Court grants FUL order

Today the Pretoria High Court handed down judgment, upholding FUL’s application with costs.  FUL had sought an urgent interdict against the Acting Police Commissioner allocating any function to Gen Mdluli, and against Gen Mdluli discharging any police duty, pending the application for judicial review FUL has lodged with the court.

The judgment upheld FUL’s claim to urgency and to its right to seek an order on behalf of civil society, when the police authorities had failed to act decisively in the matter.

The judgment is a powerful articulation of constitutional principle, relating particularly to the rule of law, vindicating FUL’s action.

To access the judgment, click here.

Mdluli fails to answer FUL

Gen Richard Mdluli’s attorney has written to the attorneys for Freedom Under Law today, asking for their last-minute ‘condonation’ of his failure to file his answering affidavit to FUL’s interdict application, due today.

In response FUL pointed out that condonation for Gen Mdluli’s failure to act as required is a matter for the court to hear the application on Tuesday, not for it. FUL called upon Mdluli to file his answer immediately.

Whether he does or not, the case will proceed on Tuesday.

In the meanwhile, an answering affidavit has been filed on behalf of SAPS deposed to by its acting Commissioner. It disputes none of the allegations concerning the evidence against Gen Mdluli in relation to matters ranging from murder and kidnapping to corruption and money-laundering. However the Commissioner contends that the matter is ‘not urgent’.

In another development today, the State Attorney has written to FUL’s attorneys notifying them that Gen Mdluli has himself now launched an urgent application in the Labour Court attacking his suspension earlier this week by the acting Commissioner, after FUL had lodged its High Court application. The State Attorney has invited FUL’s intervention in the suspension battle.

FUL is considering that prospect. But in the meanwhile it has responded to the State Attorney that it continues to seek a simple temporary interdict in the High Court which is not tied up with the question whether Gen Mdluli has or has not been duly suspended under the Police Act and regulations.

FUL’s case is that Gen Mdluli should be interdicted by the High Court from performing a single act as a police officer (and the Commissioner and Police against giving him any task) until such time as FUL’s pending judicial review of the series of decisions in recent months by police authorities and the NPA to withdraw the criminal and disciplinary charges against Gen Mdluli can be adjudicated.

Dr Mamphela Ramphele today deposed to a replying affidavit on behalf of FUL.  In addition, Corruption Watch and the Social Justice Coalition have lodged applications to join FUL’s application as amici curiae.

To access the full court papers, click here.

Gen Mdluli suspended

Freedom Under Law welcomes the decision now by the acting Commissioner once again to suspend Gen Mdluli. 

FUL's court application for an urgent interdict was made necessary by the refusal of the Minister of Safety and Security to do more than reallocate other operational duties to him.  This had left Gen Mdluli on duty with the full authority of his rank, despite the serious allegations against him that he had committed an array of offenses from murder and kidnapping to corruption and money-laundering.

Gen Mdluli’s attorney has publicly denied that his client has received the notice.  Clearly Gen Mdluli does not accept that he has been validly suspended.  For this reason, and because there is no guarantee that the suspension will not once again be revoked, FUL will still seek the urgent interdict.

The Minister and Commissioner have been invited to consent to the order.

FUL’s application for the review and setting aside of the decisions to withdraw criminal and disciplinary charges against Gen Mdluli also continues.  

FUL calls upon Minister Mthethwa to announce the prompt reinstatement of both.

FUL’s urgent application: Gen Richard Mdluli

FUL today launched an urgent application to interdict Gen Richard Mdluli from continuing to discharge any function as a police officer pending the judicial review of a series of decisions relating to his recent reinstatement as head of Crime Intelligence of the South African Police Service. A similar interdict is sought against the Minister of Safety and Security from assigning any function or duty to Gen Mdluli before the review can be heard.

This follows the failure by the Minister to suspend Gen Mdluli, despite allegations of murder, kidnapping, fraud, money-laundering and defeating the ends of justice, and despite a response by Gen Mdluli alleging a conspiracy against him by other police chiefs.

