Justice and Public Interest

The Public Protector, The Committee And The Courts – What To Do With The Judicial Findings?

This brief explores the constitutional role of the Section 194 Committee tasked with establishing whether Public Protector Adv Busisiwe Mkhwebane has committed misconduct or is incompetent to hold office. It argues that in the course of carrying out its work, the Committee has no power to second guess judicial findings.

New criminal intent in hate speech law: the Prevention and Combating of Hate Crimes and Hate Speech Bill in relation to the CC judgment in Qwelane v SAHRC

This is the third brief on hate speech law and it considers components of the Prevention and Combating of Hate Crimes and Hate Speech Bill (“the Hate Speech Bill”). We also explore the relationship of the Bill and the case of Qwelane v SAHRC (Qwelane).

The Harm In Qwelane

This is the second brief dealing with the Constitutional Court’s decision in Qwelane v South African Human Rights Commission. This brief considers the issues that arise from the Court’s interpretation of the word “harm” in the Promotion of Equality and Prevention of Unfair Discrimination Act.

Hurtful, Harmful, Hateful: Heeding Qwelane

This is the first of three briefs on hate speech law and it sets out the findings in the judgment of teh Constitutional Court in Qwelane v South African Human Rights Commission, wherein the Court interrogated the hate speech provision in the Promotion of Equality and Prevention of Unfair Discrimination Act.

What Would Edmund Burke Say? Reflections on the Appointment of the Chief Justice

This second of two briefs comments on the procedure adopted by President Ramaphosa to consider the appointment of the new Chief Justice. The first brief considered the process of Constitutional Court appointments. With a focus on the Judicial Service Commission interviews held in April and October 2021.

Take Two: Appointing the Justices of the Constitutional Court

This first of two briefs will consider the process of Constitutional Court appointments. With a focus on the Judicial Service Commission interviews held in April and October 2021. The second brief comments on the procedure adopted by President Ramaphosa to consider the appointment of the new Chief Justice.

The Judicial Battleground

This brief considers the general state of the judiciary and makes the point that given the current judicial and political climate the selection of the next Chief Justice is of vital importance.

To postpone, or not to postpone? That is the question.

This brief will consider the pertinent question: What are the issues that the Constitutional Court will have to decide at the hearing of the Electoral Commission of South Africa v Minister of Cooperative Governance and Traditional Affairs and Others?

The Constitutional Court’s ruling against Jacob Zuma - What should we be thankful for?

This brief considers the ruling of the Constitutional Court against Jacob Zuma. The Constitutional Court has reaffirmed that the rule of law will prevail and everyone is equal before the law. This brief reflects on the importance of a judicial appointment process that is not subject to the whim of politicians.

Impeachment of the Public Protector

This brief explores the implications of the Independent Panel report and concludes that careful consideration of its findings about the Public Protector is necessary to protect our constitutional democracy.

State of Brutality - a constitutional crisis II: Law enforcement and the social contract

This brief, the second in the series, considers the social contract underpinning society. The brief concludes by considering the government's view with regard to its citizens' lives against past practices.

State of Brutality - a constitutional crisis I: A Good Friday murder

This brief, the first in the series, considers the circumstances leading to the death of Mr Khosa on Good Friday. The brief concludes with an overview of the reactions by government in the wake of the murder as well as the subsequent litigation.

The Constitutional Court And The Electoral Act

The Constitutional Court ruling of 11 June 2020, declared the Electoral Act as unconstitutional to the extent that it requires that adult citizens may be elected to the national assembly only through their membership of political parties. This means that the Electoral Act will need to be amended and the Court has given Parliament 24 months to do so. This brief considers two possibilities as to how the Act can be amended.

Decision Making In A Time Of Uncertainty

The brief considers the present state of uncertainty and how decision making is to be viewed and implemented. Charles Simkins introduces risk and uncertainty and then considers political emergencies, dictatorship and what to do with debt. The brief concludes with remarks regarding coping in the present uncertainty.

Crime And Punishment In Contemporary South Africa V - Concluding Remarks

This is the fifth brief in a series of five. The first brief set the scene for an analysis of quantitative information of the criminal justice process. The next three briefs set out the analysis. This brief offers some concluding remarks.

Crime And Punishment In Contemporary South Africa IV - Estimating The Performance Of The System

This is the fourth brief in a series of five. The first brief set the scene for an analysis of quantitative information of the criminal justice process. This brief is the third of three setting out the analysis. The fifth brief offers some concluding remarks.

