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!

Hlophe Can’t Exercise Powers of a Judge Until Proper Investigation Completed, Says FUL

MEDIA STATEMENT BY FREEDOM UNDER LAW

26 January 2020

For over 12 years now Freedom Under Law (FUL) – an NGO established to protect and advance the rule of law across Southern Africa – has pressed for a decisive outcome in complaint after complaint relating to Mr Justice Hlophe, Judge President of the Western Cape.

The decade since has vindicated that assessment. The judge it described as ‘this highly talented man [who] carried the hopes of all who are passionate about transformation of the judiciary’, having been recruited at the age of 35 from the University of Transkei direct to the Cape Bench, has gone on to plunge the judiciary in more sordid scandal and public disrepute than any judge in its history.

It is nothing short of a disgrace that nearly 12 years on, the complaint laid by all Constitutional Court judges against Judge Hlophe for his attempt to interfere in their independent consideration of matters relating to then-President Zuma remains unresolved. FUL was obliged to institute legal proceedings against the JSC to compel it to do its duty. Its conduct was, embarrassingly, characterised by the Supreme Court of Appeal as nothing less than ‘irrational’. 

Now, with that complaint still not resolved, a fresh scandal has broken. It is hardly a year since the Supreme Court of Appeal found, in the most direct terms, in a case appealed to it, that he was guilty of bias. This not of a junior judge, but a judge entrusted to lead over 30 other judges.

In his valedictory address in the Constitutional Court late last year, retiring Justice Cameron singled out the Hlophe saga as a lingering cloud over legal life in South Africa. Yet it has continued – and this week it acquired a yet darker aspect.

This week the second most senior judge in the Western Cape lodged further complaints with the JSC, alleging attempts by Judge Hlophe to interfere in litigation. It also alleges physical assaults by Hlophe JP on other judges, as well as intimidation, victimisation and abuse. 

FUL supports Nadel’s call for the urgent suspension of Judge Hlophe. It is clearly right in principle: no judge should sit in judgment while himself facing serious allegations which go to his or her fitness to hold office, let alone lead a court.

Judge Hlophe’s response to this call by an important representative body of legal practitioners is very clear.

According to the official roll of the Western Cape High Court released for Monday he has made himself the presiding judge in its most public court: the motion court. There he will engage with legal practitioners and the ordinary, often unrepresented public.

This situation is intolerable.

 Meeting today, the FUL Board resolved unanimously that the time for platitudes and tired clichés is past. The current head of the Western Cape High Court is compromised. Until such time as a proper investigation is completed and all consequential processes – which may include impeachment – are completed,  Judge President Hlophe cannot be allowed to exercise the powers of a judge.




FUL Concerned at Corruption at Highest Levels of Namibian Government

5 December 2019

Freedom Under Law (FUL) views with deep concern the implications for the rule of law throughout the region of this week’s revelations of corruption at the highest levels of government in Namibia, as uncovered in the Al Jazeera documentary, Anatomy of a Bribe.

The investigation reflects ruthless misuse of one of Namibia’s important natural resources (its fishing industry is valued at yielding USD 750 million in revenue per year). Using what it presents as detailed banking and other records and hidden camera recordings of secret meetings it provides a shocking example of how corruption-enablers in the region simultaneously impoverish ordinary people, enrich themselves, and strip Africa’s natural resources.

Among those alleged to be involved are a multinational Icelandic fishing company, Namibian ministers, officials and lawyers, front companies as well as Angolan interests. FUL applauds the decisive action taken by Namibia’s Anti-Corruption Commission, its police and prosecuting authority in within days arresting and charging two Ministers of State and senior officials.

Of particular concern to FUL is the crucial enabling role also alleged to have been played by private legal practitioners in making the fraudulent and corrupt schemes possible by acting as conduits and facilitators. FUL calls upon the Namibian Law Society to follow the example of the country’s Anti-Corruption Commission in without delay investigating the latter allegations. They concern the former (as Attorney General) chief law officer and thereafter Minister of Justice, as well as a senior Windhoek private law firm. 

So far as FUL is aware the Namibian Law Society has yet to speak a word or take a step, except to note that it has received no formal complaint against any legal practitioner. In the face of such damning allegations against some of the most prominent members of the legal profession in Namibia that seems an entirely inadequate response. Prompt and resolute investigative and disciplinary action by the watchdog of the legal profession, protector of the public and ally of the administration of justice in Namibia, the Law Society of Namibia, is now required.

