FUL Supports Opening of Candidate Registration for Local Elections

The Constitutional Court has recently been petitioned to make orders relating to the upcoming municipal elections. The latest application by the Democratic Alliance asks the Constitutional Court to set aside the Electoral Commission’s decision to reopen candidate registration.

Freedom Under Law maintains in its submissions as amicus curiae (friend of the court) that the Court is being used as a political boxing ring with each party deriding the others as well as the Electoral Commission and attempting to us the Court for its own political ends. This is to be deplored. The Court, as the ultimate guardian of the Constitution, is to be treated with the respect and deference that it deserves rather than as an arena for bald political contestation.

FUL also maintains that the Electoral Commission’s decision to reopen candidate registration is lawful and rational. Ordinarily in electoral administration, where candidacy is dependent upon inclusion in the voters’ roll, registration of candidates logically follows after the voters’ roll has been updated, challenged and verified, i.e.“closed” in electoral jargon.

This is essentially commonsense. The voters’ roll is the authoritative record of all the enfranchised voters in a particular voting district, and is therefore the authoritative source of reference in determining whether a particular candidate is resident in that voting district. If the voters’ roll is amended, the names of candidates may have been deleted and those of potential candidates may have been added. Names of individuals may also have been moved from one voting district to another, thus— where a residential qualification is required, as in our local government elections—allowing or disallowing those individuals to stand as candidates in particular voting districts. Registrability of candidates is determined against the latest closed voters’ roll. This means that if you change the roll, you have to reopen candidate registration.

FUL’s Intervention in Application to Postpone Local Elections

The Constitutional Court recently heard argument from a number of parties in a vigorously contested constitutional case. The Electoral Commission is asking the Constitutional Court to allow a departure from the constitutionally set time-limit for the country’s local government elections that are currently scheduled for 27 October 2021.

The case has obvious political implications, but Freedom Under Law is concerned only with a constitutionally crucial objection to any attempt to circumvent the time-limits laid down by the Constitution for our elections. Certainty that elected representatives will be called to account at fixed intervals is an essential component of representative democracy. Tampering with the constitutionally fixed intervals between elections, for whatever reason, erodes their legitimacy – it is to disrupt the heartbeat of our democracy.

It is therefore no surprise that the Constitution makes no allowance for bending the rules regarding electoral timelines. Nobody, not even the Constitutional Court, has the power to depart or allow departures from the clear limits set by the Constitution. Either the Constitution must be amended to grant the Court such power – or the Constitution must be complied with.

Even if the Court could bend the Constitution, as a matter of constitutional principle it should not. Hundreds of elections have been held around the world during the pandemic. Just this past weekend presidential elections were successfully held in Zambia.

But ultimately the question is not whether it would be appropriate to postpone the elections, but whether the Constitutional Court has the power to do so.

Freedom Under Law will be arguing that everyone – the electorate, the political parties, the Electoral Commission and the Constitutional Court – must simply obey our Constitution. 

Nicole Fritz: A Fractured ANC Requires a New Chief Justice Who is Principled, Courageous and Articulate

27 August 2021

In October, Chief Justice Mogoeng’s term comes to an end and a new chief justice will need to be appointed. This new chief justice, while the senior judicial officer within the entire judiciary, will also be the presiding judicial officer for South Africa’s apex court, the Constitutional Court. She or he will take the helm of this court at roughly the same time four new judges of the Constitutional Court take office. 

If President Ramaphosa nominates as his candidate for chief justice a judge already serving on the Constitutional Court, there is then the potential for a fifth seat on the court to be filled – as Chief Justice Mogoeng’s seat as judge, and not chief justice, becomes vacant.

Quite apart from all the other requirements of the role of the chief justice, this new chief justice will potentially then lead a reconfigured Constitutional Court (almost half its seats – 5 of 11 – filled with new appointments), required to provide coherence and stability to a court and a judiciary that faces increasing and unprecedented attack.

