Constitutional Hill


UCT Law Faculty: Applications for Doctoral and Research Master’s Programme


The Faculty of Law at the University of Cape Town hosts scholars and students from many nations. It provides a highly interactive and friendly environment for study and research, and its doctoral and research master’s programmes are growing fast. For the 2014 intake, the Faculty is seeking 15 highly motivated individuals to join these programmes in the following fields of research:

Public Law: Human Rights; Criminal Justice; Environmental Law; Evidence; Law and Society; Women, Land and Policy; Traditional Leaders; International Law (including International Criminal Law); Constitutional Law.

Commercial Law: Comparative Law in Africa; Labour Law; Law and Development in Africa; Specific Contracts.

Private Law: Property Law (in particular (1) Expropriation Law; (2) Mineral and Petroleum Resources in Africa); Delict; Legal History; Contract; Unjustified Enrichment; Jurisprudence and Legal Theory; Family Law (including Women and Children’s Law); Legal Education; Consumer Protection; African Customary Law.

Applicants for the positions should submit online, to the Admissions Office.

The final date for submission of applications is 30 August 2014.

Short-listed candidates may be invited for interviews, which may be held in Cape Town or by teleconference in October 2014.

For further information see or contact the Faculty of Law Office at or on ++27 21 650 5409.

The suppressed NWU Task Team Report on orientation practices

The Task Team Report about initiation practices at North West University was not made public. In other words the University management suppressed the Report to protect itself. But now the Report has been leaked. Read the full report by clicking below:

—–Task team Report1
—–Task team Report2

Married same-sex couples wanted for interviews for a research project

Married Same-Sex Couples Wanted!!

What is marriage life like for same-sex couples in South Africa?  How do same-sex couples navigate everyday life? How was the wedding? Researching same-sex marriage!

  • Are you 18 years and older?
  • Are you in a same-sex relationship?
  • Are you married?

Do you want to participate in a research study?

Please contact me: Lwando Scott


Phone: 079 113 7880

SJC, Equal Education and Ndifuna Ukwazi statement about Lwandle eviction

Joint Press Statement by the Social Justice Coalition, Equal Education and Ndifuna Ukwazi

On 2 and 3 June 2014 a few hundred residents of Cape Town watched their homes being demolished in Lwandle, near Strand. An area as large as six soccer fields was cleared of its human inhabitants.

We have been at Lwandle/Nomzamo these past two days and we feel disappointed and angry. Poor and working class families were pushed behind barbed wire to watch their homes being destroyed. These evictions initiated by SANRAL have left hundreds destitute.

16-year old Xolelwa Pupu, a grade 9 student at Khanyolwethu Secondary School, is a member of Equal Education’s province-wide Leadership Committee. Her home was destroyed on Monday. She is currently writing exams, but sleeping in a community hall in Lwandle. Seventeen students in a similar position have approached EE for assistance.

No Eviction Order was ever granted by a court for the removal of these people. Rather, an Interim Interdict was granted on 24 January against those “intending to occupy” the land. It specifically excluded those “currently occupying the property at the date of the granting of this order”. The Interim Interdict was granted ex parte (without the residents being heard) on the very same day the application was filed. The interim interdict was then extended three times. In terms of the Prevention of Illegal Evictions Act (PIE) evictions require an eviction order, not an interdict. (A judgment of the Constitutional Court is presently pending on this very question. See SERI’s heads of argument.)

Premier Helen Zille has tweeted that “Neither the Province nor the City received prior notice of this eviction”. But in order for this to have been a legal eviction the Act requires that: “The court must send written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.” In any case, the City prompted SANRAL into action, as shown by a letter sent by the City to SANRAL on 22 January. The letter preceded the Interim Interdict by two days. The City’s letter said that the structures “were erected without consent”.  The City’s letter then gives SANRAL fourteen days “to rectify the situation”. The letter then cites section 6(5) of the Act which refers to when “an organ of state gives the owner or person in charge of land notice … to institute proceedings for eviction”. In other words, SANRAL were put to terms by the City to evict the occupants.

The application for an interdict by SANRAL did not attach any plans for the N2 development. Rather it attached the City’s letter and letters from better-off South Africans who objected to “squatters”.

Evictions are sometimes necessary for legitimate development purposes. When this is the case there is still a need to provide temporary shelter. In 2011 the Constitutional Court held in the Blue Moonlight Properties case that the City of Johannesburg had the duty to provide emergency housing for evicted people, despite the eviction having been brought by a private company on private land. This same moral and constitutional duty therefore now falls on the City of Cape Town — it has largely failed to fulfil it.

All of the above means that the eviction in Lwandle was unlawful.

The Constitution says in section 26(3): “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.”

Action must be taken by the City to provide emergency accommodation to affected residents. When it was pointed out to SANRAL’s Vusi Mona that the people are facing harsh rain he called this a “red herring”. This typifies the callousness of both SANRAL and the City during the past few days. Snow is now forecast nearby. We are not calling for the evicted residents to jump the housing queue but to be given temporary accommodation. The City’s claim that receiving temporary shelter equates to jumping the housing queue is a real red herring.

