JCC ruling against Judge Kriegler

Freedom Under Law notes the ruling by Judge Zondi, sitting as the Judicial Conduct Committee and dated 29 July 2022, in respect of a complaint made by Vuyani Ngalwana SC against Judge Johann Kriegler (FUL’s chairperson) on 20 April 2021. 

Mr Ngalwana alleged breach of at least nine different articles of the Code of Judicial Conduct in relation to numerous alleged statements made by Judge Kriegler, as quoted in media publications from September 2009 to April 2021. All Mr Ngalwana’s complaints bar one were dismissed on the basis that “they are lacking in substance”.  The only complaint upheld was in relation to one statement reported to have been made by Judge Kriegler on 1 March 2021 to the effect that Hlophe JP was unfit to be a judge. Judge Zondi found that contravened one provision of the Code (article 11(1)(f)). 

Judge Kriegler and FUL believe that this finding is materially incorrect and adversely implicates important issues of principle and FUL’s work. It will be appealed insofar as it upheld one of the complaints.  FUL endorses the public utterances made by Judge Kriegler in relation to Judge Hlophe. 

 No further statements in relation to the ruling will be made at this stage. 

JSC to consider suspension of Judge Hlophe

22 July 2022 

More than fourteen years ago the Judge President of the Western Cape High Court, Judge John Hlophe, visited two Constitutional Court justices in an attempt to influence them improperly in favour of Mr Jacob Zuma in a corruption-related case. When the Judicial Service Commission shelved the resultant complaint laid by all the justices of the Constitutional Court, Freedom Under Law had it revived. Over the years FUL has kept up the pressure – and finally, in August last year, the JSC found Judge Hlophe guilty of gross misconduct. FUL is still involved, as a party to Judge Hlophe’s ongoing attempts to have his conviction set aside.

 Meanwhile FUL has been pressing for Judge Hlophe to be suspended. Although the Constitution makes express provision for suspension of judges facing serious charges, and although other judges have been routinely suspended, the JSC has declined to apply the the constitutional provision to Judge Hlophe. Since last year’s finding FUL has redoubled its efforts, ultimately threatening to take the JSC to court if it did not deal with the suspension issue by 15 July 2022.  

Fortunately this was not necessary, since the JSC has now convened a meeting next Monday, 25 July 2022, to consider the matter. Although FUL has not been invited to participate, its attorneys have submitted detailed argument in support of Judge Hlophe’s immediate suspension.* In principle it is unthinkable that a person convicted of attempting to pervert the course of justice can continue to head one of the country’s busiest courts. As Judge President he allocates cases to judges, nominates acting judges and has great influence in permanent appointments. He is the nerve centre of the Division. 

We trust the Judicial Service Commission will take our submissions into account and more particularly trust that they will put an end to the current untenable situation in the Western Cape High Court.  

*The FUL submissions are attached here

Media Statement issued by Freedom Under Law, Section27, Defend our Democracy Campaign, Ahmed Kathrada Foundation, Seri and Corruption Watch

30 June 2022

NGOs condemn Minister Motsoaledi’s attack on Helen Suzman Foundation

Three features distinguish our country from many other young democracies: first, respect for the Rule of Law; second, a vibrant civil society; and, thirdly and crucially, a fearless judiciary.

This week we saw a glaring instance of executive abuse of all these features. Minister of Home Affairs Aaron Motsoaledi saw fit to lend his name to an attack on civil society organisations – all because a reputable NGO has dared to take a ministerial decision on judicial review.

Without a shred of justification, the minister issued the most outrageous public statement vilifying the Helen Suzman Foundation (HSF), impugning its integrity and patriotism, accusing it of racism and treachery – and in the process gratuitously smeared the NGO community as a whole. 

This flood of invective was released because the HSF had applied to court for an order affecting the lives of some 180 000 Zimbabweans lawfully living in South Africa. Essentially HSF asks that the minister reconsider a decision he took some time ago terminating, with effect from the end of this year, a special dispensation whereby people and their families have for more than a decade been allowed to live in South Africa.

The HSF case is not that Zimbabweans are entitled to remain here. It is merely submitting that there was no adequate consultation with interested parties before this radical decision was taken. Therefore, it is argued, the minister should conduct the necessary consultation and then reconsider the issue.

The minister’s threats and innuendos are ominous, but sadly not unprecedented. The apartheid regime shut down or hounded into oblivion countless law-abiding civil society organisations, faith-based organisations and human-rights NGOs. We do not need to relive those days.

It would be wrong for us to express any opinion on the merits of the HSF case, but it is both grossly improper and unconstitutional for the minister to insult, threaten and attempt to intimidate the HSF. In our country, court cases are determined on their merits in duly constituted courts, not by public declarations.

The undersigned representatives of civil society record their rejection of this crude attempt to subvert the Rule of Law. We call on the minister to withdraw his statement and apologise to the Helen Suzman Foundation.

Advocate Mkhwebane suspended – but not Judge Hlophe

10 June 2022

Again and again, Advocate Mkhwebane has embroiled her office in legal battles unrelated to her constitutional duty as Public Protector.

The courts have repeatedly made damning findings, in respect not only of her competence but also of her motives and integrity. For instance, in July 2019 the Constitutional Court said that she had put forward a “number of falsehoods” and that her “defiance of her constitutional obligations” was “egregious”.