Crime And Punishment In Contemporary South Africa III - From Crime Reporting To Cases Finalised

This is the third brief in a series of five. The first brief set the scene for an analysis of quantitative information of the criminal justice process. This brief is the second of three setting out the analysis. The fifth brief offers some concluding remarks.

Crime And Punishment In Contemporary South Africa II - From Crime To Crime Reporting

This is the second brief in a series of five. The first brief set the scene for an analysis of quantitative information of the criminal justice process. This brief is the first of three setting out the analysis. The fifth brief offers some concluding remarks.

Crime And Punishment In Contemporary South Africa I - The System And The Data

This is the first brief in a series of five. It sets the scene for an analysis of quantitative information of the criminal justice process, presented in the second, third and fourth briefs. The fifth brief offers some concluding remarks.

The regulations adopted for Level 4 of the national state of disaster and their implications

This brief deals with the nature of the Level 4 regulations and their economic, legal and political implications

The Presidential Address To The Nation: 21 April 2020

This brief sets out the key features and implications of the President’s address on 21 April 2020.

We Must Support The President

In this brief, Research Fellow Matthew Kruger considers what unified support for the President means during the crisis.

Legality In A State Of Disaster

This brief is a companion to our recently published brief entitled ‘A guide to the duties imposed on South Africans during the lockdown’. That brief should be regarded as our Coronavirus Brief 1.

Do we need a Water Use Bill?

In light of a recent announcement to develop legislation dedicated to transforming the water use sector, this brief examines the current legislative and policy provisions intended to drive water use reform. It highlights the slow pace at which transformation has taken place, underscored by a lack of political will, socio-political factors and, ultimately, an inconsistency between the law and its implementation.

China’s Loans to South Africa - Brief V

This is the final brief in a series of five that takes a look at South Africa’s recent loans from China; it looks at why the BRICS Bank was not used, on what basis government is able to refuse disclosing further information on the loans, and finishes with a conclusion for the series.

China’s Loans to South Africa - Brief IV

This is the fourth brief in a series of five that takes a look at South Africa’s recent loans from China; it is a summary of the lessons learned from the experiences of the six countries analysed, which have also taken on Chinese debt.

China’s Loans to South Africa - Brief III

This is the third brief in a series of five that takes a look at South Africa’s recent loans from China; it looks at the experiences other countries have had with Chinese debt, namely Zambia, Kenya and Ethiopia.

China’s Loans to South Africa - Brief II

This is the second brief in a series of five that takes a look at South Africa’s recent loans from China; it looks at the experiences other countries have had with Chinese debt, namely Sri Lanka, Pakistan and Argentina.

China’s Loans to South Africa - Brief I

This is the first brief in a series of five that takes a look at South Africa’s recent loans from China. This brief is an overview of South Africa’s debt situation, how the loans from China fit into this, and why we need to look at the experiences other countries have had with Chinese debt.

Companies Amendment Bill, 2018: Our submission to the Department

This brief summarises the Helen Suzman Foundation’s submission to Department of Trade and Industry regarding the Companies Amendment Bill, 2018. It proposes that in order to promote openness and transparency, the Companies Act should be amended to allow the public to access share registers by request to the Companies and Intellectual Property Commission.

Illicit Financial Flows - Part III: Laws And Institutions (Continued)

This series of briefs examines illicit financial flows in the South African context - and what is being done to stop them.

Illicit Financial Flows: A Primer - Part II: Laws And Institutions

This series of briefs examines illicit financial flows in the South African context - and what is being done to stop them.

Illicit Financial Flows - Part I: A Primer

This series of briefs examines illicit financial flows in the South African context - and what is being done to stop them.

Parliamentary Submission: Competition Amendment Bill, 2018

On 17 August 2018, The Helen Suzman Foundation Made Written Submissions In Response To The Portfolio Committee On Economic Development’s (The Committee) Call For Public Comment On The Competition Amendment Bill, 2018 (The Bill).

Parliamentary Submission: Independent Police Investigative Directorate (IPID) Amendment Bill, 2018

On 29 June 2018, the Helen Suzman Foundation made written submissions in response to the Portfolio Committee on Police’s (the Committee) call for public comment on the Independent Police Investigative Directorate (IPID) Amendment Bill, 2018 (the Bill). The HSF also made oral submissions before the Committee on 3 July 2018 at Parliament.