We welcome the opening of the community hall by the City, and the provision of food and blankets by Disaster Relief. But hundreds of people cannot be hygienically accommodated in a hall on an ongoing basis. We welcome the apology by Minister of Transport Dipuo Peters, the Minister responsible for SANRAL, and her commitment that people will be allowed to return to the land, but we intend to insist that this commitment be made in writing.

We have set up an emergency relief drop-off point to assist the affected families. Anyone willing to help with relief such as non-perishable food, water-proof clothes, and baby supplies may drop these off at The Bookery, Plein Park, 63-89, Plein Street in Cape Town, between 8h00 and 18h30, every day this week. Telephone: 0214614189.

For further information please contact:

Dustin Kramer (SJC Deputy Gen Sec) 083 674 0552
Nishal Robb (EE Head of Campaigns) 079 511 6790
Axolile Notywala (SJC Project Manager) 074 386 1584
Nombulelo Nyathela (EE Spokesperson) 060 503 4933


Call for Papers: Conference on “Twenty Years of South African Constitutionalism”, November 2014, New York

Conference: Twenty Years of South African Constitutionalism

Call for Papers: Conference on “Twenty Years of South African Constitutionalism,” Thursday, November 13, 2014 – Sunday, November 16, 2014

We invite you to propose a paper for an international and interdisciplinary conference on “Twenty Years of South African Constitutionalism,” to convene at New York Law School, starting in the evening on Thursday, November 13, 2014 and running till midday on Sunday, November 16, 2014.

South African constitutionalism has much to celebrate after its first twenty years, but also faces acute and disturbing challenges. We will seek to understand both the achievements of past years and the difficulties that have emerged along the way. We mean to explore, as intensively as possible, the question of law’s capacity to contribute to building an egalitarian, free society in South Africa – and by implication elsewhere. You’ll see below a list of potential topics, but the conference interests are as broad as the task of building a just society, and so we welcome proposals that take up issues on or off the attached list.

Broadly, this workshop seeks to generate an interdisciplinary encounter that is both wide-ranging and firmly focused on the persistent question of what law can accomplish and how.. By bringing together a specially strong and diverse group of participants, for a sustained inquiry in large settings and small ones, formal and informal, over four days together, we anticipate that this workshop will generate an ongoing conversation about law’s connection to transformation that will be rich both intellectually and practically.

We seek to address questions of both theory and action, by bringing together insights from four broad perspectives:

  • constitutional law: to take full account of the jurisprudential challenges of developing legal doctrine, particularly doctrine for a new constitutional order
  • law and society: to look closely at the roots of legal thought in social settings and the impact of law on social action
  • legal education, in particular clinical and experiential legal education: to consider the ways that the training of future lawyers can contribute to shaping the legal order
  • public interest law practice: to bring to each conversation the experience of actual law reform efforts, and to connect the perspectives of scholars and educators with the insights of those in action “on the ground”

We hope this conference will be an occasion for South African scholars, teachers and lawyers to step back and reflect on the complex events of their own country. We see this reflection taking place in dialogue with colleagues, Americans and others, who study South Africa from elsewhere. We also see it being enriched by engagement with colleagues whose principal focus is not on South Africa but on other countries, countries whose experience will shed light on the challenges and possibilities in South Africa.

Frankly, we also see this workshop as a potential catalyst to renewed attention to South Africa here in the United States. We hope that this rekindling of interest will have potential benefits for South Africa, and Africa as well; we are confident it will also make a difference in the United States. South African constitutional law addresses the same sorts of issues as American constitutional law – but in even more complex and difficult circumstances – and American scholars, lawyers and law students can learn from South African efforts to achieve full freedom and equality. We hope, therefore, that this workshop will serve as a starting point for further teaching at US schools about law in South Africa, and that it will stimulate interest by American scholars and students in seeing and experiencing South African law and society themselves.

We are very pleased to say that we anticipate having funds with which to cover part or all of the travel and lodging costs of a number of participants. Those funds, however, are limited, and our priority will be to use them to assist South Africans and others who would not otherwise be able to attend. We also want to insure that the conference presenters and participants reflect well the diversity of both South Africa and the United States, including – but of course not limited to – the contributions of early-career scholars.

We invite you to submit a paper for the conference, by sending a one-page paper proposal and your curriculum vitae to Stephen Ellmann, at, and Penelope Andrews, at, by no later than July 15, 2014. A detailed conference schedule will be available by August 22, 2014. Drafts of all papers accepted for the conference will need to be submitted by no later than October 13, 2014, one month before the conference begins; papers will be posted on the conference website so that participants can read them in advance. For participants who are presenting papers, funding support will be contingent on meeting this October 13 deadline.

Please don’t hesitate to contact any of the conference organizers if you have questions about these plans. We look forward to hearing from you.

