Johann Kriegler

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Johann has a way with words. He uses them as an artist uses paint to create powerful and at times irresistible images in support of his arguments. In his hands a hopeless case could be made to assume reasonable proportions; a good case would become unanswerable. Had he practised in the days of jury trials he might never have lost a case.

– Chief Justice Arthur Chaskalson, 28 November 2002 [5]

During his career as an advocate, Kriegler chaired the Johannesburg Bar Council in 1977 and 1980, [4] and he also served a term as secretary of the General Council of the Bar of South Africa. [3] At the same time, he was involved in human rights and public interest advocacy, particularly as a founding trustee of the Legal Resources Centre from 1978 to 1988 and as the founding chairperson of Lawyers for Human Rights from 1981. [3] [4] He also drafted the constitution of the Christian Institute, served as national president of Verligte Aksie, and served on the Transvaal board of the Urban Foundation. [3]

Kriegler later described himself as having been committed to free market capitalism: a "vehement opponent of socialism and certainly its extreme form of Marxism... [but] a human-rights lawyer, an anticommunist human-rights lawyer, with a fairly strong religious background to it". [4] Of his involvement in advocacy, he said that, "I was not a revolutionary. I was perfectly happy... to agitate, to advocate, to bring pressure to bear, to try to bring conscience to bear on decent members of my own language group. To some extent it succeeded." [1]

Supreme Court: 1984–1995

Kriegler served intermittently as an acting judge between 1976 and 1983, and in 1984 he was appointed permanently as a judge of the Transvaal Provincial Division of the Supreme Court of South Africa. [1] He was an acting judge in the Appellate Division from 1990 until 1993, when he was elevated permanently. [1]

Jurisprudence

Although his judgments covered a large variety of areas of law, he was a particular authority on criminal procedure, and in 1993 he authored the fifth edition of Hiemstra's Suid-Afrikaanse strafproses, an authoritative textbook on the subject. [4] The Mail & Guardian later said that he and John Didcott were the only apartheid-era judges "of whom it could truly be said there were no major moral blemishes on their legal records... judges who were invariably guided by the principles of equality and dignity". [6] Defending Kriegler's human rights credentials, George Bizos pointed in particular to Kriegler's refusal to resign from the Legal Resources Centre, despite a contrary instruction from the apartheid government and Chief Justice Pierre Rabie. [7]

1994 general election

In December 1993, during the final stages of the negotiations to end apartheid, Kriegler was appointed as chairperson of the Independent Electoral Commission, which was tasked with administering South African's first elections under universal suffrage. [3] He later explained that he had accepted the job because of a "grave misunderstanding": he had spoken with the Minister of Home Affairs over telephone while on holiday in the Natal South Coast, and, due to poor telephone service, had believed himself to be accepting a position on the Electoral Court. [1] [8] Dikgang Moseneke was appointed as Kriegler's deputy. [4]

The elections were held less than six months later, on 26 April 1994, despite ongoing political violence and a short-lived boycott by the Inkatha Freedom Party. [8] [9] In Kriegler's summation, "Probably because we knew no better, we pulled it off." [1] Shortly afterwards, in July 1994, the post-apartheid government appointed him as chairperson of the Commission of Inquiry into Unrest in Prisons. [3]

Constitutional Court: 1995–2002

Later in 1994, In the aftermath of the general election and pursuant to an interview with the Judicial Service Commission, [1] President Nelson Mandela appointed Kriegler as a judge of the Constitutional Court of South Africa, which would be newly established under the Interim Constitution. [2] He was among the 11 judges sworn into the apex court's inaugural bench on 14 February 1995, [10] and he served there until he retired from the judiciary on 29 November 2002, his 70th birthday. [5]

Jurisprudence

During his tenure in the Constitutional Court, Kriegler wrote opinions in a total of 29 cases: 20 majority judgments (of which 15 were unanimous), five concurring opinions, and four dissenting opinions. [4] In a minority opinion in Fose v Minister of Safety and Security, Kriegler expressed the view that the Constitutional Court's role was to "attempt to synchronise the real world with the ideal construct of a constitutional world created in the image of [constitutional supremacy]", [11] though he also argued extra-curially that it was not within any court's remit "to be seen or to aspire to being seen to be activist". [4] The Mail & Guardian regarded him ultimately as "a flamboyant maverick" comfortable with confronting the executive branch, [12] pointing to his minority opinions in President v Hugo and Du Plessis v De Klerk as examples of his judicial "boldness". [6]

The following is a list of Constitutional Court opinions that Kriegler wrote on behalf of the court's majority.