Constitutional damages: Recent decisions in focus

This brief explores the concept of “constitutional damages” in South Africa and why they were awarded to the loved ones and survivors in the Life Esidimeni arbitration, but not to Michael Komape’s family.

Legal Costs Orders - An Underused Tool For Accountability - Part II: The Present And Future

This brief - Part II in a two-part series - examines ongoing litigation where high-ranking public officials face the prospect of being ordered to pay legal costs in their personal capacities.

Legal Costs Orders - An Underused Tool For Accountability - Part I: A Look Through The Case Law

This brief is the first in a two-part series and will consider case law examining principles regarding cost awards against public officials in their personal capacity.

Judging the Judges

This Brief considers circumstances in which judges can be impeached for gross misconduct specifically considering the case of Judge Nkola Motata

The Life Esidimeni Arbitration: the legal basis for granting the Award

This brief discusses the legal basis for granting R1.2 million in damages to each claimant in the Life Esidimeni Arbitration Award.

The Constitutional Justice Report: Judging The Judges II - Assessment

This is the second part of a two-part brief concerning the Assessment of the Impact of the Decisions of the Constitutional Court and the Supreme Court of Appeal on the South African Law and Jurisprudence (Report). It will consider questions arising from the findings of the Report and highlight some issues of concern.

The Constitutional Justice Report: Judging The Judges? Part I - Context And Main Findings

This is the first part in a two-part brief concerning the “Assessment of the Impact of Decisions in the Constitutional Court and Supreme Court of Appeal on the Transformation of Society” , otherwise known as the Constitutional Justice Report: an assessment of South Africa’s highest courts commissioned by the Minister of Justice.

This brief looks at the relevance of rationality in the Speaker’s determination of the procedure to be followed in a vote of no confidence, as set out by the Constitutional Court in a recent judgment.

Much has been said recently in South Africa on whether courts were interfering in the realm of the executive. This brief by Anton van Dalsen shows that this discussion doesn't just take place here.

This brief discusses the recently published Traditional Courts Bill. Earlier versions of this Bill were introduced in 2008 and 2012, but were withdrawn following public opposition to them. The brief considers whether the revised version of the Bill deals with the objections to earlier versions, and whether it should be passed.

South Africa is a state based on the rule of law. What does it mean for the law to be abused in such a state?

How long does it normally take for the President to sign a bill?

In this brief, Matthew Kruger replies to David Saks (Associate Director of the South African Jewish Board Deputies), criticising Mr. Saks' support for the Board's proposal to amend the Constitution and thereby limit further the right to freedom of expression.

In Part I of this brief, it was explained that the proposal by the South African Jewish Board of Deputies ("SAJBD") to amend section 16 of the Constitution is conceptually confused and should be rejected. In Part II, it is explained why we must not only reject the proposed amendment, but also reassert our freedoms to harm, offend and hate certain people.

The extent of democratic consolidation is not manifest in tranquil times. It becomes visible in testing times. Choices made then determine whether the quality of democracy improves or deteriorates. Crises rule out the option of continuing business as usual

An overview of the HSF's continued fight in securing adequate independence for the institutions charged with protecting the constitutional rights of South Africans and all those within her borders.

This Brief discusses the Justice Administered Fund Bill

In the first of this three-part series, Matthew Kruger analysed aspects of the democratic foundations of the Constitution and argued that the source and formation of customary law is essentially democratic in nature. In the second brief, Chris Pieters provided a summary of some of the existing legal framework regulating traditional rule, as well as the attitude of the ANC to this form of rule. The third and final brief offers insight into the constitutionality of aspects of the Bill’s structure and content.

In the first of this series of briefs, Matthew Kruger analysed the democratic foundations of the Constitution and explained that the nature of the source and formation of customary law is essentially democratic. This second brief is a short summary of some of the existing legal regulations of traditional rule, as well as the ANC’s attitude towards this form of rule. The third and final brief will offer some insight into the constitutionality of aspects of the Bill’s structure and content.