Traits a chief justice needs to embody 

Writing earlier this year in The Conversation, distinguished legal scholar (and Freedom Under Law board member) Hugh Corder identified the following as traits the next chief justice would need to embody:

  • Strong credentials as an intellectual leader on the bench. The person appointed must enjoy the respect of their peers in the superior courts.
  • Demonstrated support for the transformative nature of our constitutional order, evidenced in judgments that secure and promote transformation to secure social justice.
  • An ability to lead the judiciary as a whole. As Corder notes, “precisely because they should be appointed for their independence of mind, among other qualities, judges need particularly nuanced and skillful leadership to ensure that they remain committed to the overall success of the constitutional project”.
  • Proven administrative and managerial skills as the chief justice not only leads a department of state, the Office of the Chief Justice, requiring that she or he provide operational and administrative guidance to the entire administration of justice but she or he must also oversee the management of her own court, the Constitutional Court.
  • Skillful public engagement, reassuring the general public “of the fair-minded, principled, fearless and incorruptible nature of those appointed as judges, and of the superior court system as a whole”.

These criteria are in addition to the requirements that all judicial officers be fit and proper, that they be independent-minded and capable of applying the law impartially and without fear, favour of prejudice.

It may seem a tall order – requiring that one person embody all of this. But the next chief justice must be both that exceptional candidate and an exceptional leader: able, as Corder explains, to lead both the judiciary and be a public leader.

Attacks on judiciary 

This requirement to lead, always essential, becomes even more critical in a time of pronounced attack on the court and judiciary. As characterised by Justice Khampepe in the recent Constitutional Court judgment finding former president Zuma guilty of contempt of court: “Never before has this Court’s authority and legitimacy been subject to the kinds of attacks that Mr Zuma has elected to launch against it and its members. Never before has the judicial process been so threatened.”

This is by no means a single threat. The nature of the argument, legal and public, directed by Ace Magashule in an attempt to undo his suspension from the ANC, the various rescission applications mounted by both the former president and the current Public Protector, demonstrate that attacks on the judiciary, its legitimacy and authority are increasingly considered fair game. The coordinated violence and looting that broke out following Zuma’s incarceration arguably demonstrates that attacks on the judiciary and the judicial process have morphed into threats against the constitutional order itself.

The most senior leader of the Constitutional Court and the of the judiciary as a whole will need to be especially circumspect when engaging in the broader political terrain. But there can be no gain saying that she or he will need to be astute, deliberate and considered in shoring up and promoting the judiciary’s legitimacy and authority.

A fractured ANC 

This is not a new calculation. Delicately balancing principle and pragmatism has always been required of the Constitutional Court and its leader. But for much of its lifetime, the Court has been able to rely, as legal scholar Theunis Roux has written, on the ANC political elite for broad support and to shield it from the political repercussions of its most politically unpopular decisions (such as the death penalty) – this elite largely appreciative of the importance of the constitutional consensus and the values of supremacy of the Constitution and rule of law.

That is not true today. A fractured ANC means a fractured ANC elite. And those aligned with Zuma and the RET faction, far from protecting the judiciary from decisions that may register as unpopular, seek actively to incite and inflame derision for the judiciary.

Now more than ever, a chief justice who is principled, courageous and articulate is needed.

Nicole Fritz is the CEO of Freedom Under Law.

This piece first appeared in News24, on the 27th August 2021, available here.

FUL Welcomes Decision to Prosecute Bathabile Dlamini

24 August 2021

MEDIA STATEMENT BY FREEDOM UNDER LAW

Freedom Under Law welcomes the decision by the Gauteng Director of Public Prosecutions to prosecute former Minister of Social Development Bathabile Dlamini for perjury or alternatively for giving false evidence. This is an important step in securing accountability in the long-running social grants crisis.

The charges relate to Ms Dlamini’s testimony provided before the Constitutional Court in connection with her personal involvement in the social grants crisis.

An application by Black Sash, in which FUL intervened, resulted in an exhaustive set of orders from the Court, among them that an inquiry be established to determine the Minister’s role and responsibility in the social grants crisis.

Following its consideration of the inquiry’s report, the Constitutional Court ordered that Ms Dlamini be held personally liable and that she herself pay a portion of the legal costs of the proceedings. It noted that the inquiry’s report suggested “very strongly that some of Minister Dlamini’s evidence under oath in the affidavits before this Court and orally before the Inquiry was false” and accordingly directed the registrar of the Court to forward a copy of the report to the National Director of Public Prosecutions.