Johann Kriegler
Justice of the Constitutional Court
In office
14 February 1995 –29 November 2002
Kriegler's majority opinions
No.Case nameCitationNotes
1 Coetzee v Government; Matiso v Commanding Officer, Port Elizabeth Prison [1995] ZACC 7
2 Key v Attorney-General, Cape Provincial Division
3 S v Julies
4 S v Bequinot
5 S v Ntsele
6 Sanderson v Attorney-General, Eastern Cape
7 Wild v Hoffert
8 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat
9 Metcash Trading Limited v Commissioner for the South African Revenue Service
10 Lane and Fey v Dabelstein Co-written with Goldstone.
11 S v Mamabolo
12 Wallach v Selvan and Others
13 Ex Parte Women's Legal Centre, in re: Moise v Greater Germiston Transitional Local Council
14 Minister of Defence v Potsane; Legal Soldier v Minister of Defence
15 President v Gauteng Lions Rugby Union
16 Prince v President of the Law Society of the Cape of Good Hope Co-written with Chaskalson and Ackermann.
17 Ex Parte Minister of Safety and Security, in re: S v Walters
18 Phoebus Apollo Aviation v Minister of Safety and Security

Electoral Commission

The Constitutional Court, where Kriegler served for seven years Constitutional court of South Africa.jpeg
The Constitutional Court, where Kriegler served for seven years

After the 1994 election, Kriegler was centrally involved in founding the permanent Electoral Commission of South Africa, which superseded the Independent Electoral Commission in 1996; he was appointed as its inaugural chairperson. [8] By the end of his time at the commission, he was viewed as an "expert in electoral drip-feed tension". [13] Indeed, in this role, Kriegler had increasingly strained relations with Mandela's African National Congress government: among other things, he was a vocal critic of the government's decision to strengthen voter identification requirements (in particular by requiring the universal use of bar-coded identification documents for voter registration), [14] and in July 1998, he threatened to resign if the government did not augment the commission's budget. [15]

On 26 January 1999, ahead of that year's general election, Kriegler resigned from the Electoral Commission. [14] Addressing the press after the announcement, he denied that his decision was related to the voter identification or budget disputes; instead, he said that he had found it increasingly burdensome to lead the commission while serving as a sitting judge, and that "persisting differences of opinion about the role and function of the commission" had added to this burden. [15] He was succeeded by his former deputy, Brigalia Bam. [8]

International activities

During and after his stint at the South African Electoral Commission, Kriegler was also involved in democracy promotion initiatives abroad: he participated in a National Democratic Institute mission to Angola in 1999; in International Commission of Jurists missions on judicial independence in Palestine (2002) and Malawi (2002); and judicial and advocacy training in various other countries. [2] In addition, he was briefed by the United Nations Electoral Assistance Division on election-related assignments in various countries. [2] When he supervised East Timor's independence referendum, [16] he was harshly criticised by South African Justice Minister Penuell Maduna, who told the press that the extra-curial activities of Kriegler and Justice Richard Goldstone demonstrated that Constitutional Court justices were under-worked and lazy. [17]

Retirement

After his retirement in November 2002, Kriegler spent two further years training South African aspirant judges, prosecutors, and advocates, [1] in which capacity he co-drafted the judicial code of conduct. [2] He is an extraordinary professor of law at his alma mater, the University of Pretoria, and is also a longtime board member of the university's Centre for Human Rights. [2] He has also served as a trustee for a number of charitable organisations, including the Nelson Mandela Children's Fund, the AIDS Law Project and SECTION27, the Constitutional Court Trust, and the International Foundation for Electoral Systems. [1] [2] He also arbitrates commercial disputes. [18]

