Justice Johann Kriegler retires as Chair of Freedom Under Law

1 August 2023

After 15 years as Chair of Freedom under Law, Justice Johann Kriegler conveyed to its Board at its biennial meeting on 30 July 2023 that he wishes to step down as a director and Chair.

The Board resolved at the meeting to express its deepest appreciation for the dedication and unflagging leadership displayed by Justice Kriegler since the founding of Freedom under Law in 2008. For the lengthy period he has led the Board he has been unsparing of himself in work done to confront lapses in the rule of law across the Southern African region. The Board believes that without his personal bravery and clear moral leadership many abuses of power would have passed without being exposed or challenged. His tenacity has ensured that many of those challenges have been successful.

The Board believes that this is a moment to pay public tribute to a remarkable contribution to South African public life.

Justice Kriegler served on the first Constitutional Court of South Africa, retiring in 2022 at the age of 70. His illustrious career included 25 years at the Johannesburg Bar (he was elected its leader), then 10 years as a High Court and Appellate Division judge, followed by his eight years on South Africa’s top court. He gave up the first two years of his retirement to a two-year acting judicial appointment chiefly engaged in judicial education (for aspirant judges, induction orientation for new appointees and continuing education for lower and superior court judges) and the training of public prosecutors.

Justice Kriegler co-drafted the South African judicial code of conduct. He has been involved in training judges from a number of countries – ranging from Hong Kong and Iraq to Sudan, Namibia and Swaziland – with an emphasis on constitutional, human rights and electoral dispute adjudication. For almost 40 years Kriegler, the honorary patron of advocacy training in South Africa, has been actively involved in training practising advocates across the common-law world.

Justice Kriegler headed the Independent Electoral Commission through South Africa’s liberation elections in 1994 and was instrumental in establishing its first permanent elections agency, which he chaired for a number of years. Subsequently he has engaged in electoral missions, often in war-torn places, under the auspices of the United Nations, the African Union and other international agencies. These range from Timor-Leste, Liberia, Sierra Leone, Zambia, Angola, the Democratic Republic of the Congo, to Iraq, Pakistan and Afghanistan. In 2008 he headed a six-month African Union-sanctioned international audit of Kenya’s violence-torn 2007 presidential elections and in 2010/11 spent some nine months in Afghanistan adjudicating electoral disputes arising from hotly contested legislative elections.

Over the years Justice Kriegler has participated in a wide range of international missions relating to legal and related matters of public concern on behalf of such agencies as the International Commission of Jurists (ICJ), the International Bar Association (IBA), the United Nations Development Programme (UNDP), the National Democratic Institute (NDI) and the International Foundation for Electoral Systems (IFES), e.g. investigations into judicial independence in Palestine (2000), Malawi (2002) and Uganda (2007) and trial observer missions in Zimbabwe (2004). He has lectured in recent years on judicial and electoral matters in Angola, Belgium, Botswana, Canada, the Democratic Republic of the Congo, Mexico, Namibia, the Netherlands, Palestine, South Africa, Spain, Sudan, Switzerland, the United Arab Emirates, the United Kingdom, the United States, the West Indies, Zambia and Zimbabwe.

Before the advent of democracy in South Africa, Justice Kriegler was involved in establishing various human rights and public interest advocacy bodies opposed to the apartheid system of the time. He was involved with advocacy/transformation training with the Black Lawyers’ Association (BLA) from the early 1980s, a founding trustee of the Legal Resources Centre (1978) (the first and still the most important public-interest law practice in sub-Saharan Africa), and the founding chair of Lawyers for Human Rights (1981). He has served as an advisory board member of the Centre for Human Rights at the University of Pretoria.

Between international missions he has served an array of human-rights causes. These have included a number of non-governmental organisations, notably the Aids Law Project (now named Section27), which forced the South African government to abandon its Aids-denialist policy; the Nelson Mandela Children’s Fund, involved in youth development; and of course as founding Chair of Freedom Under Law. Interspersing arbitrating in commercial disputes with electoral and judicial missions to many African states and other emergent democracies, Justice Kriegler has trained dozens of electoral administrators and adjudicators in running successful elections and introduced numerous judges to principled thinking founded on the rule of law and respect for the individual.

Justice Kriegler is the author of a standard textbook on criminal procedure and has lectured in recent years on judicial and electoral matters on five continents. He is an extraordinary professor at the University of Pretoria, honorary consulting editor of Butterworths Constitutional Law Reports and a member of the editorial advisory council of the Journal of South African Law. He is an honorary life member of the Johannesburg Bar and an honorary bencher of Gray’s Inn, London.

In a public lecture in 2009, Justice Kriegler said:

“I am not an academic. I am not a jurist. I’m a journeyman lawyer who has done some fifty-five years in the courts of this land and the neighbouring territories, in just about every capacity. Even as an accused. I know the courts. I know the administration of justice. I know it from inside. I know the texture and the feel of it and I love it. And therefore, I do get passionate when I see something that I hold dear being threatened and endangered for causes that I regard as unworthy.”

Another insight comes from a former client, the exiled writer and poet, Breyten Breytenbach, who was accused of ‘terrorism’ in the 1970s. After the trial, Breytenbach had the following to say about his advocate:

“He's not a big man, but ramrod straight; intensely nervous with a kind of cold but very intelligent concentration just barely holding his passions in check; a broad forehead, blue eyes which never waver, and then suddenly rather prominent front teeth with a space for whistling between them so that when he finally smiles it transforms his face into that of a naughty kid ...[He] is ... a completely honest man profoundly inspired by humane principles, and this despite whatever political belief he may hold. It was far more difficult for me to explain and to convince Johann Kriegler of my innocence than it would be later when I was actually confronted by the judge .... [I] won't know what his ultimate assessment was, but I do know that from the moment he agreed to defend me he never once went back on his ferocious commitment to my cause. I could not have asked for a better defender.” Breyten Breytenbach True Confessions of an Albino Terrorist.