The disclosure today of the decision to prosecute Ms Dlamini is an outcome of the Court’s direction. Important as it is, FUL maintains there is yet further accountability to be secured. While it was successful in its recent application to the Constitutional Court for an order to rerun the auditing and verification process of the profits earned by Cash Paymaster Services (CPS) in the unlawful social grants contract, that process has yet to be concluded.

FUL is hopeful that the conclusion of a proper auditing and verification process will ultimately result in an  an order that those profits be repaid.

FUL Opposes Delay to Local Government Election

19 August 2021

MEDIA STATEMENT BY FREEDOM UNDER LAW

On Friday the Constitutional Court will hear argument from a number of parties in a vigorously contested constitutional case. The Electoral Commission is asking the Constitutional Court to allow a departure from the constitutionally set time-limit for the country’s local government elections that are currently scheduled for 27 October 2021. 

The case has obvious political implications, but Freedom Under Law is concerned only with a constitutionally crucial objection to any attempt to circumvent the time-limits laid down by the Constitution for our elections. Certainty that elected representatives will be called to account at fixed intervals is an essential component of representative democracy. Tampering with the constitutionally fixed intervals between elections, for whatever reason, erodes their legitimacy – it is to disrupt the heartbeat of our democracy. 

It is therefore no surprise that the Constitution makes no allowance for bending the rules regarding electoral timelines. Nobody, not even the Constitutional Court, has the power to depart or allow departures from the clear limits set by the Constitution. Either the Constitution must be amended to grant the Court such power – or the Constitution must be complied with. 

Even if the Court could bend the Constitution, as a matter of constitutional principle it should not. Hundreds of elections have been held around the world during the pandemic. Just this past weekend presidential elections were successfully held in Zambia. 

But ultimately the question is not whether it would be appropriate to postpone the elections, but whether the Constitutional Court has the power to do so. 

Freedom Under Law will be arguing that everyone – the electorate, the political parties, the Electoral Commission and the Constitutional Court – must simply obey our Constitution.

Download FUL’s written submission below:

FUL Releases Inaugural Podcast: Building the Constitutional Court

20 July 2021

MEDIA STATEMENT BY FREEDOM UNDER LAW

Available from today on Freedom Under Law’s website and on Soundcloud, FUL’s inaugural podcast is a discussion with Judge Johann Kriegler about the early years of building South Africa’s Constitutional Court and what was required to establish its legitimacy and authority.

Conversational and reflective, the podcast encompasses everything from the distinctive green robes that were chosen for the judges, the individual friendships that were forged and what it was like to be the subject of a high-profile and controversial recusal application.

Although recorded six months ago, its release is a timely reminder of the intensive and strategic work required to build a Court that is the ultimate guardian of South Africa’s constitutional democracy.

The first in a series of podcasts, titled “Building the Court”, this initial episode prompts serious reflection on our country’s judicial system while offering the pleasure of listening in on the recollections of one of the apex Court’s pioneers.

Nicole Fritz: Zuma’s Contempt is Not Just for The Court, But For Democracy

1 July 2021

When acting chief justice Sisi Khampepe took her place on the judicial dais in the Constitutional Court on Tuesday to deliver judgment in the matter of the Zondo state capture commission versus Jacob Gedleyihlekisa Zuma, she seemed to encounter a problem with sound. A judicial clerk hovered before the dais, waiting for Khampepe to look up from the judgment so she could be alerted to the need to switch on her microphone. If one were looking for signs and metaphors — and we were all looking on this much-anticipated judgment day — it seemed not the most propitious signal.

And yet there can be no question that when this ringing and forceful judgment was delivered, finding the former president guilty of the crime of contempt of court and ordering him to an unsuspended sentence of 15 months’ imprisonment, it was in every sense as if Khampepe had breathed out judicial fire.

This wasn’t done by reference to the majesty of law, to legal tenets and principles distilled over centuries, to any ostensible invincibility or indestructible essence of our legal systems. Rather, at every turn Khampepe seemed to underline the precariousness and vulnerability of the judicial system. There she sat, alone at the judicial dais, constructed to accommodate the full 11 Constitutional Court judges and positioned so they do not loom over proceedings but meet eye to eye with those they are addressing.