Stephen Ellmann, Professor, New York Law School, Organizing Committee Chair,

Penelope Andrews, Dean and President, Albany Law School,

Ashley A. Kerr, Executive Symposium Editor, New York Law School Law Review,

Erik Lane, Editor in Chief, New York Law School Law Review,


Potential conference topics include, but are not limited to, the following:

(1) The legitimacy of the Constitutional Court: popular sentiments, politicians’ reactions, and judicial strategies

(2) Courts against corruption – what can courts accomplish: the jurisprudence and the pragmatics of judicial efforts to combat government misconduct and corruption; the sources of corruption in South Africa’s transitional history

(3) The state and the independent bench and bar: professional consciousness and political crosscurrents, the processes of professional and judicial advancement, representativeness and diversity, state regulation of the profession and state intervention with the judiciary

(4) The impact of other rights-protecting institutions: the Public Protector, other Chapter 9 bodies, and commissions of inquiry

(5) Parliament as a force for, or against, constitutional rights

(6) The performance of the provinces as protectors or violators of rights

(7) Public interest law in post-apartheid South Africa: which lawyers and organizations litigate constitutional issues, which issues, for which clients, and with what success? what would strengthen this work, organizationally, financially, politically, or otherwise?

(8) Legal education and social change: how can law schools prepare students to use law on behalf of oppressed people, while also ensuring that students learn the fundamental elements of law that they must master? what role can or should clinical legal education play in preparing students for this challenge? how deeply should law schools be involved in the study, teaching and reform of lawyering skills and values?

(9) Law and political struggle: do judges undercut popular political mobilization? South African examples, and insights from elsewhere in the world.

(10) Transition: the old order’s impact on the post-apartheid legal system; truth & reconciliation; and the impact of twenty years on the role of the new order’s founding generation

(11) Global constitutionalism and the development of international human rights law: South Africa’s receptivity to and influence on these worldwide processes; the role of outsiders, such as foundations, in South African legal development

(12) The role of rights: the impact of courts’ adjudication and enforcement of socioeconomic rights on democratic governance and socioeconomic outcomes, in fields such as housing, health care, water, education and environmental protection

(13) The role of rights: affirmative action, Black Economic Empowerment, and land reform – successes and pitfalls (comparisons to US and Zimbabwe)

(14) The role of rights: encountering cultural rights and diversity in the recognition and reform of African customary law of marriage and inheritance, and of the powers of traditional leaders and customary courts

(15) The role of rights: South African recognition of gay and lesbian rights as an instance of successful, elite-driven constitutionalism

(16) The role of rights: sexual violence and the limits of law’s power to alter behavior

(17) The role of force: constitutional encounters with national security and military action (comparisons to US and Israel), and with the operations of the police


Chief Justice on “fornication” and “sanctity of the family”


The Quest for the Common Good in Pluralistic Societies
University of Stellenbosch
27 May 2014


Prof C S Human, Dean of the Faculty of Law, Prof N Koopman, Dean of the Faculty of Law, Members of the Organising Committee of this Conference, International guests, esteemed speakers, distinguished guests, ladies and gentlemen, I greet you.

I wish to thank Prof Human, the University of Stellenbosch and the organisers of the Second Annual African Law and Religion Conference for extending the invitation to me to deliver a keynote address at this historic occasion. The theme of this Conference “Law and Religion in Africa: The Quest for the Common Good in pluralistic Societies”, is quite apposite in the light of the challenges we face as a continent, and the urgent need for all of us to contribute to the renaissance of Africa.

Africa yearns for peace, stability, good governance, sustainable economic development and prosperity for all, now more than ever before. Several factors have an important role to play in facilitating the attainment of these noble objectives. Law and religion are some of those factors.

The critical question that we are called upon to grapple with how the interplay between law and religion could yield a product that is for the common good of all in Africa’s pluralistic societies.

The former President of the United States of America, Thomas Jefferson had this to say about religious tolerance:

I never will, by any word or act, bow to the shrine of intolerance, or admit a right of inquiry into the religious opinions of others.”1

Africa and her people must desist from worshipping the idol of religious and thought intolerance. And that is an essential ingredient to the renaissance of Africa.

About the sanctity of religious freedom he said:

The rights to religious freedom are of the natural rights of mankind and if any Act shall be passed to repeal an Act granting those rights or to narrow its operation, such Act will be an infringement of natural rights.”2

Laws must be enacted to advance and not to narrow the operation of, the right to freedom of religion.

As you know, the intersection between religion and the law has been the subject-matter of some controversy for many years now. The resistance for allowing the legal content to be constantly fertilized by religion is understandable, although many could justifiably argue that it is based on a misapprehension of the true nature of religion and the treasures that religion generally has to offer in shaping a peaceful and prosperous society, a nation and a community of nations.

Some of the predicable objections to the influence of religion in shaping a legal and constitutional dispensation might be the potential marginalization of minority groups, that subscribe to other possibly less influential religions, those who do not subscribe to any religion, and those whose sexual orientation and philosophies of life are in direct conflict with the mainstream religions like Christianity, Judaism and Islam. Furthermore, there is a belief out there that religion has failed to keep pace with the developments of this new age and may therefore compromise the quality and speed with which programmes in several key areas of life or society must be driven.