This is a series of three briefs that critically analyses aspects of the Traditional and Khoi-San Leadership Bill, 2015. The first brief, written by Matthew Kruger, outlines some important features of the nature of South Africa’s constitutional democratic state that are relevant to the Bill. The second brief, written by Chris Pieters, provides a short summary of some of the existing regulation of traditional rule, as well as the ANC's attitude to this form of rule. The third brief, written by Matthew Kruger, argues that the Bill is in certain respects unconstitutional, in that its structure and content are inconsistent with the democratic foundations and values of the Constitution. The issues that we consider are broad and complex. As such, the various arguments made and conclusions reached in these short briefs are neither final nor complete. We hope, rather, that they contribute to an existing discussion around a Bill that we think is constitutionally unacceptable.

The recent criticism of the advocates’ profession for a lack of transformation has prompted the Minister of Justice, Michael Masutha, MP, to say that he will launch radical plans to make the Cape Bar, in particular, more demographically reflective of South Africa. This brief analyses the Minister’s comments.

This brief addresses transformation of the legal profession through the reformation of Legal Aid. This policy option may be unpopular in some quarters but could provide answers to the Bar’s problems. This brief is occasioned by correspondence between the author and a high-ranking official at Legal Aid, and demonstrates the need for radical policy thinking to address complex societal problems.

Summary of the seventh Helen Suzman Memorial Lecture, delivered by Ms Gill Marcus at the Gordon Institute of Business Science on the 3rd November, 2015.

Uniform Rule 49(11) was used as a method of enforcing court orders while the appeal process was underway. This has been repealed and its empty place is a reminder of how rules can be managed.

A glimpse into the tensions between the Judiciary and other constitutional entities.

In recent legal interventions involving the unlawful suspension of the National Head of the Hawks, the Helen Suzman Foundation became aware that the Minister of Police had, at the expense of taxpayers, sought the help of a large private firm. The State Attorney is the Office charged with the functions of dealing with State litigation. This revelation leaves one wondering what the State Attorney is doing.

One consequence of the recent litigation engaged in by the HSF – involving the independence of the Hawks as well as the processes adopted in the appointment of judicial candidates – relates to a range of inquiries concerning the legal system and its processes. This Brief seeks to elucidate the legal processes that are followed.

The Office of the Public Protector is not beyond review or criticism. But there is an important line that needs to be drawn beyond which criticism can degenerate into abuse whether of the incumbent or the office. This brief seeks to elucidate that very line.

The ruling by the Supreme Court of Appeal (SCA) that the ‘Spy Tapes’ are to be released to the Democratic Alliance (DA), is an important decision for the rule of law. This brief tracks the case’s history and explains what the next steps will be.

On 26 August 2014 the HSF hosted a Roundtable event on Consultation and the Constitution. The event featured Mtende Mhango, Iraj Abedian and John Jeffery. This brief summarises some of the main themes of the evening.

This brief details the HSF's ongoing litigation against the JSC.

With the release of the Public Protector’s Nkandla Report, questions will arise concerning a possible ‘motion of impeachment’. It is important that Parliament clarifies how ‘motions of no confidence’ should work in light of the Constitutional Court’s Mazibuko ruling.

This brief provides a summary of the 2013 Helen Suzman Memorial Lecture delivered by Justice Zakeria Mohammed Yacoob.

The Marikana costs judgment recently handed down by the Constitutional Court is a result of Constitution’s commitment to the separation of powers.

In this Brief, the review of Constitutional Court and Supreme Court of Appeal decisions will be examined showing some aspects: the government’s views; the reservations to it; latest developments and the possible outcomes.

Tlokwe (Potchefstroom) has been the site of an intense political battle between the ANC and the DA. The unfolding of the drama there provides incisive lessons on the rule of law.

This Brief gives an update on the HSF’s pending court case against the Judicial Service Commission (JSC).

This Brief examines the recent judgment of the Constitutional Court in Rademan v Moqhaka Municipality and Others delivered on 26 April 2013. This case dealt with the non-payment of rates on the grounds of lack of service delivery. The findings of the Court are important for future service delivery disputes of this kind.

This Brief looks at the passage of POSIB and argues that the President should not sign the Bill.

This brief raises issues around the JSC methodology.

In this Brief (‘Public Interest Litigation Threatened by Legal Practice Bill’), Kameel Premhid, HSF Intern, examines proposed changes to fee structures in the legal profession and what negative implications this could mean for the work conducted by NGOs like the HSF.

As part of our mandate to facilitate and stimulate dialogue on matters relating to our liberal constitutional democracy, the Helen Suzman Foundation is embarking on a project to research and publish a series of Briefs.