Right at the introduction of her address she spoke of the “lonely work of the judiciary”, of how it must work “impervious to public commentary and political rhetoric”. She repeated that the judiciary has no constituency, no purse and no sword, and that instead it must rely on moral authority for its legitimacy and to do its work; that it is the trust and confidence of the people in this authority on which it solely depends.

Again and again she underlined the exceptional and extraordinary nature of the case, not shying from the fact that there was little applicable case precedent to guide her. So markedly distinct and unprecedented was the matter, said Khampepe, that she had “found very little solace in our jurisprudence.”

As the apex court, the ultimate guardians of the constitution, she explained that allegiance is owed to the “constitution alone, and accordingly [we] have no choice but to respond as firmly as circumstances warrant when we find our ability to uphold it besieged”. This north star of our constitutional order ensures that however unprecedented the matter, “I do no more than apply the law, cautiously, to these new and unusual circumstances”.

Against this solitary, daunting work of the courts, Khampepe set out the attack authored by Zuma that imperilled the judicial system: “Never before has this court’s authority and legitimacy been subject to the kinds of attacks that Mr Zuma has elected to launch against it and its members. Never before has the judicial process been so threatened.”

Her judgment makes clear that it isn’t just that Zuma has singularly failed to heed the authority of the commission of inquiry into state capture, submit the affidavits and attend its proceedings as he is required to do. It isn’t only that he has failed to comply with the Constitutional Court’s own ruling that he observe the commission’s summonses and directives, although this is the nub of the contempt offence. His conduct is aggravated, made more egregious still, in that he scorned the ample opportunities afforded him by the court to come to explain his actions, instead using these opportunities for further inflammatory, insidious attack, casually but calculatingly publicly denigrating the court’s authority.

The nature of the harm caused by the offence of contempt of court, says Khampepe, is most particularly “the overall damage caused to society by conduct that poses the risk of rendering the judiciary ineffective and eventually powerless [and] is at the heart of why our law forbids such conduct.”

That comes with an important caveat — that scurrilous, entirely unsubstantiated smears directed at the judiciary are to be protected against not to protect “the feelings and reputations of judges” but to preserve “their ability and power to perform their constitutional duties”. Robust and informed public debate about judicial affairs is an entirely different matter, and the courts are certainly not to be shielded from either the public or all criticism.

Khampepe writes for a clear majority of the court: seven to two. It is her judgment that is the law. Already though, supporters of Zuma point to the minority judgment written by judge Leona Theron, in which judge Chris Jafta concurs, to maintain — as is the leitmotif in all of Zuma’s attacks on the judiciary — that he has been unfairly victimised. They would do well to heed the third paragraph of Theron’s judgment: “Mindful of the intense public interest in this case, let me be absolutely clear: both this judgment and the main judgment would impose a period of imprisonment on Mr Zuma because he is in contempt of this court’s order.”

The judges are unanimous that Zuma is guilty of contempt of court owing to his scandalous disrespect for the court. The minority would, however, have imposed a suspended sentence, conditional on compliance with the commission’s orders, or have referred the matter to the director of public prosecutions for prosecution.

This is not to minimise the nature of the disagreement between the majority and the minority and the robustness with which it is engaged. But in a land where a previous occupant of the highest office the constitution can bestow, who has sworn twice over to uphold and protect the constitution, can also be the author of the gravest threat ever faced by the judicial process, it is essential that opportunity for fabrication, mistruth and misrepresentation is limited.

Khampepe sought none to accompany her as she headed down her constitutionally emblazoned judicial path, yet she was not remiss in acknowledging all those who have made that constitutional path possible, writing that Zuma’s scurrilous claims to unfair treatment from the court “are an insult to the constitutional dispensation for which so many women and men fought and lost their lives”.

And if she opened her judgment with an explicit reference to the words of Nelson Mandela, she closed with a far more oblique tribute: “I, too, cherish the ideal of a democratic and free society in which all persons are both as equal in opportunity as they are in accountability, before the law.”

Tracing a line from Madiba’s speech, alone in the dock during the Rivonia trial, facing the prospect of the death penalty at the instance of a cruel, unjust, racist regime, to Khampepe — alone on the judicial dais, facing down grave, unprecedented attack on the legitimacy of our democratic constitutional order — can’t but leave you humbled … at the greatness and the gravity, and the grubbiness that has come between.