Media release : click here 
Court papers : click here

Judgment of the Constitutional Court

FUL welcomes the judgment of the Constitutional Court which now finally puts to rest Judge Hlophe's attempts to challenge the orders issued by the Supreme Court of Appeal a year ago today.  We look forward to the speedy resumption by the Judicial Service Commission of the enquiry the SCA ordered it to conduct into the complaint of gross misconduct in that Judge Hlophe tried to influence the deliberations of the CC in criminal cases involving Mr Zuma. 

We also trust that the JSC will now see its way clear to deal with the separate complaint lodged by FUL arising from the scurrilous and unfounded allegations Judge Hlophe published concerning (then) Chief Justice Langa, Deputy Chief Justice Moseneke and the other justices of the CC who reported his conduct to the JSC. FUL maintains this behaviour was grossly improper and shows that Judge Hlophe is unfit to be a judge.

Judgment : Hlophe v Premier Western Cape In re Hlophe v FUL – Constitutional Court judgment (30 March 2012)

An assault on the Constitution

Hugh Corder

The newspaper billboards on Monday proclaimed shock at President Zuma’s “attack” on the Constitutional Court (CC). My immediate reaction was to wonder what the President had said this time. Anyone who has observed the relationship between the judiciary and the executive over the past five years will know that the President has on several occasions questioned the role of the courts, especially in holding the executive and Parliament to their constitutional mandate. Of course, in his personal capacity, the President has repeatedly manifested complete trust in the courts, not only as a person accused of rape, but also in his long-drawn out series of applications to court which effectively stalled the proposed charges against him for arms-deal corruption. Using what many might view as delaying tactics, implemented by skilful lawyers relying on rights protected in our Bill of Rights, Mr Zuma succeeded in escaping having to plead to any such charges.

What many might have forgotten was the clamorous campaign of vilification of the judiciary indulged in by leading members of the tripartite alliance at that time. Several of the most senior leaders of that alliance made often wild and usually unsubstantiated accusations against individual judges or the judiciary collectively (except of course the judge who found Mr Zuma not guilty of rape, and the judge who found that there had been some sort of political conspiracy behind the levelling of the corruption charges, in both cases after they had given judgment). This intemperate and intimidatory campaign was also indulged in by office-bearers of the ANC Youth League, without any form of restraint from their elders. And Mr Zuma himself, shortly before his election as President, said on 9 April 2009 that he did not understand why the courts had the power to overrule the will of Parliament, and likened the role of the Constitutional Court to God; so his faith in the courts was qualified

In pondering the possible thrust of the President’s latest statement, I recalled other remarks he had made over the past year or so, in which he has again criticised the constitutional role of the courts, not their decisions, while at the same time affirming his commitment (as he must, according to his oath of office) to judicial independence and the rule of law. I then worried about openly hostile remarks made last year about the Constitution and the courts, alleging that they were obstacles to transformation, by Deputy Minister Ramatlhodi, and Mr Gwede Mantashe. I recalled the manner of appointment of both the NDPP, Mr Simelane, the botched attempt to extend the term of office of Chief Justice Ngcobo, and the entirely unedifying run-up to the appointment of Chief Justice Mogoeng. I also remembered that the Judicial Service Commission has yet to rule on a single instance of alleged judicial misconduct, and that the rationality of its selection process has recently been found wanting by a court. Could the President have spoken on these issues?

My thoughts then turned to the Cabinet announcement of 24 November 2011, when it decided “that the transformation of the judicial system and the role of the judiciary in a developmental state would be assessed by a ‘reputable research institution’”. The focus of the investigation would be threefold: first, to ensure that the judiciary “conforms to the transformation mandate as envisaged in the constitution”; second, to enhance access to justice at both superior and lower court levels; and third, to examine “the independence of the judiciary as well as the executive and parliament to promote independence and the interface necessary to realise transformation goals as envisaged by the constitution”. At the time, many commentators feared that this would be an attempt to narrow or eliminate the review power of the CC, a direct undermining of one of the most fundamental foundation stones of our Constitution, and this fear moved both that quintessential icon of “struggle lawyering”, George Bizos, as well as former Chief Justice Arthur Chaskalson, to make high-profile and brutally logical rebuttals of apparent charges that the Constitution and judiciary were in some way against transformation. We were also assured last week, in an article by the South African-born American law professor, Ziyad Motala, that Bizos and Chaskalson had it all wrong, that the politicians were in no sense questioning the power of judicial review, but only criticising certain judgments. In his words: “Let’s be very emphatic. Judicial review is a central and inextricable element in constitutionalism and an unqualified positive enshrined in our Constitution. Any attempt to interfere with this fundamental norm must be fiercely resisted.” For Motala, and I think for anyone who has had anything to do with the judicial process in operation, reasonable people can disagree on the interpretation of laws, and judges should be prepared to have their judgments criticised. This is, after all, one of the most effective means of holding the judiciary accountable in a constitutional democracy, and Bizos and Chaskalson did not for a moment hint that judges should be immune from criticism: in fact, their illustrious careers bespeak the opposite.