In recognition of his many and lasting contributions to law and justice, the General Council of the Bar (GCB) in 2003 bestowed on him the Sydney and Felicia Kentridge Award, an annual award in recognition of the person or institution “adjudged to have made an outstanding contribution, worthy of public recognition, to law in Southern Africa”.

Perhaps the most accurate summary of his career as a lawyer and judge is to be found in the speech given by then Chief Justice Arthur Chaskalson to mark Justice Kriegler’s retirement from the Constitutional Court in 2002, as follows:

"His career first at the Bar and then on the Bench has been one of great distinction. A leading advocate, chairman of the Johannesburg Bar Council, a judge of the Transvaal Provincial Division, a judge of the Appellate Division, and finally a judge of this court. As if that were not enough he also chaired the Independent Electoral Commission which supervised our first democratic elections, was a founding and active trustee of the Legal Resources Trust, a founder and active participant in the affairs of Lawyers for Human Rights, is the author of a leading text book on criminal law, and has taken an active role in the training of advocates, magistrates and judges. 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. From his earliest days at the Bar he made it clear where he stood in relation to our unjust society. He is not one to hide his views. He spoke his mind and he spoke clearly. He was willing to describe as evil that which in fact was evil. He would not tolerate dishonesty in any form. He believed in the cab rank rule and unlike many of his colleagues he never turned down unpopular cases if he was free to handle them. He asserted his independence and the independence of the Bar as an institution. He supported colleagues who were under pressure from the security establishment. And as he grew in the profession so did his influence. He became a leader of the Bar in every sense of the word. And the Bar benefited greatly from his leadership. When the Legal Resources Centre was established he became one of the founding trustees. When he was later appointed to the Bench he continued to be a trustee, attending its meetings and encouraging the young people who worked there and even some of the older ones. The Legal Resources Centre proved to be a source of trouble to the government and it wanted to do something about that. But it was embarrassed by the fact that its trustees consisted of many distinguished lawyers and even judges. And so messages went out to them, some subtle and some not so subtle. The message to Justice Kriegler was far from subtle. It was direct, from a person of great authority, and it was made clear what was expected of him. His response was equally direct. You can do your damnedest but I will not resign. And he did not. Fortunately most of the other trustees took a similar view and the LRC lived on.

His last eight years on the Bench as a member of this court have been the pinnacle of an illustrious career. He has been a wonderful colleague, bringing to the work of the court his years of experience, his acute mind, his writing skills which he shared with us all, and meticulous attention not only to the judgments he wrote, but also to the judgments of his colleagues. His sharp - and at times some would say explosive - ¬ comments ensured that counsel did not stray from their task. Throughout these eight years he has thrown himself into the work of the court, taking on numerous responsibilities within its structures, and without reservation has committed himself to the new constitutional order and the transformation that it demands.”

There can be few lawyers in any country who merit such accolades, earned in one of the most unjust political systems in the second half of the 20th century.

Freedom under Law is proud to have been led by such a brave and honourable combatant for the rule of law. It wishes Justice Kriegler and his wife, Betty Welz, who herself has given so much of the past 15 years to promoting FUL’s work, well in the time they will have together.

The Board has elected as its new chairman Justice Azhar Cachalia, a director since 2021.

Justice Cachalia has recently retired as a senior judge of the Supreme Court of Appeal, on which he had served for 15 years, with two court terms spent on the Constitutional Court. Previously he had served for five years on the High Court in Johannesburg. He was a founder and leading member of the United Democratic Front. He was subjected to a number of banning orders and periods of detention without trial. Justice Cachalia qualified as an attorney, becoming a partner in the leading Johannesburg firm of Cheadle, Thompson and Haysom.

After 1994 Justice Cachalia served as an adviser to the Constitutional Assembly and the convenor of the legal team drafting the new Police Act. Appointed Secretary for Safety and Security, he was chief policy adviser to the Minister for Safety and Security. He thereafter returned to professional practice as an attorney before being appointed a judge. He has also been an executive committee member of the International Commission of Jurists, served on the Soros Foundation, and is a visiting professor at Rhodes University and a member of the editorial board of the South African Law Journal.

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Personal statement from Justice Johann Kriegler re Freedom Under Law

Some 15 years ago Freedom Under Law was registered as a not-for-profit company, principally to promote the Rule of Law in Southern Africa. It has actively pursued this goal in various ways, notably by strategic litigation. This has been made possible by the generous backing of public-spirited funders and – crucially – by the exceptional services provided willingly and at no charge by some of the country’s foremost attorneys and advocates.

FUL can, with due modesty, claim success in a long list of notable interventions where the Rule of Law has been at stake, for instance regarding Richard Mdluli, Berning Ntlemeza, Nomgcobo Jiba, Shaun Abrahams, John Hlophe, Tom Moyane and Nkola Motata – all household names today. In addition, FUL recently published an in-depth report on the Judicial Service Commission, whose dereliction of its constitutional duty triggered FUL’s founding, and it is currently looking at the disciplinary performance of the Legal Practice Council. It is also involved in a number of ongoing court cases.

Judge Johann Kriegler, one of the founders, has chaired the board of directors from the outset and is now stepping down. He thinks he’s done enough, saying that he is grateful and proud to have been involved so long in significant matters of public interest, working with such a body of remarkable and dedicated people.

Issued by FUL, 1 August 2023