I believe that we can only become a better people if religion could be allowed to influence the laws that govern our daily lives starting with the Constitution of any county. I hope to support this conclusion with particular reference to principles drawn from the Christian faith. I do so, not because I have no regard for other religions, but because it is the only faith in which I have invested a lot of time and energy to familiarize myself with. It is the faith I subscribe to and can therefore articulate issues that relate to it, with a measure of authority.

The levels of maladministration, crime and corruption, the extremely low levels to which morality has degenerated, the lackadaisical attitude of many government functionaries in the execution of their duties, the dishonesty as well as injustices that have permeated all facets of society, price-fixing and fronting included, would in my view be effectively turned-around significantly, if religion were to be factored into the law-making process. More importantly, there is a strong correlation already, between law and religion.

Religion is very important to many of us3. But, like any good thing, it is also open to abuse. As matter of fact, many have distorted religion and used it as the basis for the oppression of others. The law influenced by a dominant faith has at times been adulterated to serve as the tool for the extinction of smaller religions. In other jurisdictions, it is even an offence to subscribe to other faiths. Worse still, the death penalty is readily imposed on those who choose a religion other than the dominant one.

We have witnessed large-scale killings, strife, socio-political instability, economic under-development, disregard for human rights and the rule of law and the consequential poor governance. They are at times given rise to by religious intolerance where the law has not been appropriately used to regulate the enjoyment of diverse faiths. Think about what is happening in the Central African Republic, Sudan, Nigeria, Mali, DRC Congo, Israel and Palestine. Religious intolerance is a significant factor in this sad state of affairs.

Before South Africa became a constitutional democracy, Christianity was adulterated and contorted by successive white regimes to achieve the evil objective of justifying the oppression of black people. Other religions like Islam, Buddhism and African religion, to mention but some, were marginalized to the point of not recognizing their marriages. Law and religion conspired to “justify” and enforce institutionalised wickedness and a crime against humanity known as apartheid. Not only were they synchronised to prohibit the sharing of the residential areas by different race groups, it was a serious act of immorality for a black person and a white person to love one another. That love was legislated against. Because this was not for the common good of all South Africans in our pluralistic society, strife and war ensued. Multitudes of black and white South Africans lost their lives, because law and religion were not allowed to serve their original and legitimate purpose, the common good of all4 They were corrupted.

Laws must be enacted with the full realization that religion is a matter of conscience and conviction. It cannot be imposed or legislated into the hearts and minds of the people. I believe that it is an appreciation of this reality, the decisive rejection of the suppression of other religions that moved South Africans to provide, not just in an Act of Parliament, but in our supreme law, for freedom of religion in these terms:

15 (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion”
(2) Religions observances may be conducted at State or state-aided institutions provided that:
(a) those observances follow rules made by appropriate public authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary.
(3) (a) This section does not prevent Legislation recognising –
(i) marriages conducted under any tradition, or a system of religions of personal and family law’ or
(ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.
(b) Recognition in terms of paragraph(a) must be consistent with this section and the other provision of the Constitution.”
Additionally, section 9(3) of the Constitution provides that “the State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including . . . religion . . . .5

Our courts have expressed themselves on the significance of religion in the pluralistic society that we are. In S v Lawrence6 Chief Justice Chaskalson said:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.”7

From this definition, the Court laid it bare that freedom of religion in the South African context includes the right to express one’s belief publicly and to manifest that belief by worship and practice, teaching and dissemination.

The pluralistic nature of the South African society was recognised in Prince in these terms:

The right to freedom of religion is especially important for our constitutional democracy which is based on human dignity, equality and freedom. Our society is diverse. It is comprised of men and women of different cultural, social, religious and linguistic backgrounds. Our Constitution recognises this diversity. This is apparent in the recognition of the different languages, the prohibition of discrimination on the grounds of, amongst other things, religion, ethnic and social origin; and the recognition of freedom of religion and worship. The protection of diversity is the hallmark of a free and open society. It is the recognition of the inherent dignity of all human beings. Freedom is an indispensable ingredient of human dignity. 8

The entrenchment of these rights in the Constitution marked a clear break from the repressive and biased policies of the past. It also served as a clear commitment to build a society that is tolerant of diversity. The drafters of our Constitution recognised that South Africa is a religiously plural society and aimed to protect our rights to belong to any religion without fear of being discriminated against or persecuted. The entrenchment of this right in the Bill of Rights means that no law may be passed that militates against the exercise of the right of freedom of religion, conscience, thought and belief.

Peace, stability, sustainable economic development, good governance and poverty eradication depend largely on the elimination of all factors known to be ordinarily instrumental to their absence. Alive to this reality, South Africans took a conscious decision to use the supreme law as the instrument that would create a platform for the peaceful co-existence of our people in our pluralistic society. South Africa has used the law commendably, to quench the centuries old quest to recognise the right of all our people to enjoy the fundamental right of freedom of religion, conscience, thought, belief and opinion. Hitherto unrecognised marriages and partnerships have since been recognised by section 15 (3) of our Constitution.