So, what could President Zuma have said, such as to induce shock? Well, he did say a few things which should be welcomed: judges were “fallible human beings”, that some judgments were more persuasive to one reader than others, that there was nothing wrong with questioning judicial decisions. All this is trite, and I began to relax. He also made a couple of statements which I found intriguing and worth debating: that he questioned the logic of having split judgments, and that judges were influenced by “what’s happening”, and by the media.

But then the thunderbolt: there is a need to “review the CC’s powers”. This is stated unambiguously: “We don’t want to review the Constitutional Court, we want to review its powers. It is after our experience that some of the decisions are not decisions that every other judge in the Constitutional Court agrees with.” This is indeed shocking, for it is exactly what Motala said was not intended and, given the background outlined above, cannot but raise the question: why is such a review necessary? Yes, there may be judgments of the CC and Supreme Court of Appeal which have annoyed the executive (although the President is reported to have denied that this ‘informed his views’), but this is part of the price that we must pay for independent and impartial courts and ‘government under law’. There has to be a final arbiter of the lawfulness of the exercise of power in terms of the Constitution, and if it is not to be the highest court, what is the alternative? Is it indeed suggested, as Chaskalson asked, that we go back to parliamentary sovereignty? Who will then safeguard our rights in the face of unrestricted power?

Of course, the Presidency has already sought to ‘spin’ our understanding of the President’s words, as they have done before in this context. So we must apparently read these remarks in the spirit of the Cabinet review announced last November, to assess “the transformative nature of jurisprudence from the highest court…”, and this “must not therefore be viewed as an attempt by government to undermine the independence of the judiciary and the rule of law which are entrenched in our Constitution”.



Hugh Corder

Professor of Public Law, UCT; Director of Freedom Under Law

(Published in Business Day, 15 February 2012)

Kriegler ‘kritiseer proses, nie Mogoeng’

Maryna Lamprecht

Oudregter Johann Kriegler, voorsitter van die regsorganisasie Freedom Under Law (FUL), het gister gesê hy het nié pres. Jacob Zuma se besluit om regter Mogoeng Mogoeng as hoofregter aan te stel gekritiseer nie, maar die aanstellingsproses.

“Dit sou hoogs onbehoorlik gewees het om kommentaar te lewer op die toepaslikheid van Mogoeng as hoofregter.

“Wat ons wel gesê het, is dat die proses wat gevolg is onhandig was en dit die arme man blootgestel het aan ’n skyfskietkompetisie waarin hy die teiken was vir al wat leef om kritiek na hom te werp,” het Kriegler aan Beeld gesê.

Kort nadat Kriegler Mogoeng se aanstellingsproses in FUL se Desember-nuusbrief as ’n “groot bron van verleentheid” bestempel het, het Mogoeng op oudregter Fikile Bam se begrafnisdiens vandeesweek uitgevaar teen oudregters wat sittende regters “voortdurend en met venyn” aanval.

In die nuusbrief, onderteken deur Kriegler, beskryf hy die Regterlike Dienskommissie (RDK) se verhore vir die aanstelling van ’n nuwe hoofregter as “ ’n spektakel”.

“Dis vanweë die proses, omdat die presidensie nie die grondwetlike voorgeskrewe prosedure gevolg het nie. Hulle moes eers geraadpleeg het en dan benoem het, nie andersom nie.

“Dit stel die nominasie bloot aan allerlei kritiek.”

Op Bam se begrafnis het Mogoeng gesê dit is ’n “nuwe, jammerlike neiging van enkele dienende en afgetrede kollegas” om hul kollegas en die regstelsel in die openbaar te kritiseer.