Nicole Fritz is CEO of Freedom Under Law

This piece was first published in Business Day, on 30 June 2021, available here.

Nicole Fritz: Tea Leaf Reading Portends Ill Winds for SA’s Constitutional Democracy

15 May 2021

South Africans love to read the tea leaves — to see in small fragments a prediction of our larger fate. As fragments go, the recent Judicial Service Commission (JSC) interviews for judicial appointments were hardly small. That fragment doesn’t just say something potentially profound about the fate of our constitutional democracy: in itself it has profound things to say about our judiciary and the administration of justice.

The interviews for the Constitutional Court, SA’s highest court, were especially hard to watch. The interview of judge Dhaya Pillay in particular was an unconscionable spectacle. Commissioner Julius Malema was allowed to scream at and berate her with no intervention from fellow commissioners. Not only was there no intervention, but the chief justice, presiding over the process, then hijacked her interview to make several supposed revelations of his own. She, not being party to the incident he recalled, could not fairly be expected to respond in any way that might have meaningfully assisted in assessing her suitability for appointment.

As an interview process it was the very definition of arbitrariness and irrationality, with a heavy dose of incipient violence and intimidation thrown in. It is perversely ironic when you consider that it is a process intended to deliver judges to a court that must strike down any exercise of public power that is demonstrably irrational and arbitrary.

The interviews have been fiercely criticised: more so the outcome of the interviews, with many commentators outraged by the omission of judge David Unterhalter from the shortlist of candidates sent to the president by the JSC. Unquestionably, he is an exceptionally skilled lawyer (I think I can say that without being accused of any obvious bias, even as a former spouse) but whether he or any of the candidates really deserves to be on the country’s highest court is anyone’s guess.

That’s because the process of interviews was so unmoored by any defined conception of what we want from Constitutional Court judges. Lines of questioning from the commissioners seem intended to test candidates about their individual experiences mentoring and training juniors as a demonstration of their commitment to transformation. Candidates were also required to respond to particular allegations circulated publicly for certain political advantage but without any real credible evidence that judges are open to being bought.

There were few opportunities for candidates to articulate thicker conceptions of what transformation would mean and look like for the judiciary and country at large. Judge Jody Kollapen perhaps came closest when he expressed the view that too much focus had been paid at the time of transition to reconciliation and too little to economic transformation, and that reconciliation could not be achieved without all South Africans being able to access the economy.

Great store was placed by the commissioners, or so it seemed, on the particular candidate’s experience acting on the court to which she sought appointment. Little attention has been paid thus far to just how problematic it may be in making acting experience an almost inflexible prerequisite for elevation. Acting appointments are made by the justice minister after consulting the senior judge of the relevant court: in the case of the Constitutional Court the president makes the appointment on the recommendation of the minister with the concurrence of the chief justice. Insistence on having acted before being considered eligible for appointment essentially makes the path to confirmation as judge of the highest court the chief justice’s gift to give.

The interviews have been fiercely criticised: more so the outcome of the interviews, with many commentators outraged by the omission of judge David Unterhalter from the shortlist of candidates sent to the president by the JSC. Unquestionably, he is an exceptionally skilled lawyer (I think I can say that without being accused of any obvious bias, even as a former spouse) but whether he or any of the candidates really deserves to be on the country’s highest court is anyone’s guess.

That’s because the process of interviews was so unmoored by any defined conception of what we want from Constitutional Court judges. Lines of questioning from the commissioners seem intended to test candidates about their individual experiences mentoring and training juniors as a demonstration of their commitment to transformation. Candidates were also required to respond to particular allegations circulated publicly for certain political advantage but without any real credible evidence that judges are open to being bought.

As an interview process it was the very definition of arbitrariness and irrationality, with a heavy dose of incipient violence and intimidation thrown in

It also raises this issue: do we, or more relevantly the JSC, have any conception of what we want from a Constitutional Court judge, as opposed, say, to a judge of the Supreme Court of Appeal? All must surely be supremely skilled jurists. The constitution however requires that “[a]t all times, at least four members of the Constitutional Court must be persons who were judges at the time they were appointed to the Constitutional Court”. That leaves the possibility that at least seven need not be.