That we do not have killings that are designed to promote any religion at the expense of the other, is largely due to the appropriate use of the law to regulate the enjoyment of all religions. It does not and should never matter how strongly opposed you are to the existence of a particular religion. All genuine religions must in law be left to co-exist with yours, for the common good of all. The creation of this constitutional possibility with a view to ensuring that all people always feel at home in their own country, reduce unnecessary tensions and facilitate the enjoyment of freedom and diversity.

In a democratic society comprising different religions or shades of the same religion, it may be necessary to impose constitutionally justifiable limitations on freedom of religion in order to reconcile the interests of the various groups and ensure that everyone’s religion, thoughts or beliefs are respected. After all, no right is absolute.

That said, religion has a very important role to play in enriching and strengthening our laws to ensure that overall governance augurs well for the common good of all in our pluralistic societies. I believe that there are sound principles that cut across the religious divide which blend well with the existing legal architecture and philosophy that could further improve our legal systems. The relationship between law and religion was aptly captured by Lord Denning, a committed Christian himself, in the following words:

. . . They say law governs one’s dealing with one’s fellows, religion concerns one’s dealings with God, but the two are quite separate. Likewise they say the law has nothing to do with morality. It lays down rigid rules which must be obeyed without questioning whether they are right or wrong. Its function is to keep order, not to do justice… . Although religion, laws and morals can be separated, they are nevertheless still very much dependent on each other. Without religion there can be no morality; and without morality there can be no law.”9

As we know all democratic orders rest on three pillars of government the Executive, Legislative and Judicial Branches although it is often made out to look like government rest on two. And the Bible says in Isaiah 33:22 that “ The Lord is our Judge, the Lord is our Lawgiver, the Lord is our King. He will save us”. Our safety and well-being as nations equally depends on the realisation and acceptance of the fact, that just as God the Father, God the Son and God the Holy Spirit are co-equal Personalities of the Trinity, so should the Executive, Legislative and Judicial Arms of the State be co-equal partners in the governance of any democratic country. None should unduly intrude in the terrain of the other, avoidable tensions should not be allowed to develop and institutional parity in relation to the allocation of resources, as well as the dignity with which members of each Arm are treated should be observed. The uncurbed dominance of one or some over the others or the other, is a recipe for undermining our constitutional democracies.

Romans 13:1-3 implore us to “do that which is good”. Verse 7’s particularly striking. It says:

Render to all men their dues, pay taxes to whom taxes are due, revenue to whom revenue is due, respect to whom respect is due and honour to whom honour is due.

A vibrant partnership between law and religion would thus facilitate even revenue collection because religion touches every facet of life. And I want to believe that other religions also espouse equivalent principles in this and other respects discussed elsewhere in this paper.

A great deal of benefit stands to be derived from a realisation of the profound similarity of purpose sought to be achieved, by religion and the law. The Constitution and pieces of legislation already in place generally bear a striking resemblance to Christian principles in many respects. The question should perhaps be, which other areas of the law could be enhanced to the benefit of all our people, by allowing religion to play a greater role than it has hitherto been allowed to play.

To buttress my belief that there really cannot be laws in place, designed to advance the best interests of a nation, that run against the essence religion, I refer to Romans 13:8-10 which says:

8. Owe no man any thing, but to love one another: for he that loveth another hats fulfilled the law.
9. For this, thou not shalt not commit adultery, thou shalt not kill, thou shalt not steal, thou shalt not bear false witness, thou shalt not covet and if there be any other commandment, it is briefly comprehended in this saying, namely, thou shalt love they neighbour as thyself.
10. love worketh no ill to his neighbour: therefore love is the fulfilling of the law.

If love is allowed to be foundational to the laws we enact and their enforcement is effective, then peace, stability and prosperity would be the inevitable long term outcome. If a way could be found to elevate the role of love and the sensible discouragement of divorce, through legal mechanisms, marital and family sanctity, and stability would be enhanced. A legal framework that frowns upon adultery, fornication, separation and divorce, subject to appropriate modification, would, idealistic as this may appear to be, help us curb the murders that flow from adultery, help us reduce the number of broken families and the consequential lost and bitter generation that seems to be on the rise, which in turn cause untold harm to society.

Another biblical principle listed above that coincides with our legal framework is “thou shalt not kill”. But it is not enough to merely prohibit killing. Measures must be in place to create an environment that is ‘hostile’ towards murder and militates against the existence of practices conducive to its commission.

Theft is the semen that breeds fraud and corruption. The Bible forbids it and so does our common law. As in the case of all other prohibitions, the question that does not always seems to receive adequate attention and currency is, what systems do we establish and what widespread habits do we cultivate to eradicate the causes of theft, fraud, and corruption. Corruption is now endemic in our part of the world. Do we take advantage of the potency of religion to make the profound difference that it can make in sharpening the teeth of our legal instruments against corruption, or do we desist from doing so for fear of being accused of being either backward or fundamentalist?

Perjury is an offence. It is on all fours with the above biblical injunction that ‘thou shalt not bear false witness ‘’. Additional biblical principles could be built into our daily living and broader legal landscape to render lying reprehensible, as a matter of practice.

