FUL Releases Inaugural Podcast: Building the Constitutional Court

20 July 2021


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.

FUL Sends Letter to JSC

21 April 2021

In a letter to the (JSC), Freedom Under Law (FUL) calls for action based on the findings of the Judicial Conduct Tribunal (JCT) that Judge Hlophe is guilty of gross misconduct as envisaged in S177 of the Constitution.

FUL requests, inter alia, notification of the JSC’s intention to take a decision on the recommendation to suspend Judge President Hlophe.

The letter can be downloaded here:

FUL Condemns Military Coup in Myanmar

12 February 2021


Freedom Under Law (FUL) wishes to support the statement attached issued by the Independent Lawyers’ Association of Myanmar (ILAM).

FUL, together with many around the world concerned for democracy and rule of law, condemns the military coup in Myanmar and the arbitrary detention and imprisonment of democratically elected government leaders. This attack on Myanmar’s democratic transition process must end. It must also serve to fortify the resolve of all those working towards a democratic Myanmar that recognition of equality and human rights for all the people of Myanmar, including its minorities, is the basis for any true democracy.

We know that South Africa’s transition to democracy and the principled courage of those like Nelson Mandela have long served to inspire Myanmar’s democracy activists. The beating heart of South Africa’s democracy is its Constitution and the rights and freedoms it guarantees to all who call it home.

Download the ILAM statement here:

FUL Launches Urgent Application in the Con Court Following Breach of Rule of Law

25 November 2020


Freedom Under Law has instructed its lawyers to prepare an urgent application in the Constitutional Court following a grave breach of the Rule of Law. These are the facts:

For several years the public at large, more specifically in the Western Cape, has been following with mounting alarm reports of disciplinary proceedings against the Judge President of the Western Cape High Court, Judge John Hlophe. More recently these reports have included mention of another of the Western Cape judges, Judge Mushtaq Parker, who reported last year, including recording such complaint in an affidavit, that his Judge President had accosted him in his chambers and knocked him down. 

However, when the complaint later formed the basis of a charge of gross misconduct against Judge Hlophe, Judge Parker changed course and supported his Judge President’s denial of the assault. Predictably this about-face on oath resulted in a charge of gross misconduct against him.

The charges against both judges have been examined by a committee of the Judicial Service Commission, which has recommended they be referred to tribunals to decide on impeachment. 

More than a month ago President Ramaphosa, acting in terms of the Constitution and on the advice of the JSC, ordered that Judge Parker be suspended from doing any new work pending the outcome of the proceedings against him (which include another serious charge).  Meanwhile Judge Hlophe is also due to appear before another tribunal early next month on an unrelated long-standing charge. 

Early this week Freedom Under Law, which has been following Judge Hlophe’s conduct for years, became aware that he had apparently added yet another act of gross impropriety to his chequered track-record. Notwithstanding the order of the President suspending Judge Parker, Judge Hlophe had reportedly allocated him new judicial work.

Defying the President’s order issued in terms of the Constitution would in itself constitute gross misconduct warranting impeachment. It seems incredible that the senior Judge President in the country, acting in concert with one of his judges, was defying the order, and Freedom Under Law’s attorneys have asked the judges to confirm that they were not in fact acting as alleged. 

If they fail to do so by 17:00 on 25 November, urgent proceedings will be launched in the Constitutional Court to enforce compliance with the law and the Constitution.

FUL Mourns the Death of George Bizos

9 September 2020

It is with the greatest sadness that Freedom Under Law (FUL) marks the death of board member, George Bizos. George was, in every sense, a majestic South African. He showed, at every turn, what law should and could be: humane, principled, decent, just. He will be remembered for his outsized role in opposing Apartheid’s injustices and in ushering in a new constitutional democracy. But his commitment to justice went far beyond South Africa’s borders. We at FUL will remember him, only a few years back, sitting in a magistrate’s court in Harare offering support and solidarity to those who faced politically motivated charges there.

George dedicates his book Odyssey to Freedom to “those who let me walk with them.” Hamba kahle, George. Now go walk among the giants.

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.

FUL Welcomes Conviction of Richard Mdluli, former head of Crime Intelligence

31 July 2019

Yesterday General Richard Mdluli, former head of Crime Intelligence in the SAPS, was convicted in the High Court, Johannesburg on counts of kidnapping, assault with intent to cause grievous bodily harm, assault and intimidation.

