the investigations that remained outstanding, and that the magistrates’ court should not have denied liberty to a legal practitioner of repute like Mtetwa.

Justice Musakwa ordered Mtetwa, who until Monday had endured eight nights in both police and prison detention, to pay bail  of $500 and not to interfere with investigations until the matter is resolved.

With regard to Mtetwa’s conduct, Justice Musakwa said although he would describe Mtetwa as of a forceful if not combative personality, she still remained professional in the execution of her  professional duties.

On State allegations that Mtetwa’s shouting at the police could have caused or resulted in the disappearance of some computers that the police wanted to recover, Justice Musakwa said being a woman, Mtetwa could and should have been subdued by the police officers.

Upon her release from prison bondage, Mtetwa told journalists that  her arrest and prosecution was aimed at instilling fear among human rights lawyers in Zimbabwe.

“It’s an attack on all human rights lawyers. I was just used as an example,” said Mtetwa.

Mtetwa was arrested on Sunday 17 March 2013 and charged with contravening section 184(1)(g) of the Criminal Law (Codification and Reform) Act for allegedly defeating or obstructing the course of justice. She returns to Rotten Row Magistrates Court on 3 April 2013 for routine remand.

FUL welcomes African Commission’s ruling in favour of Gabriel Shumba, reiterates concern for safety of Beatrice Mtetwa

Freedom Under Law (FUL) welcomes the recently released decision of the African Commission in the torture case brought against the government of Zimbabwe by Advocate Gabriel Shumba. Mr Shumba, at the time acting as a lawyer for his clients, was arrested by the Zimbabwean authorities in 2003 and took his case to the African Commission the following year. The Commission has not only found that he was in fact severely tortured but has recommended that the Zimbabwean government pay compensation to Mr Shumba and open an official investigation to bring those responsible to justice.

While welcoming this ground-breaking ruling of the most important human rights body in Africa, FUL reiterates its concern for the safety of its Board member Beatrice Mtetwa, at present in custody in Harare’s Chikurubi Prison. Ms Mtetwa, like Mr Shumba a Zimbabwean human-rights lawyer who was interceding on behalf of clients, was arrested a week ago, on Sunday 17 March. Despite a High Court order the authorities refused to release her and later a magistrate denied bail. She has been remanded in custody for trial on 3 April on a charge of obstructing the course of justice. This Monday, 25 March, Ms Mtetwa will appeal in the Harare High Court against the refusal of bail. FUL intends to be represented at this hearing by an observer and will likewise take an interest in the trial, should it eventuate.

Release Beatrice Mtetwa!

Freedom Under Law, founded to assert the rule of law in Southern Africa, condemns the arrest reported today of the member of its Board of Directors, Beatrice Mtetwa.

Ms Mtetwa was professionally engaged in giving legal assistance to a client targeted by Zimbabwean police when she herself was taken into custody.  It is particularly disturbing that the summary arrest of a highly respected legal practitioner should follow immediately after the closing of voting in the constitutional referendum in Zimbabwe and after a series of raids by police, even on the office of the Prime Minister of Zimbabwe.

This is not the first occasion on which Ms Mtetwa has been harassed and deprived of her liberty by virtue of her courageous legal representation of political dissenters.  Previously she has been detained and assaulted while in police custody.  Freedom Under Law is concerned for her safety now and is in the process of arranging legal representation for her.

Beatrice Mtetwa is a former President of the Law Society of Zimbabwe, director of the Mail&Guardian, and outspoken critic of executive excesses in Zimbabwe.  Her work as a human rights lawyer has rightly received international recognition: She has received awards from the European Bar Human Rights Institute and the American Bar Association among other commendations.

Freedom Under Law calls for the immediate release of Beatrice Mtetwa, and the condemnation by other SADC governments of this retaliatory measure against one of Zimbabwe’s foremost human rights legal practitioners.

The Rule of Law Requires an Independent Legal Profession

Hugh Corder and Alistair Price

The Legal Practice Bill has laudable goals.  It is widely acknowledged that legal services are not affordable for most South Africans.  Entry into and progression within the legal profession is especially difficult for black and/or female law graduates.  Change has been painfully slow since 1994.  The Bill aims to tackle these serious problems.

It is not our intention to engage in a detailed consideration of the strengths and flaws of the Bill: they have been widely canvassed before the Parliamentary Justice Committee over the past year. We wish rather to emphasise a broader constitutional criticism, voiced eloquently and publicly by Chief Justice Arthur Chaskalson just weeks before his death last year.  As a human-rights lawyer, defence lawyer of Nelson Mandela, and the first President of our Constitutional Court, Chaskalson had a particularly clear understanding of potential threats to constitutional democracy and the rule of law.  The nub of his criticisms was this.