An unwavering commitment to the actualization of the nation building and reconciliation project and what is in the best interest of all our people must be made by all leaders and key opinion-makers in our continent. It must be in the form of an irrevocable vow, a covenant with the people.

That unbreakable undertaking is to be made in the form of an oath in the case of Christians. The oath is so powerful that to assure Abraham that He would surely bless Abraham as He was promising to do, God Himself said: “By myself I have sworn” (Genesis 22:16). The oath prescribed by our Constitutions and laws for senior government functionaries, is provided for in the Bible. You are not to mention the name of the Lord in vain. If you do punishment will ensue. (Exodus 20;7)

An oath in the Name of God must be taken seriously or else. Law and religion blend so well in this regard. An understanding of the scriptural consequences of making promises and breaking them would help many to live up to their promises. All this can be done to benefit the nation and nations without undermining the rights of those who do not believe in anything.

It takes a person of integrity to treat the oath with the seriousness it deserves. Our moral compass therefore needs to be serviced through some legal mechanism, such as scripture-based properly enforced ethical code of conduct, to facilitate adherence to the dictates of the oath.

If States and all of us commit ourselves to respect each other’s religion and recognise and reconcile ourselves with the differences in our belief systems, most of the religious conflicts that have been plaguing our continent to the detriment of peace, stability and sustainable economic development would be a thing of the past. We owe it to ourselves and posterity to speak and work against the cruelty that have been perpetrated over the centuries, in the name of religion. Many people have endured persecution for their beliefs by those who hold different beliefs and others have been forced to join other religions. Truly the ‘hallmark of an open and democratic society is its capacity to accommodate and manage differences of intensely-held world views and life styles in a reasonable and fair manner’.10

It bears emphasis, that the world we ought to strive to create is a ‘democratic, universalistic, caring and aspirationally egalitarian society which embraces everyone and accepts people for who they are irrespective of their religious beliefs’.11 This blends well with the Preamble to the South African Constitution which says: South Africa belongs to all who live in it, united in diversity.

Religious freedom is indeed a bulwark against violent extremism. Failure to respect and entrench the culture of religious freedom could result in a climate of intolerance and impunity that emboldens those who ferment hatred and violence within ours societies. This is the best and only way of ensuring the common good of Africans in our pluralistic societies.

Address delivered by Judge Phineas Mojapelo at the launch of The Judiciary In South Africa

Address delivered by Judge Phineas Mojapelo, Deputy Judge President, South Gauteng High Court, at the launch of The Judiciary In South Africa at the Chalsty Centre, Oliver Schreiner School of Law, University of the Witwatersrand, on Wednesday 21 May 2014.

Greetings and Thanks
Programme Director, Ladies and Gentlemen
Thank you for allowing me the opportunity to share with you this important event, the launch of The Judiciary in South Africa (published by Juta Law). Let me make it clear that I mean more than the usual formal customary courtesy in stating that I am delighted to be part of this evening. The subject of the book is overdue and it is heartily welcomed. Its release coincides with the celebration of the 20th anniversary of democracy in South Africa. The authors therefore have ample material to consider to the judiciary post apartheid. The fact that the book in fact starts with a brief examination of the judiciary under apartheid South Africa makes the field even wider.

The launch of JSC

The invitation for me to come and speak here took me down memory lane back to the formation of the Judicial Services Commission, the negotiations and teething problems around composition of the Commission under the chairman of Chief Justice Corbett. When the Constitution of the democratic South Africa was adopted with the formation of the Judicial Services Commission, I remarked as the then President of the Black Lawyers Association that next in importance to the fundamental human rights enshrined in the Bill of Rights under the Constitution, the second most important thing was the formation of the Judicial Services Commission which was to oversee the shaping of the judiciary under the democratic order. The prospects of a judiciary which would play a supervisory and adjudicative role in an open society based on democratic values, social justice and fundamental human rights was just exciting. Parliamentary supremacy under which all South Africans had grown up had come to an end finally. At last the law had to be just. Parliament could no longer legislate and enforce its laws as it wished. There was now a supreme law premised on justice and equality before the law and equal protection under the law. The judiciary was tasked with the task of presiding over justice, not just legality.

Before the first interview conducted by the Judicial Services Commission, the first Commission, of which I was privileged to be a member, had a brief discussion to establish its understanding of its task is appointing judges. What makes a Judge? We looked at the key concepts of “appropriately qualified”, “fit and proper” and “the need for the Judiciary to reflect broadly racial and gender composition of South Africa”. The Commission quickly developed a common understanding of appropriately qualified and fit and proper person. There was sufficient shared understanding of those concepts to enable us to start a process of appointment of judges.