In die nuusbrief spreek Krieg­ler sy kommer uit oor “dis­proporsionele politieke betrokkenheid by die verkiesing van regters”.

“Regerings betreur die sosiale kontrak opgesluit in die skryf van die grondwet en rammel onheilspellend aan oor howe se ‘inmenging in beleidskwessies’.”

Volgens Kriegler het die regering en ANC-woordvoerders die afgelope jaar ’n aantal onrusbarende uitsprake met betrekking tot die regbank gemaak. Hy noem Zuma, adv. Ngoako Ramatlhodi, adjunkminister van justisie, en mnr. Gwede Manta­she, ANC-sekretaris-generaal, by name.

“Op min of meer ’n direkte, dreigende manier word die regbank in dié uitsprake daarvan beskuldig dat hy homself die funksies van die ander twee pilare van die staat wederregtelik toe-eien en in die pad van transformasie staan.”
Kriegler het gister aan Beeld gesê daar is alewig spanning tussen die uitvoerende, wetgewende en regsprekende gesag.

Joint statement by Freedom Under Law and the Bingham Centre for the Rule of Law

The South African Constitution is a model to the world in its endorsement of the rule of law. The core principle is that no one is above the law, as interpreted by a judiciary that is independent of government influence. It is also one of the first constitutions in the world to include the right of access to information, in order to promote the accountability of government to the public it serves.

Our two organisations, committed to the rule of law as a fundamental democratic value, have been shocked by a series of recent proposals which threaten a u-turn in South Africa, away from the rule of law and in the direction of the authoritarian attitudes of the past. In particular, the Protection of State Information Bill will curtail openness of the exercise of public power, make it more difficult to combat corruption, and will reduce governmental accountability and fair sentencing in trials.

In addition, we are deeply concerned at the commissioning by the Cabinet of “research” to test whether the courts are pursuing goals such as “transformation”. This kind of inquiry, dressed up as an objective and innocent investigation, is completely unjustified. In the context of recent attacks on the judiciary for holding against the executive, it clearly masks an expectation that the courts should bow to the policies of the government of the day. Such a blatant misconception of the independent role of the courts was also shown recently in the support of the South African government for the suspension of the SADC Tribunal after it acted independently by holding against the government of Zimbabwe.

It is tragic that South Africa’s record as a beacon of democracy and the rule of law is being tarnished by these acts. We trust that these retrogressive measures will be rethought and withdrawn.

Justice Johann Kriegler, Chairman of the Board of Directors, Freedom Under Law, Johannesburg

Professor Sir Jeffrey Jowell QC, Director of the Bingham Centre for the Rule of Law, London
4 December 2011

Media Release : Judge president Mandlakayise John Hlophe and the judicial service commission

Last month Freedom Under Law (FUL) heard that Judge Hlophe had sat as a member of the Judicial Service Commission during the previous week. This was a most disturbing discovery as Judge Hlophe had outstanding against him two charges of gross misconduct warranting his impeachment, the first laid by the justices of the Constitutional Court in May 2008 and the second by FUL itself in May this year.

A letter was immediately despatched to the Chief Justice. In relevant part it is attached as attachment 1. The Chief Justice responded as appears from attachment 2. The FUL board considered this response and on 6 November a reply was sent to him as appears from attachment 3. No response was received and on 15 November yet another letter was sent — see attachment 4.

It has subsequently transpired that it is unlikely that either the complaint of the justices or our own complaint will be heard in the foreseeable future. This is unacceptable in our constitutional democracy. Freedom Under Law is anxiously considering what steps can be taken to put an end to this ongoing insult to the integrity of the judiciary.

Johann Kriegler
Cape Town
18 November 2011


24 October 2011

Chief Justice Mogoeng Mogoeng
Constitutional Court
Constitution Hill

By email:

To say that we were astounded would be an understatement: a person charged with the most serious allegations of both criminal conduct and gross misconduct as a judge was openly – and ostensibly with the consent of the chief justice, the ultimate arbiter of judicial propriety – screening candidates for their fitness for judicial office. It is not as if the charge against him appeared trivial or had emanated from a doubtful source. On the contrary, the charge was one of gross judicial misconduct warranting impeachment and had been submitted to the JSC by the chief justice and other justices of the Constitutional Court, the highest court in the land, based on information provided by two of their number. This charge had, moreover, upon examination by the JSC itself, been adjudged of sufficient substance and gravity to warrant a full-scale enquiry with a view to possible impeachment of the impugned judge.