Deeply reflected

That stipulation appears to have fallen into abeyance, understood to the extent any notice is given it to be a historical anachronism, meant to regulate appointments only at the time of transition. Certainly there is much merit in having a professional judicial class, promotion to the Constitutional Court representing the apex of such a profession. It is especially true now that the court is the highest court, and so the ultimate last word, even regarding non-constitutional matters. It would be hard work indeed for the professional judges on the court were they to be outnumbered by judges coming from the ranks of academia or civil society with little practical experience of what is required for a court to function.

But there is something to be said about enriching the court’s deliberations with the contributions of persons who, if not running courts daily, have nonetheless deeply reflected on and engaged with some of our most critical constitutional dilemmas — such as the realisation of socioeconomic rights within a grossly budgetary-constrained state.

Judge Johann Kriegler has said of judge Albie Sachs, appointed to the Constitutional Court without having previously served as a judge, and the symbiosis that characterised that early court: “He taught me what to write; I taught him how to write it.” That may be to understate both their contributions, but it does encapsulate the riches that are to be had when skills, experiences and perspectives are pooled. It feeds a conception of diversity not just as redress but as strength and excellence — an offering greater than the sum of our parts.

Which brings me back to the tea leaves. During his interview, Malema asked Unterhalter whether, if genuinely committed to transformation, he should not just sit the interview process out and not offer himself for appointment. It was the fulcrum of an attitude that seemed to prevail throughout the interviews of non-black African candidates — a sense that they showed temerity in even offering themselves for critical roles in our public life.

It’s an attitude we as South Africans need to think deeply about — about how we might aspire to be more than the sum of our parts when so many seem so sceptical of us being even just the sum of our parts.

Nicole Fritz is CEO of Freedom Under Law.

This piece was first published in Business Day on 7 May 2021, available here.

FUL Welcomes Con Court Order over Profits Made Through Illegal CPS-SASSA Contract

1 April 2021

MEDIA STATEMENT BY FREEDOM UNDER LAW

Freedom under Law welcomes the order granted by the Constitutional Court this morning in its application for an order that the profits made over the duration of the CPS/SASSA social grants contract be audited and verified afresh. The application was necessary because the Court’s original auditing and verification it had ordered at the time of the social grants crisis was not properly complied with.

SASSA’s auditors maintained that they had not been granted full access to the working papers of CPS’s auditors and required further financial information relating to other entities within the network of companies of CPS’s parent company, Net 1. Even without full access, however, SASSA’s auditors estimated that CPS may have understated its profits by approximately R800 million, bringing its total profit to well over a billion Rand.

In terms of today’s judgment, SASSA’s auditors are to be provided with outstanding documentation by CPS’s auditors so that an updated verification report can be submitted to Treasury. If Treasury does not approve the updated verification report, it must make its own determination of the profits earned by CPS or explain to the Court what further processes are required to determine the profit. The Court deferred FUL’s application for an order for repayment of profits to SASSA, holding that “it would be proper to consider the issue of profits once all the necessary information is placed before this Court.”

Zuma’s Conduct is a Calculated Defiance of the Rule of Law, says FUL

2 February 2021

MEDIA STATEMENT BY FREEDOM UNDER LAW

Mr Zuma has now gone too far. When he took office as president of our country he promised to be faithful to the Republic and to obey, observe, uphold and maintain the Constitution and all other law. Many witnesses have told the Zondo Commission that he and his associates have breached each of those promises. 

The country has watched Mr Zuma play clever tricks, desperately trying to avoid his having to respond to these accusations. The Constitutional Court has now made plain that the time for this ducking and diving is past. Instead of complying with its simple instruction, Mr Zuma has now resorted to his well-worn defence of victimhood wrapped in populism. 

This time, though, it is breathtaking in its presumption. Mr Zuma not only blames the dismissal of each of his lawyers’ evasive tactics on dishonest judges but seriously equates his fear of the witness stand with the heroic battle for freedom and justice of the late Robert Sobukwe. This is bare-faced effrontery, even for Mr Zuma’s spin-doctors.

Of course Mr Zuma’s conduct – ably aided and abetted throughout by his lawyers – has been in calculated defiance of the rule of law. If he persists in his refusal to respond to the mass of allegations, we look forward to the law taking its course.