The Bill, in its present form, poses a grave threat to the independence of the legal profession.  This matters for the following reasons. Section 1 of our Constitution states that we, as South Africans, commit ourselves to the rule of law.  This commitment is central to our post-apartheid aspiration to build a society that respects human dignity and promotes equality and fundamental freedoms.  It requires that our society be ruled by law, not by the arbitrary decisions of those in positions of public and private power, and that state officials especially be legally and publicly accountable through the courts.  It requires that those courts be sufficiently independent from other powerful interest groups – as a matter of institutional design and judicial approach – to make this a real check on power.  The crucial point is that judicial independence depends, in turn, on the existence of an independent legal profession. 

This link is globally acknowledged (for instance, by the UN, the Commonwealth Ministers of Justice, and International Bar Association).  Courts cannot perform their duty to apply the law impartially, without fear or favour, unless they are assisted by lawyers who are themselves independent of external control.  An independent profession enables – indeed, in the case of advocates, obliges – lawyers to argue for unpopular causes.  To quote Justice Chaskalson, “it is in the public interest, and of clients, that the culture of the legal profession should be rooted in [its] independence…, and that lawyers should not be subject to outside influences or be concerned that if they take on a case for a particular client they will incur the hostility of the government or other powerful bodies.”  This independence enabled lawyers like Chaskalson to represent opponents of the apartheid regime in court, while regrettably some practitioners were only too ready to ingratiate themselves with that regime. The point, however, is that the independent character of the profession tolerated both approaches.  Equally importantly, years of tertiary and vocational legal training followed by practice in an autonomous profession foster a spirit of independence that is entirely appropriate given that judges are predominantly appointed from such ranks. As teachers of law, we would argue that there is an unbreakable link between our academic freedom to decide what and how we teach, and the qualities of independence of spirit and critical inquiry essential to the maintenance of an independent judiciary and the rule of law. Thus legal education must also play its part in establishing such independence.

Certain provisions of the Legal Practice Bill threaten the independence of the legal profession.  For example, the Bill establishes a Council to regulate the day-to-day functioning of the profession, but the Minister is empowered to dissolve it, without its agreement.  Furthermore, the Minister is empowered to make regulations on a wide range of matters, including vocational training, community service, fee structures, and continuing professional development.  When making these regulations, the Minister must consult with, but is not obliged to obtain the agreement of, the Council or of legal practitioners generally.  The Bill therefore places extraordinary power over the legal profession in the hands of party politicians representing a particular constituency, not the whole electorate.  That, again, undermines the profession’s independence.

Undoubtedly, the regulation of the legal profession must be modernised to remedy its flaws, but not at any cost.  Concrete steps must be taken, by the government and the legal community jointly, to improve access to affordable legal services and to transform and promote equity in the legal profession. For example, we support regulation that effectively tackles the problem of excessive fees charged by some practitioners, but only in consultation with the leadership of the profession.

The Bill confers overly wide and vague powers on the Minister.  These must be removed. Echoing the late Chief Justice, we urge that the independence of the legal profession be strengthened rather than undermined, in order to protect an independent judiciary, and thus the rule of law. The noble goals of improving access to legal services while promoting a more equitable, representative, and independent profession should be pursued with equal vigour, but not so as to undermine the foundational constitutional value of the rule of law.

Hugh Corder is Professor of Public Law and Alistair Price a Senior Lecturer in Private Law at the University of Cape Town

JCC’s decision on complaints against Judge President Hlophe

Freedom Under Law is gratified that its years of effort in regard to Judge Hlophe's conduct have borne fruit. We respectfully welcome the view of the Judicial Conduct Committee (JCC) that the complaint by the justices of the Constitutional Court against Judge President Hlophe may constitute gross misconduct warranting impeachment. We trust that the Judicial Service Commission will now cause the disciplinary inquiry to proceed with due diligence and expedition.

We are also gratified that the JCC shares our view that the publication by a judge of scurrilous allegations against colleagues constitutes gross misconduct. We have noted the JCC's decision that for technical reasons unrelated to the merits of Freedom Under Law's complaint, the complaint  cannot proceed. We shall study the JCC's reasons for this ruling and decide on our future course of action.

 

JCC's

MEDIA STATEMENT

On 24 August 2012 the Judicial Conduct Committee heard oral submissions made by Counsel representing Freedom Under Law and Judge President Hlophe and also considered written representations earlier made in connection with the complaint lodged by Freedom Under Law against Judge President Hlophe. The Committee also considered the written representations submitted on behalf of the judges of the Constitutional Court in connection with the complaint they had lodged against Judge President Hlophe. The Committee has now made its decision in the two matters as set out hereunder.

1.       The complaint lodged by the Judges of the Constitutional Court

The Committee considered that this complaint, if established, will prima facie indicate gross misconduct which may lead to impeachment. Accordingly, the Committee has recommended to the Judicial Service Commission that a Tribunal be appointed to investigate it. In doing so, the Committee took into account inter alia the clear pronouncements of the Supreme Court of Appeal that the Judicial Service Commission must make a determination whether the Judge President was guilty of gross misconduct or not.