Nor can it be said that the subsequent decision of the reconstituted JSC to close down such enquiry part-heard had put an end to the charge. Even less can it be said that Judge Hlophe has been exonerated. The allegation that for political reasons he had tried to interfere with the adjudication of a highly contentious matter stands unresolved.

Clearly a resort to the so-called presumption of innocence enshrined at the heart of the fair-trial rights in our Constitution is wholly misplaced in the present context. Judge Hlophe has not (at least thus far) been charged before the criminal courts. We are not here concerned with criminal proceedings but with a constitutional mechanism aimed at safeguarding the integrity of the judiciary and the legitimacy of the administration of justice. In our respectful view it is unthinkable for a man ostensibly reliably charged with gross misconduct to be a member of a body such as the JSC.

In any event, as you know full well, the Supreme Court of Appeal ordered the JSC to reopen the enquiry and as matters stand at this stage the JSC is obliged to obey such order. It seems very strange that this adjudicatory body could in such circumstances have welcomed into its deliberating bosom the very suspect whose conduct it is obliged to probe. Absent clarification, there is a reasonable apprehension of bias.

Indeed, the fact that a belated application for leave to appeal to the Constitutional Court against such order is pending further bedevils the matter. You, as chief justice, will in the ordinary course be expected to preside when such application is determined but your association with and apparent approval of the impugned judge might give rise to the question of your recusal, possibly necessitating yet another postponement of a matter that should long since have been disposed of. If the two justices are correct, an unworthy man has been exercising judicial authority for far too long already.

Then, of course, there is FUL’s own charge of gross misconduct against Judge Hlophe in which you and the disciplinary component of the JSC might well have to make findings of fact, of law and of judicial propriety. As you will recall, the charge rests on the scurrilous and groundless allegations Judge Hlophe admittedly broadcast about his colleagues. In the circumstances it is most disconcerting that the person whose conduct and credibility will have to be evaluated is ostensibly welcomed by the JSC as a person in good standing. It is difficult to escape the apprehension of partiality on the part of the tribunal due to deal with FUL’s charge against Judge Hlophe.

In the circumstances outlined above, I respectfully yet urgently request you to clarify why Judge Hlophe was allowed to form part of the JSC last week, to give an assurance that this will not happen again unless and until he has been exonerated on the charges against him, and thus to put at rest the very real apprehension that you and your colleagues on the JSC regard Judge Hlophe as a fit and proper member of the judiciary.

I would be delighted to report to my FUL colleagues that there is no reason to doubt that the charges against Judge Hlophe will be adjudicated fairly and impartially. So, please let me hear from you at your earliest convenience.

Yours sincerely

this is an electronic transmission and is therefore unsigned

Johann Kriegler


From: “Mogoeng,Chief Justice of the Republic of South Africa”
Date: 28 October 2011 3:57:04 PM SAST
To: “Johann Kriegler”
Subject: RE: Judge Hlophe and the JSC

Dear Justice Kriegler

I acknowledge receipt of your letter which was sent just before I left the country. I have just found a connection hence my belated response. Judge President Hlophe stood in for Judge President Ngoepe and I interacted with him not only during the JSC hearings but also at the Heads of Courts meeting on 9 October 2011. It may interest you to know that I do not intend to be part of the panel that will entertain the Hlophe matters in the Constitutional Court for reasons different from those you seem to have in mind. As for the rest of the concerns you have about his future involvement in the JSC hearings and the assurance you apparently seek, I choose not to act unilaterally but to involve my JSC colleagues in deciding the matter. It may well be that the implication of your concern is that he should not even sit as Judge President when candidates are interviewed for appointment to the Division of which he is the leader. The JSC as whole will reflect on your concerns and you will be informed of its decision after its next meeting in April. It may well be that Hlophe JP has to be afforded the opportunity to respond to your statement. Our engagement on this matter will end here for now.


