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

Richard Mdluli

On 17 January 2018 Richrd Mdluli was relieved of his duties as head of crime intelligence within the SAPS. However, he retires with full benefits and the departmental enquiry into his abuse of secret funds accordingly falls away. Mdluli continues to face criminal charges and his trial for kidnapping is scheduled to resume on 12 February 2018. However, the case relating to his fraud and perjury charges continues not to be re-enrolled.

Raid on the Helen Suzman Foundation

Statement by 18 NGOs

On Sunday afternoon the Helen Suzman Foundation (HSF) offices in Parktown, Johannesburg were the target of a military-style raid. Those conducting the raid clearly knew what they were looking for: computers and other documentation relating to the programmatic work of the HSF were taken. The brazen, co-ordinated nature of the operation and its targeted, selective focus are sinister. So, too, is its timing.

In its bid to promote constitutional democracy, the HSF undertakes vital but often politically sensitive and contentious activity. Among its most recent activities was the launch last Wednesday of an application in the Pretoria High Court to block the head of the Hawks from exercising any of his powers pending the outcome of its application to have his appointment set aside as irrational and unlawful.

We, the undersigned, are alarmed at the raid on the HSF. While we are divergent organisations, with divergent mandates, we all share a common precondition to operating, namely, independence and protection from capricious government intervention. On this principle we all stand united.

We recognise the raid as thuggery intended probably to intimidate the HSF and others in civil society engaged in promoting constitutional democracy, advancing human rights, fighting endemic corruption and protecting the Rule of Law.

The culprits of the raid have yet to be identified, but we note that it takes place in a context of increasing hostility by some within the state towards civil society. Should it be established that the perpetrators of the raid are in any way linked to police, army or intelligence functionaries, it will represent an attack on our democracy of the gravest kind. Even absent such linkages, government is not without responsibility. The enmity currently characterising its relationship with outspoken NGOs helps encourage the view that NGOs are fair targets.

To discharge its responsibility, government will need to act swiftly and decisively. We call on it to ensure that the raid is properly investigated and the perpetrators prosecuted.

  • Centre for Applied Legal Studies (CALS)
  • Centre for Human Rights (CHR)
  • Centre for Environmental Rights
  • Corruption Watch
  • Equal Education Law Centre
  • Freedom Under Law (FUL)
  • Lawyers for Human Rights (LHR)
  • Legal Resources Centre (LRC)
  • Ndifuna Ukwazi
  • ProBono.Org
  • SECTION27
  • Social Justice Coalition
  • Socio-Economic Rights Institute of South Africa (SERI)
  • Sonke Gender Justice
  • South African History Archive (SAHA)
  • Southern Africa Litigation Centre (SALC)
  • Treatment Action Campaign (TAC)
  • Women’s Legal Centre (WLC)

Helen Suzman Foundation and Freedom Under Law go to court to review appointment of General Berning Ntlemeza as head of Hawks

Media release

The urgent application launched yesterday by Freedom Under Law (FUL) and the Helen Suzman Foundation (HSF) aims to have General Berning Ntlemeza prevented from exercising any of his powers as national head of the Hawks, pending the outcome of a review of Police Minister Nkosinathi Nhleko’s decision to appoint Ntlemeza to this position. The review was launched simultaneously with the urgent proceedings.

FUL and the HSF say Ntlemeza’s appointment was irrational and unlawful. Proper consideration could not have been given in the appointment process to damning court findings as to his integrity, honesty and fitness to hold public office.

Judge Johann Kriegler, FUL chair, says that the proceedings form part of

FUL’s ongoing endeavour to counter the erosion of the country’s criminal justice system. “That is why we have launched court case after court case to challenge the questionable appointment or continuation in office of persons in key positions, such as the Western Cape Judge President, the head of SAPS Crime Intelligence and a deputy head of the National Prosecuting Authority, and to challenge the curious ‘resignation’ of the previous National Director of Public Prosecutions. As recent events show, the health of our democracy requires that public officials be persons of the highest integrity whose only agenda must be that of advancing the public interest. That is especially true of someone appointed to head our elite crime-fighting force, which is charged with investigating the most grave and politically sensitive matters.”