2.       The Complaint lodged by Freedom Under Law

The Committee accepted that some of the utterances made by Judge President Hlophe in the course of the proceedings that followed upon the laying of the complaint by the judges of the Constitutional Court will, if established, indicate gross misconduct on the part of the judge. However, the Committee considered the circumstances under which the utterances were made and came to the conclusion that in view of such circumstances it is not likely that such misconduct would justify impeachment. In the circumstances, the proper course to follow would be to recommend in terms of section 16(4)(a) of the Judicial Service Act 9 of 1994 as amended that an enquiry be conducted in terms of section 17(2).This would, however, expose the judge to complaints and penalties that were not there when the complaint arose. This would violate the established rule of law against retrospective application of legislation.

          This complaint could therefore not be proceeded with and was accordingly dismissed.

CLA, CLEA and CMJA statement on SADC Tribunal

The Commonwealth Lawyers Association (CLA), the Commonwealth Legal Education Association (CLEA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA) are concerned about the recent decision of the Southern African Development Community (SADC) Summit of Heads of State to negotiate a new Protocol on the SADC Tribunal and limit the mandate of the Tribunal to interpretation of the SADC Treaty and Protocols relating to disputes between Member States.

The CLA, CLEA and CMJA recall that individuals had a clear right of access to the Tribunal as set out in the original Protocol and notes that all previous cases heard by the Tribunal have been brought by individuals.

The CLA, CLEA and CMJA further note that this decision appears counter to the outcome of the

independent review initiated by SADC and submitted in March 2011 which affirmed the jurisdiction of the Tribunal and its legal authority. In May 2011, the SADC Committee of Ministers of Justice/Attorneys General was further mandated to review the operation of the Tribunal and submit a final report in August 2012. A copy of this report has not been made public.

The CLA, CLEA and CMJA recall the provisions of the Commonwealth (Latimer House) Principles on the Separation of Powers and Independence of the Judiciary 2003. The failure of the Summit to reinstate the Tribunal in its original form, together with the decision to renegotiate the mandate, raises difficult questions as to the institutional balance and separation of powers within the various structures of SADC itself as well as wider questions of commitment to the principles of democracy, human rights and the rule of law, including the independence of the judiciary, as set out in the SADC Treaty itself.

The CLA, CLEA and CMJA call upon the SADC Summit to reinstate the Tribunal in its original form noting that it is an important mechanism for the promotion, protection and full realisation of human rights within Southern Africa and also provides the citizens of the SADC region with access to justice and effective legal remedies independent of national judicial systems.

Commonwealth Lawyers Association (CLA)

Commonwealth Legal Education Association (CLEA)

Commonwealth Magistrates’ and Judges’ Association (CMJA)

23rd August 2012

 

JUDGE HLOPHE’S LEGAL COSTS

Freedom Under Law (FUL) is surprised that the Minister of Justice has reportedly made known that, irrespective of the outcome, the State – i.e. the South African taxpayer – is to stand good for the legal costs incurred by Judge President MJ Hlophe in the proceedings arising from the complaint against him by the justices of the Constitutional Court (CC) and, presumably, from the associated complaint by FUL.

It is hard to believe that the minister has been correctly reported. Not only would he be contradicting his own earlier public statements in this regard but the statement would mean that the minister has committed the public purse to paying Judge Hlophe’s costs even if he is found guilty of the grave charges still outstanding against him. The charge which the Supreme Court of Appeal ordered the Judicial Service Commission (JSC) to investigate properly is essentially one of attempting to defeat the ends of justice, and FUL’s charge is one of gross misconduct arising from Judge Hlophe’s scandalous public reaction to that charge.

The decision ascribed to the minister is therefore legally and ethically indefensible. There has never been a suggestion that the judge president of the Cape court was acting in the course of his duties when on his own admission he raised with two justices in their offices in Braamfontein the politically sensitive Zuma/Thint cases they were considering at the time.

The minister’s alleged reliance on the constitutional importance of the complaints is equally unsound. No constitutional issue has ever been raised in the two complaints against the judge. The first turns on his credibility, the second on the impropriety of the scandalous allegations about his colleagues to which he resorted in his defence. The constitutionality of the JSC’s (mis)conduct was never in issue in the complaints against the judge and has in any event long since been determined. The fundamental issue has at all times been Judge Hlophe’s fitness for judicial office.

It should also be noted that the judge president’s costs over more than four years were incurred while he, retaining his office and its benefits, vigorously – and thus far successfully – fought to put off the final determination of the truth of his conversation with the two justices. In the circumstances it is unconscionable that such costs are to be borne by the citizenry.

The minister may believe that he has an unfettered discretion to make such costs arrangements as he sees fit. FUL, however, is considering legal steps to test such belief.

In the interim the minister is urged to take the public into his confidence by stating:

  • when, in what terms and for what reason(s) the decision to provide funding for Judge Hlophe was originally take
  • whether such decision was at any stage amended and, if so, when, in what respects and for what reason(s)
  • how the total sum paid by the State is made up, specifying in respect of each payment the date, amount, payee and services involved.

 

Johann Kriegler

Chairperson