These findings signalled Advocate Mkhwebane’s misconduct, incapacity or incompetence that the Constitution says can trigger action against her. Clearly no later than 2019 Parliament should have taken steps to have her removed from office and the President should have suspended her in the interim. This failure has caused the country untold harm. Millions have been squandered and weeks of court time wasted in frivolous and vexatious litigation – and the vitally important office of the Publc Protector has become an embarrassment.

There are echoes here of another disgraceful failure to safeguard public institutions, in this case the Judicial Service Commission’s abject dereliction of its duty to protect the integrity of the judiciary, no less vital a public institution. 

It is now 14 years since Judge President Hlophe lobbied two justices of the Constitutional Court in favour of Mr Zuma. Although the Judicial Service Commission months ago found him guilty of gross misconduct, and although the Constitution makes provision for suspension pending impeachment, he remains the public image of Justice in the Western Cape. Freedom Under Law has repeatedly called on the JSC to recommend his suspension to the President: perhaps the action now taken against the Public Protector will galvanise them into action.

Gauteng High Court dismisses Judge Hlophe’s review application

6 May 2022

Freedom Under Law welcomes the dismissal by a full bench of the Gauteng High Court of Judge President Hlophe’s application to review the Judicial Service Commission finding against him of gross misconduct.  

The court rejected each of the Judge President’s numerous contentions aimed at delaying his impeachment, concluding that the JSC had correctly found him guilty. 

We also welcome the court’s clear statement that there is no scope for Parliament to decide afresh on the judge’s guilt. It is bound by the JSC finding of fact and must now decide whether this senior judge, guilty of gross misconduct, should be allowed to continue in office.

It is clearly in the interests of justice and the rule of law that this impeachment process be undertaken without any further delay. Nearly fourteen years have passed since Judge Hlophe’s furtive attempts to pervert the course of criminal justice against Mr Zuma. For far too long the Western Cape Division of the High Court has had to contend with Judge Hlophe as its head. 

Over the years Freedom Under Law urged unsuccessfully that, as the Constitution permits, the Judge President be suspended while the process against him dragged on. We will oppose any further attempts by or on behalf of Judge Hlophe to frustrate or retard the impeachment proceedings against him. 

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.”

Civil Society calls for no new interviews at JSC until code of conduct and criteria for appointment in place

3 March 2022

Nine civil society organisations have called on the Judicial Service Commission (JSC) not to proceed with any new interviews for judicial appointment until the JSC has in place a published code of conduct for commissioners and stipulated criteria to assess suitability of candidates for appointment.

The letter asks that the JSC gives the organisations an undertaking by no later than 8 March 2022 that it will put in place a code and criteria ahead of the next round of interviews scheduled for 4-8 April 2022.

The organisations that signed the letter include the Ahmed Kathrada Foundation, Corruption Watch, the Council for the Advancement of the South African Constitution (CASAC), Defend our Democracy Campaign, Freedom Under Law, the Helen Suzman Foundation, Lawyers for Human Rights, the Legal Resources Centre and the Nelson Mandela Foundation.

Judicial Service Commission proceedings: Tuesday 1 to Friday 4 February 2022

1 February 2022

This week the Judicial Service Commission will be interviewing a shortlist of four senior judges in order to advise the President on the selection of the next Chief Justice.

Freedom Under Law is profoundly concerned that two current members of the JSC will reportedly be participating in these proceedings despite their suitability to fulfil their constitutional duty in this regard being a matter of serious doubt. These members are Mr Julius Malema MP and Adv Dali Mpofu SC.

Mr Malema was recently found to have breached Parliament’s Code of Ethical Conduct. The Joint Committee on Ethics and Members’ Interests found that during JSC interviews for the appointment of judges, Mr Malema had put an inappropriate question to a judge concerning a matter in which he had a personal interest.  It went on to hold that Mr Malema had used the JSC as a “platform for his personal interests”. It accordingly recommended that Parliament sanction Mr Malema by requiring him to apologise to both the judge concerned and the JSC for his conduct. Parliament is yet to deliberate on the matter while Mr Malema, it appears, remains unrepentant. 

Adv Mpofu was investigated by the Legal Practice Council in relation to his extraordinary conduct at the Zondo Commission last year when he rudely demanded that a colleague – and later her client – “shut up” and interrupted Justice Zondo when he attempted to control the proceedings. 

The LPC concluded that Adv Mpofu interrupted Justice Zondo on numerous occasions and “did not uphold the accepted decorum in court”. It found that his conduct was aggravated by his having been being “contemptuous” towards Justice Zondo, and having refused to accept a rebuke from him. And that it was wholly improper for him to demand that his colleague “shut up” during the hearing.  The LPC accordingly recommended that Adv Mpofu be charged with professional misconduct. These charges are pending. 

The JSC has long applied the principle that a candidate facing a misconduct charge should not be considered for appointment. Yet the JSC permits two members against whom misconduct proceedings are ongoing to participate in this week’s proceedings. 

We respectfully suggest that Mr Malema and Mr Mpofu should stand aside from service on the JSC as long as they are subject to these serious ethical charges. Unless and until they successfully challenge the findings, they are not fit to pass judgment on the ethical and professional qualities of others. 

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!