Freedom Under Law and Hlophe dispute

In 2008, Kriegler became the founding chairman of Freedom Under Law (FUL), a non-profit organisation newly established to promote the rule of law in Southern Africa through public advocacy and strategic litigation. [18] During the organisation's official launch in September 2009, Kriegler announced that FUL would seek judicial review of the Judicial Service Commission's recent decision to drop its investigation into Cape Judge President John Hlophe, who was accused of attempting to influence the Constitutional Court's decision in Thint v NDPP , a politically sensitive case. [19] Kriegler said that the decision was "gravely harmful to the rule of law". [20]

Kriegler had engaged in a minor public spat with Hlophe the prior month – after he made critical comments during a public lecture at Witwatersrand University [21] [22] – and FUL's announcement deepened the controversy. Three FUL members resigned from advisory positions in response: while Kgomotso Moroka and Cyril Ramaphosa said only that they had not been consulted on FUL's legal action, Dumisa Ntsebeza told the press that he was concerned about "the statements and words which are attributed to Judge Kriegler in the media. It's impossible to live with a very clear patronising attitude toward black people, which has become a recurring theme in his [Kriegler's] statements." [23] [24] Kriegler said that FUL would nonetheless proceed with the legal action, saying:

I was frightened at the prospect, I am still frightened at the prospect, but fortunately I had an old boer grandfather who taught me as jou voet in die stiebeuel is moet jy ry [ Afrikaans for 'when your foot is in the stirrup, you’ve got to ride']. We’ve got to go with it now... I am far too vain an old man to grow a thick skin, but all I can do is wrap myself in the blanket of duty. [25]

The resulting legal and disciplinary processes continued for over a decade. On 1 March 2021, the Sunday Times quoted Kriegler, speaking on behalf of FUL, as making further critical remarks about Hlophe, including the propositions that Hlophe was not fit to be a judge and that he had employed "contrived reasoning" in acquitting politician Bongani Bongo of corruption. [26] Hlophe's lawyer, Vuyo Ngalwana, laid a complaint against Kriegler at the Judicial Service Commission, alleging that Kriegler had misconducted himself in making these remarks publicly. In July 2022, in a ruling penned by Judge Dumisani Zondi, the Judicial Conduct Committee found against Kriegler, ordering him to retract his statement. [27]

Kriegler retired from the board of Freedom Under Law on 30 July 2023, ceding the chairmanship to retired judge Azhar Cachalia. [18] [28]

International consulting

He also continued his engagements as an international consultant on electoral and judicial matters, including on behalf of the International Commission of Jurists, the United Nations Electoral Assistance Division, and the International Bar Association. [1] [2] In 2008, he chaired the Kriegler Commission, established to recommend electoral reforms in Kenya following the 2007 presidential election and subsequent political crisis; [29]  and in 2010 he and Safwat Sidqi were the international members whom Afghan President Hamid Karzai appointed to the Electoral Complaints Commission which adjudicated disputes arising from the 2010 Afghan parliamentary election. [30]

Awards and honours

In 2003, the General Council of the Bar of South Africa presented Kriegler with its Sydney and Felicia Kentridge Award for Service to Law in Southern Africa, [4] and in 2011, he received the International Foundation for Electoral Systems's Charles T. Manatt Democracy Award for outstanding commitment to democracy and human rights. [31] He is an honorary life member of the Johannesburg Bar and an honorary bencher of Gray's Inn, London. [2]

Personal life

He is married to Betty Welz, with whom he has nine children. They live in Johannesburg. [1]