There was however some extended debate over section 174(2) that talks of “the need for the judiciary to reflect broadly the racial and gender composition of South Africa” that had to be considered when judicial officers are appointed. It was on this topic that the late Prof Etienne Murenick and I locked horns for some time before we ultimately became friends. For me the meaning was simple and straightforward: black people and women who were previously not considered for judicial appointment had to be appointed this time around. Prof Murenick however took somewhat of an academic or philosophical approach to the subject which worried me for a while. The Constitution, he said, did not require the Commission to take a statistical view of the composition of South Africa to determine how many women there were, how many black people there were, how many Chinese people, how many Afrikaners, how many Indian people, and so on and so forth, and then take a percentage and seek to appoint a judiciary which reflected that composition. What subsection (2) required, articulated the late Professor, was that the Judicial Services Commission should seek to put in place a judiciary which would have capacity to empathise with the various genders and racial compositions. He argued that it was for instance possible to have a black person who did not empathise with black aspirations. The latter statement made sense to me for a while. I remembered Bantustan leaders and urban black councillors who effectively collaborated in the oppression of their own and promoted the apartheid rule which operated against black people. I nevertheless remained worried that on his approach we were now going to look for persons empathetic to black people and women rather than women and black people themselves from the various racial segments which make up South Africa. I remembered many white bantu affairs commissioners who, in the apartheid white perspective of our time, professed and were generally accepted as understanding and empathising with black people. They had become “experts” on black lives and black aspirations.

After a long and protracted debate on the subject, I requested the Commission to allow me an opportunity to sleep on the formulation. The following day Prof Murenick and I finally reached a compromise. We included, at my request a further statement to the effect that the capacity to understand and emphasise with the aspirations of a particular race or gender would be found in the fullest and purest form in those who have lived the experience as opposed to those who have studied or grown to understand it. Another convoluted formulation. However, it was, I felt, a victory for transformation.

IBA mission to Kenya (1996) and ICJ mission to Sri Lanka (1997)

The international Missions to Kenya and to Sri Lanka in 1996 and 1997 respectively were educative. The International Bar Association had sent a Mission to Kenya following complaints by lawyers in that country and on their invitation. A similar mission was sent to Sri Lanka in 1997 by CIJL (Centre for the Independence of the Judges and Lawyers), a division of ICJ (International Commission of Jurists). Lord William Goodhart and I were sent by IBA to Kenya; in the Mission to Sri Lanka former Chief Justice Bagwat (of India) led the two of us. Both Missions had to look at threats to the position of the judiciary under the respective troubled states. We found that some of the conditions and factors which undermined the effectiveness and independence of the judiciary were underfunding, corruption in the administration of the judiciary of the lower courts (Kenya), deliberate short-term appointments of the Chief Justices (often just before retirement) and utterances and pronouncement of senior members of the executive. Imagine how I felt when on arrival at the Johannesburg high court in 2005 I found rampant corruption in the administration section in the form of selling of trial dates. Other forms of corruption such as fraudulent court orders have since emerged. Several steps were taken to uproot corruption. Although several arrests have since been made and a number of convictions achieved, the root of the cancer has not yet been removed. What one needs is a dedicated and focused task team. We have made a call for this from the administrative authorities which we hope they will heed. Happily, the judiciary has not been tainted by these misdemeanours. I can with confidence state that no member of the judiciary has played any role. An important guarantee or assurance against such an eventuality is of course the constant appointment of people of absolute impeccable integrity. If we lose at that level we will lose at all levels.

An effective judiciary

An effective judiciary is one that holds true to the values of integrity and judicial independence as summed up in the oath of office: to be faithful to the Republic of South Africa (not to individuals), to uphold and protect the Constitution and the human rights entrenched in it, and to administer justice to all persons alike, without fear, favour or prejudice and in accordance with the Constitution and the law. Happily, judges in South Africa (in the high courts, Supreme Court of Appeal and the Constitutional Court) broadly speaking, act and adhere unwaveringly to these values. The judiciary has not hesitated to take unpopular decisions as long as such decisions were in accordance with the Constitution and the law. I should qualify this by stating that I speak as a member of the judiciary and that the true picture will emerge of course if one takes into consideration the views of objective observers such as the public, researchers and authors.

In the field of discipline, however the administrators of the judiciary have not always acted with the ideal swiftness. The extent of delay in acting on and disposing of serious complaints against members of the judiciary cannot escape just criticism.

Function of the judiciary in relation to the Constitution

As a third arm of the state the judiciary has its ordinary function which is adjudicatory. In carrying out this adjudicatory function the judiciary commits itself in the oath/affirmation of office to “administrative justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law”. The judiciary applies the law and the Constitution to the facts and disputes before it, at all times recognising and applying the Constitution as the supreme law of the land.

The judiciary however has an additional function in relation to the Constitution and its core principles which are imbedded in the bill of rights. While leaders of other organs of the state, and its members (including the Executive) take an oath in terms of the Constitution, and are obliged to commit themselves in their oaths of office to “obey, observe, uphold and maintain the Constitution”, the judiciary has an added and special function to protect the Constitution. Each judge therefore swears or makes a solemn affirmation to “uphold and protect the Constitution and the human rights entrenched in it”. In addition to the other functions which every organ of state has, the judiciary therefore has an added function. As final interpreters of the Constitution, they have this protective function in relation to the Constitution. The drafters of the Constitution must have contemplated that if, as is not inconceivable, the Constitution was ever to come under threat, the judiciary has to “protect the Constitution and the human rights entrenched in it” against all others or any attack which the Constitution may face. It is a supreme and fiduciary obligation that members of the judiciary have to be alive to at all times. Implicit in the duty to protect the Constitution is an assumption that the Constitution itself, as the supreme law of the land, may indeed face the threat and danger and thus require protection. The judiciary must stay alive and alert to the possibility and ready to rise to the protective duty when and if the need should arise.