Mogoeng Mogoeng


6 November 2011

Justice Mogoeng Mogoeng
Chambers of the Chief Justice
Constitutional Court
Constitution Hill

By e-mail:

Dear Chief Justice


The board of Freedom Under Law (“FUL”) having now had an opportunity to consider your e-mailed letter dated 28 October 2011, I am able to respond more fully. I do so with some hesitation in the light of the concluding sentence of your letter but hasten to assure you that I write in a spirit of respectful co-operation and in order to protect the image of the judiciary and thus to promote the rule of law. These, I submit, are matters in respect of which you and we in FUL have a mutual interest and a shared responsibility.

Let me add in the same spirit that FUL does not seek confrontation with you, the Judicial Service Commission (“the JSC”) or the judges president as to how you are to conduct your official business. But FUL not only shares the legitimate interest of the public at large in the manner in which such business is conducted; it also has a particular concern with the action – or, rather, the inaction – of the JSC regarding Judge Hlophe and the extremely serious charges outstanding against him.

I regret to say that we simply cannot stand by until, at the earliest, April next year while a judicial officer under such a serious cloud is not only allowed to perform the functions of the judge president of the oldest high court but continues to serve as a member in good standing of the JSC. He is under professional indictment on two charges, either of which, if proved, would warrant his dishonourable discharge. The first charge rests on the evidence of two justices of the highest court in the land and the second is founded on his own words.

It is questionable enough that Judge Hlophe has continued to perform judicial duties despite being effectively put under indictment again by the judgment in the Supreme Court of Appeal in March this year, but unless and until his name has been cleared in a proper enquiry, he is plainly not fit to weigh the fitness for appointment or promotion of judges. All of this the public knows; and indeed there has been recent adverse public comment on his participation in the activities of the JSC and ongoing disquiet in the legal profession.

FUL, of course, is both a long-standing litigant and an increasingly frustrated complainant against Judge Hlophe. We are acutely aware of the anomaly of the judge president’s ostensible acceptance by his peers serving in the very body that is to judge his fitness to continue in his high office.

Obviously it is for you to decide on your course of action – whether you convene a special meeting of the JSC or in some other manner canvass the views of the members, whether you persuade Judge Hlophe to withdraw from the activities of the JSC, delegating his duties to another, whether you consult the judges president, or whether you afford Judge Hlophe an opportunity to address you. These are steps for you to determine and we would not presume to prescribe whom you are to consult, and how.

But whatever you adjudge to be legally the correct course, we most earnestly appeal to you to exercise your ethical and moral jurisdiction as the head of the judiciary to put a firm, principled and swift end to a public affront to the rule of law. You have the authority and the standing to remedy the situation. We do not, but cannot stand by indefinitely.

We should appreciate your intimation at your earliest convenience as to whether you intend taking action in the matter, failing which we shall have to consider doing so ourselves.

Yours sincerely

this is an electronic transmission and is therefore unsigned

Johann Kriegler


15 November 2011

Justice Mogoeng Mogoeng
Chambers of the Chief Justice
Constitutional Court
Constitution Hill

By e-mail:

Dear Chief Justice


A week having passed without any response to my e-mailed letter to you dated 6 November 2011, I must conclude that you are unmoved by the gravity or urgency of the considerations I have sought to urge upon you. No point will therefore be served by renewing our entreaties to you.

At the same time Freedom Under Law cannot fecklessly accept that the charges hanging over Judge Hlophe’s head will effectively be ignored for at least another five months. We had hoped to have the mischief dealt with unobtrusively but will now have to adopt whichever alternative course seems most appropriate.

Yours sincerely

this is an electronic transmission and is therefore unsigned

Johann Kriegler

Media Release

Freedom Under Law was established to promote the rule of law throughout Southern Africa. It monitors governance practices, identifies threats to the rule of law wherever they occur and tries to intervene appropriately.

Freedom Under Law has noted with concern recent developments in Swaziland that threaten the rule of law. In particular, we note:

the suspension of Judge Thomas Masuku
the attempted suppression of allegations of misconduct against the Chief Justice
the allegations themselves
the strike by legal professionals

We call upon all those involved to resolve their disputes without delay, with due regard to the achievement of justice and the strengthening of the rule of law.

Freedom Under Law will continue to monitor events as they unfold and will assist where it can if asked to do so.