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References

  1. 1 2 3 4 5 6 7 8 9 10 11 12 13 "Justice Johann Kriegler". Our Constitution. 1 July 2020. Retrieved 21 February 2024.
  2. 1 2 3 4 5 6 7 8 9 "Johann Christiaan Kriegler". South African History Online. 3 February 2022. Retrieved 21 February 2024.
  3. 1 2 3 4 5 6 7 8 9 "Justice Johann Kriegler". Constitutional Court of South Africa. Archived from the original on 2 September 2006. Retrieved 21 February 2024.
  4. 1 2 3 4 5 6 7 8 9 10 Moyo, Khulekani (2012). "The Advocate, Peacemaker, Judge and Activist: A Chronicle on the Contributions of Justice Johann Kriegler to South African Constitutional Jurisprudence". Making the Road by Walking: The Evolution of the South African Constitution. Pretoria University Law Press. pp. 71–101. ISBN   1920538755 . Retrieved 16 December 2023.
  5. 1 2 "Constitutional Court: Retirement of Justice Johann Kriegler" (PDF). Advocate. 16 (1): 27–28. April 2003.
  6. 1 2 "Judge Kriegler rose to the challenge". The Mail & Guardian. 9 December 2002. Retrieved 21 February 2024.
  7. ↑ Bizos, George (22 April 2008). "Don't judge by colour alone". The Mail & Guardian. Retrieved 21 February 2024.
  8. 1 2 3 4 "SA's elections: How the IEC made the impossible happen". The Mail & Guardian. 7 May 2014. Retrieved 21 February 2024.
  9. ↑ "An imperfect delivery". The Mail & Guardian. 17 January 2011. Retrieved 21 February 2024.
  10. ↑ Drogin, Bob (15 February 1995). "11 Activists Sworn In for New S. African Court". Los Angeles Times. Retrieved 17 February 2024.
  11. ↑ Fose v Minister of Safety and Security [1997] ZACC 6 at 94.
  12. ↑ "Test for court still to come?". The Mail & Guardian. 16 August 2002. Retrieved 21 February 2024.
  13. ↑ "Send in Judge Kriegler". The Mail & Guardian. 10 November 2000. Retrieved 21 February 2024.
  14. 1 2 "Secret Mandela offer overturned by ANC". The Mail & Guardian. 29 January 1999. Retrieved 21 February 2024.
  15. 1 2 Daley, Suzanne (27 January 1999). "Head of South Africa's Election Commission Resigns Suddenly". The New York Times. ISSN   0362-4331 . Retrieved 21 February 2024.
  16. ↑ "Kriegler phones amid gunfire – but safe". IOL. 1 September 1999. Retrieved 21 February 2024.
  17. ↑ "Maduna escapes unbowed from latest gaffe". The Mail & Guardian. 1 September 1999. Retrieved 21 February 2024.
  18. 1 2 3 "Justice Johann Kriegler retires as chair of Freedom Under Law". Daily Maverick. 1 August 2023. Retrieved 21 February 2024.
  19. ↑ "Kriegler to challenge Hlophe decision". The Mail & Guardian. 3 September 2009. Retrieved 21 February 2024.
  20. ↑ "Hlophe in crosshairs again". News24. 3 September 2009. Retrieved 21 February 2024.
  21. ↑ "Kriegler: Don't sacrifice judicial independence". The Mail & Guardian. 19 August 2009. Retrieved 21 February 2024.
  22. ↑ "Hlophe's lawyer lashes out at 'old man' Kriegler". The Mail & Guardian. 21 August 2009. Retrieved 21 February 2024.
  23. ↑ Rademeyer, Julian (7 September 2009). "Judge 'patronises black people'". News24. Retrieved 21 February 2024.
  24. ↑ "Kriegler's 'condescending attitude' slammed". The Mail & Guardian. 7 September 2009. Retrieved 21 February 2024.
  25. ↑ "Kriegler saddles up for rough ride". The Mail & Guardian. 11 September 2009. Retrieved 21 February 2024.
  26. ↑ Mabuza, Ernest (1 March 2021). "Organisation calls for suspension of judge Hlophe after Bongo's acquittal". Sunday Times. Retrieved 21 February 2024.
  27. ↑ "Kriegler to challenge ruling that he retract remarks on Hlophe". The Mail & Guardian. 2 August 2022. Retrieved 21 February 2024.
  28. ↑ Mabuza, Ernest (1 August 2023). "Judge Kriegler steps down as Freedom Under Law chair after 15 years". Sunday Times. Retrieved 21 February 2024.
  29. ↑ "Kenya to get poll violence court". BBC News. 27 November 2008. Retrieved 21 February 2024.
  30. ↑ "Afghanistan: UN envoy advises release of international funds for elections". UN News. 17 April 2010. Retrieved 21 February 2024.
  31. ↑ "2011 IFES Democracy Awards Dinner – Judge Johann Kriegler". The International Foundation for Electoral Systems. 15 September 2011. Retrieved 21 February 2024.
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