ANN CROTTY: How we were saved from Sassa

25 October 2018

It’s chilling to think where we might be without an active civil society

You know you’ve done a pretty good job as a crisis committee when nobody notices you’ve stopped doing it. The experts appointed by the Constitutional Court to save the country from the consequences of chronic mismanagement by the SA Social Security Agency (Sassa) were of course tagged as a panel, not a crisis committee. But let’s face it, they were sent in to sort out a crisis. This month they presented their 10th and final report to the court. It was as insightful, detailed and instructive as the previous nine. By their own admission the problems at Sassa are far from over; Cash Paymaster Services (CPS) is still clinging onto about 2-million beneficiaries through EasyPay Everywhere cards, and they indicate the new Sassa contract with the SA Post Office is deeply problematic. The panel has serious reservations about the Post Office’s ability to do the job expected of it. The first of the panel’s reports was delivered to the court in September 2017 and gave the remarkably refreshing …

https://www.businesslive.co.za/fm/opinion/boardroom-tails/2018-10-25-ann-crotty-how-we-were-saved-from-sassa/

Review of Withdrawal of Charges against Former NDPP Nomgcobo Jiba

Following the appointment of Shaun Abrahams to the post of NDPP, Abrahams announced his withdrawal of perjury and fraud charges against Nomgcobo Jiba, a fomer acting NDPP, and her appointment as the head of an expanded National Prosecutions Services. Several court findings have been made against Jiba and Lawrence Mrwebi, special director of public prosecutions, impugning their integrity and professional conduct, including by the Supreme Court of Appeal in the case brought by FUL against Richard Mdluli.

FUL brought an urgent application seeking the suspension of Jiba and Mrwebi pending an application to review and set aside the decision to withdraw charges. Although FUL did not succeed in its urgent application, the judge noted that the issue was of paramount public importance. In the interim, the General Council of the Bar succeeded in its application to have Jiba struck from the roll of advocates.

On the 21 December 2017, the Court handed down judgment on the merits, reviewing and setting aside the decision to withdraw charges against Jiba; setting aside the decision of the President not to institute an enquiry into Jiba and Mrwebi’s fitness to hold office; ordering the institution of such an enquiry and suspending Jiba and Mrwebi from office pending the enquiry’s outcome (although the implementation of this order was suspended pending finalisation of the appeal in the GCB matter to have them struck from the roll). Jiba and Mrwebi were also prohibited, pending finalisation of the appeal in the GCB matter, from performing any function within the NPA, presenting themselves at its offices or engaging in any discussion concerning NPA cases.

This case, together with the Nxasana judgement, paves the way for a revitalised NPA — holding out the prospect of a new head of integrity and conscientiousness and rid of those actors who have made it so vulnerable to political interference.

Read Mandy Wiener’s column on the ‘clean up’ of the NPA here.

Review of the Settlement Given Former NDPP Mxolisi Nxasana

FUL together with Corruption Watch sought review of the settlement granted former National Director of Public Prosecutions, Mxolisi Nxasana. The two organisations also sought a declarator that the termination of Mr Nxasana’s appointment was unconstitutional and should be set aside; that the subsequent appointment of Mr Abrahams was invalid and was to be set aside; and that the President, owing to conflict, may not appoint, remove or suspend an NDPP but that the Deputy President is to do so.

In a hard-hitting judgement on the 8 December 2017, the North Gauteng High Court granted the relief sought by the applicants although declined to order the reinstatement of Mr Nxasana. The judgment is of critical importance to the independence of the National Prosecuting Authority clearly underlining that persons at its head must be of unimpeachable integrity and there can be no suggestion that political interference enters into their removal or appointment.

The President and the Abrahams have both launched applications for leave to appeal the judgement and the applicants are seeking confirmation of certain parts of the order before the Constitutional Court.

Click here for a media summary of the subsequent Constitutional Court judgment, hearing the parties’ leave to appeal; and confirming the High Court’s declarations of invalidity.

Hearing to compel President Zuma to suspend three top prosecutors

Joint FUL/HSF media release:

Tomorrow at 10:00 a full bench of the Pretoria High Court will hear the joint application of the Helen Suzman Foundation and Freedom Under Law to compel President Zuma to suspend Advocate Shaun Abrahams, Dr Torie Pretorius SC and Advocate Sibongile Mzinyathi, pending an enquiry into their fitness to hold office.

Action on the NPA

Joint FUL/HSF media release: 

Last night, attorneys acting for Freedom Under Law and the Helen Suzman Foundation served an urgent application to order President Jacob Zuma to suspend Adv Shaun Abrahams, National Director of Public Prosecutions, Dr Torie Pretorius SC, Head of the Priority Crimes Litigation Unit and Adv Sibongile Mzinyathi, Director of Public Prosecutions for North Gauteng, pending an enquiry into their fitness to hold office. This power to suspend is granted to President Zuma by sections 12(6)(a) and 14(3) of the National Prosecuting Authority Act.

The National Prosecuting Authority, acting through these three officials, brought obviously baseless criminal charges against Finance Minister Pravin Gordhan, Mr Ivan Pillay and Mr Oupa Magashula. This undermined respect for our criminal justice system and punched a hole in the economy. After unprecedented public outrage, Adv Abrahams withdrew the charges.

All of this demonstrates that Adv Abrahams and his two colleagues are unfit for office. No competent prosecutor would have brought the charges, or would have defended them for as long as Adv Abrahams did. He should apologise and resign, but he has refused to do so.

Fortunately, the President has the power to suspend such officials. Given their obvious failings, it would be irrational of him not to exercise this power. President Zuma can still decide to do this on his own, and we urge him to do so. The Constitution requires him to act rationally – in this case, in our view to exercise his power to suspend. We are going to court to make sure the President does what the Constitution requires.