Programme Director, I wish to congratulate the publisher, editors and all contributors for this publication. It is a frank look at the judiciary. It shall also allow the judiciary an opportunity to look at itself. Given the critical role played by the judiciary in a constitutional state, a book on the judiciary in South Africa is long overdue. The advent of the book must be of interest not only to the students of law and scholars generally, but literally to every member of the judiciary in this country. I personally found it difficult to put it down once I started browsing through its pages. I am delighted to note too that the various topics appear to have been approached and treated with frankness with no issue regarded as a holy cow. As one from amongst members of the judiciary, and not purporting to speak for anyone that may feel otherwise, I heartily welcome the publication and believe that its appearance will contribute to and enrich a healthy atmosphere in which the work of the judiciary and its governance is undertaken.

High Court judgment on DA sms about “Zuma stole your money”

Here is a link to the High Court judgment between the ANC and the DA about a tweet sent by the DA regarding the Nkandla Report. SMS judgment

CASAC statement on Public protector’s Nkandla Report

CASAC Statement: Public Protector’s Report on Nkandla 24 March 2014

The Public Protector is appointed under the Constitution to strengthen constitutional democracy by probing improper conduct and maladministration in state affairs. In her report on the upgrades at the President’s private residence at Nkandla she has found that the President has violated the Constitution.

The Council for the Advancement of the South African Constitution (CASAC) believes that under these circumstances, it is necessary to consider whether the violation is of such a serious nature to require invoking the provisions of section 89 (1) of the Constitution. In our opinion, the issue is whether it would be constitutionally intolerable for the President to remain in office.

The Public Protector has made a positive finding that the President acted in breach of section 96(1) and (2) of the Constitution (paragraphs and of the Public Protector’s report). These sections place two obligations on the President. First, he must comply with the code of ethics for members of the Executive. Second, he must not act in a manner inconsistent with his office or expose himself to a situation of a conflict of interest.

CASAC Executive Secretary, Lawson Naidoo says: “The Public Protector has found that the President violated both constitutional duties. First, by wearing “two hats” as guardian of the country’s resources and as a direct personal beneficiary of improper privileges, he violated the duty to avoid placing his personal interests in conflict with those of the state. Second, by failing to cause an investigation as soon as he became aware of the expenditure into his home, he acted in a manner inconsistent with the duty to protect public funds.”

Section 89(1) (a) provides that the President may be removed from office by a resolution supported by two thirds of the members of the National Assembly, for a “serious violation” of the Constitution or the law, or in terms of s. 89 (1)(b) for “serious misconduct”. Given the findings of the investigation as a whole, the quantum of the monies expended and the role of the President, it would be difficult to sustain any argument that the findings of the Public Protector do not amount to serious violations or misconduct.

CASAC therefore believes that it would be constitutionally intolerable for Parliament not to consider whether the constitutional violation or the misconduct identified by the Public Protector fall within the category of violations in section 89 (1).

We call upon the Speaker of the National Assembly to convene a sitting of that House to deliberate on this matter.

For further enquiries please contact Lawson Naidoo 073 158 5736 or 021 685 8809

PhD and LLM scholarships in law at UCT

Claude Leon Foundation Scholarships in Constitutional Governance

1 PhD Scholarship (R120 000 for 2015-2017)

 2 LLM scholarships (R80 000 each for 2015)

Prof Pierre de Vos, the Claude Leon Chair in Constitutional Governance at the University of Cape Town Law Faculty, invites suitably qualified applicants to submit applications for the above post-graduate scholarships. The successful applicants will be South African citizens who plan to embark on either a Master’s degree by dissertation or a Doctoral degree in 2015 in the fields of South African or comparative Human Rights Law, Constitutional Law or other legal and political questions relating to constitutional governance. The dissertations will be supervised by the Chair in Constitutional Governance.

  • The successful applicants will have an excellent academic record. In making the selection, the selection panel will strive to select a cohort of recipients broadly representative of South Africa’s racial and gender composition.
  • The Doctoral scholarship will be awarded for a period of three years and the Masters scholarship for a period of one year;
  • The selected scholars will be required to provide reasonable research assistance to the Chair in Constitutional Governance; and
  • The selected scholars will be expected to be in residence at the University of Cape Town.

For further information contact: or 021 6503079.

Applicants must send a covering letter indicating whether the application is for an LLM or PhD degree, accompanied by a full curriculum vitae with the names and contact details of three referees, all available undergraduate degree transcripts and a short (no more than one page) proposal indicating the possible topic of the post-graduate research to: by no later than 28 March 2014.