This follows a series of legal challenges, over several years, by Freedom Under Law to decisions which would have given Gen Mdluli impunity and kept him in his crucial post.  The charges against Gen Mdluli relating to kidnapping and assault of Oupa Ramogiba had initially been withdrawn by prosecutors Chauke and Jiba, while fraud and corruption charges were withdrawn by prosecutor Mrwebi.  Justice Makgoba initially granted Freedom Under Law an urgent order directing that Gen Mdluli stand down from his position pending the determination of a review of that decision.
In doing so, the Court stressed that a constitutional democracy could not tolerate a situation in which one of the country’s key crimefighters continued to perform his daily functions while himself facing serious allegations of criminality. That Gen Mdluli had not been finally convicted of these grave crimes was not the issue.

In due course Freedom Under Law’s review of the prosecutors’ decision too was upheld.

Gen Mdluli’s trial ensued, and has extended over a lengthy period, culminating in yesterday’s conviction by Justice Mokgatlheng.
While it is unfortunate that the charges of fraud and corruption were not reinstated by the NPA, it is an important vindication of the rule of law that one of South Africa’s most senior police officers has been held accountable for some of the crimes he has committed.

It is a cause for reflection that had Freedom Under Law, one of a group of civil society watchdogs active in this way, not challenged the decisions to withdraw charges and to keep Gen Mdluli at his desk, his impunity would have been assured.

Public Protector’s Report on Early Retirement an Attempt to Reheat a Long Cold Dish, says FUL

25 May 2019 

Freedom Under Law (FUL) is dismayed but not surprised to learn of the Public Protector’s findings in respect of Mr Ivan Pillay’s early retirement and Minister Pravin Gordhan’s authorisation of the retirement. The matters canvassed in the Public Protector’s report are the exact same matters as those which frame one of the most notorious episodes in the National Prosecuting Authority’s history – the decision to charge and then ultimately ignominiously withdraw charges against Gordhan, Pillay and former SARS Commissioner, Oupa Magashula.

This attempt to reheat a long cold dish and serve it up to the public as evidence of wrongdoing is on its own alarming. But that the Public Protector releases her report a mere two days after receiving responses from the implicated parties – failing to meaningfully engage those responses – makes a mockery of the most basic tenets of justice.

She does so in a week in which a court has found in respect of another of her investigations that: “the Public Protector did nothing to assure the public that she kept an open and enquiring mind and that she discovered, or at least attempted to discover the truth.”

With this her latest report, the Public Protector yet again makes no pretence of what she is about.   

FUL Welcomes Decision to Remove Nomgcobo Jiba and Lawrence Mrwebi

26 April 2019

Freedom Under Law (FUL) believes that the decision of the President to remove Nomgcobo Jiba and Lawrence Mrwebi from their positions at the National Prosecuting Authority, in keeping with the recommendations contained in the report issued by the Mokgoro Enquiry, offers an opportunity for restoration of public confidence and trust in that embattled institution.

Under the leadership of new National Director of Public Prosecution (NDPP) Shamila Batohi, the NPA can today begin in earnest a process of rebuilding the institution, free of the corrupting influences of Ms Jiba and Mr Mrwebi. As the report of the Mokgoro Enquiry makes clear, not only were Ms Jiba and Mr Mrwebi found unfit to hold office but showed themselves not to have the integrity, conscientiousness and scrupulous honesty required of such senior officials in an institution so important to our constitutional democracy. 

As is evident from the report and other information publicly disclosed about the workings of the NPA during Ms Jiba and Mr Mrwebi’s time there, they were not the only officials responsible for wrongdoing. But they were central to the wrongdoing and in sidelining and in several instances persecuting those employees within the NPA intent on performing their constitutional operations, Jiba and Mrwebi’s corrupting influence was magnified. Freed of their presence, decent people in the NPA may now get on with their jobs and the tasks required by our Constitution.

FUL Concerned at Reports of Mass Surveillance of Law-Abiding Persons, Including its CEO

12 March 2019

According to a news report yesterday, the State Security Agency under the command of former President Zuma subjected numbers of private individuals to unlawful surveillance. These included Nicole Fritz, the Executive Officer of Freedom Under Law.

The suggestion that either Ms Fritz or FUL warranted surveillance is not only preposterous but profoundly disturbing. The pursuit of a perfectly law-abiding person and an equally respectable Rule of Law agency reflects an alarming level of paranoia among our securocrats. 

It also reveals a frightening lack of judgment and common-sense on the part of those entrusted with our national security if they cannot recognise the lawful activities of public-interest agencies such as Freedom Under Law. Beside all else, it represents an unforgivable wastage of resources.
Much more ominously, it reveals a deep-seated contempt for the Constitution and the human rights it guarantees.