Justice Johann Kriegler
“We had no rules, we had no principles, we had no background. There was no South African body of constitutional precedent – I was excited to be able to join in actually putting into practice that which we had preached for so long.”
A life-long human-rights lawyer, Justice Johann Kriegler headed South Africa’s transitional elections in 1994, and later that year was appointed as one of the first justices of the newly-established Constitutional Court. Since completing his term in 2002, he has worked across 40 countries on behalf of the United Nations, the African Union, the Commonwealth, and various international NGOs in electoral work, judicial training, tribunals, commissions of inquiry and arbitrations.
Africa Media Online / Paul Weinberg
We had no rules, we had no principles, we had no background. There was no South African body of constitutional precedent – I was excited to be able to join in actually putting into practice that which we had preached for so long.
Johann Kriegler
Justice of the first bench of the Constitutional Court
Early Life and Career
After completing a BA degree from the University of Pretoria and an LLB by correspondence from the University of South Africa, Johann Kriegler joined the Johannesburg Bar in 1959, took silk in 1973, and played an active role in local and national Bar affairs from the mid-60s until his elevation to the bench, chairing the Johannesburg Bar on a number of occasions. In 1984, he was appointed to the provincial court and later to the appellate court.
I was a product of a fairly unusual Afrikaner background. Dissent was part of my upbringing, although I grew up in the home of a professional soldier where things had to be neat and tidy. I think I rebelled a little against that from the beginning. I did not like rules. I battled with the Nationalist government from my student days, trying to form a Young Communist League at Pretoria University before the Suppression of Communism Act. Being a dissident, being a minority thinker, I was to be a little more serious and I was committed to the dignity of human beings.
Johann Kriegler
Justice of the first bench of the Constitutional Court
During apartheid, Kriegler, as a leading trial advocate, was active in human-rights and public-interest advocacy bodies. He was involved in transformation training with the Black Lawyers’ Association (BLA) from the early 1980s, and was a founding trustee of the Legal Resources Centre in 1978, as well as founding chair of Lawyers for Human Rights in 1981.
I was not a revolutionary. I was perfectly happy to be part of the Legal Resources Centre’s founding group to fight apartheid as we lawyers could do it through the tools that we had, and did so very successfully. I was happy to be a founder of Lawyers for Human Rights, 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.
Johann Kriegler
Justice of the first bench of the Constitutional Court
The country’s transition from apartheid to constitutional democracy in 1994 landed Kriegler in an unexpected new field. After 25 years as an advocate and 10 years as a judge, he was pitchforked headlong into chairing the country’s first democratic elections, thereafter leading the establishment of a permanent electoral agency – which he chaired until 1999 – while at the same time coming to grips with constitutional adjudication as a member of South Africa’s pioneering Constitutional Court.
It was just before Christmas 1993 and the Minister of Home Affairs was phoning from Pretoria. I was on the then Natal South Coast and the line was bad. He offered me what I thought was a job on the Electoral Court the following year. And I said, yes, of course, I’d gladly accept that. It was only on the plane down to Cape Town to go to a meeting with the Minister that I was told that I had actually accepted the job to chair the Independent Electoral Commission. I wasn’t frightened, because I didn’t know what it entailed. If I had known, I don’t think I would have accepted it. It was on all accounts a mad undertaking. All of the experts said, ‘You cannot run national elections with universal suffrage in four months. You need at least a year to do some sort of a Heath Robinson sticky-tape putting-something-together. Probably because we knew no better, we pulled it off.
Johann Kriegler
Justice of the first bench of the Constitutional Court
As he added later,
Probably because we knew no better, we pulled it off.
Johann Kriegler
Justice of the first bench of the Constitutional Court
Judgments of Interest
We have complied with Justice Kriegler’s wishes not to have any of his judgments highlighted for this section.
Appointment to the Constitutional Court
Kriegler served as a Justice of the Constitutional Court of South Africa from its establishment in 1994 until his retirement in 2002. He remembers hearing about being shortlisted for the position:
Whilst in Mexico [observing their elections], I got a message. It must have been by fax, because email wasn’t around yet in those days, asking whether I would accept nomination to the Constitutional Court … When we got back, I heard that I’d been shortlisted and I went for an interview, which was a sobering experience. I had not applied for a job … since I started as a candidate officer in 1950 and had to sit before a selection panel as a nervous youngster. I found it stimulating, and in fact it was the first time I really got excited about the possibility of actually serving on this Court.
Johann Kriegler
Justice of the first bench of the Constitutional Court
Looking back, Kriegler describes his time on the Court as professionally, jurisprudentially, politically, intellectually, and personally immensely challenging and rewarding. This was when the groundwork for the country’s constitutional jurisprudence was laid, giving substance to the broad guidelines of the Constitution (and its interim forerunner), and initially having to determine the constitutionality of the Constitution itself, confronting difficult policy choices – for instance, do you use broad brushstrokes to give general guidance or proceed step by step to avoid mistakes?
It proved to be very exciting indeed to start with a completely blank slate in virtually every respect. I think I grew a great deal in the years that I was privileged to serve on the Constitutional Court. I brought some attributes that I had acquired during my legal career and judicial experience before that – I knew the tricks of interacting with colleagues in joint sittings, the methodology of producing successive drafts, memoranda and the like, until you eventually reach a consensus or a defined dissensus.
Johann Kriegler
Justice of the first bench of the Constitutional Court
Kriegler makes the point that the juxtaposition with the Appellate Division presented its own professional conundrums and interpersonal challenges that called for surefooted diplomacy. In significant circles, the Court was regarded (or painted) as political, not judicial: this perception had to be overcome by the quality of the Court’s judgments. Centuries of conservative and executive-minded jurisprudence had to be fundamentally reappraised and adapted while not throwing the baby out with the bathwater. A new, user-friendly judicial style and ethos had to be established by a diverse group from vastly different backgrounds, many of whom were total strangers to each other.
Kriegler found it a privilege to be part of the team, joining in planning the location, design and construction of the new building, training many bright yet disadvantaged law clerks, and over many years heading the Constitutional Court Trust that oversaw the establishment of a world-class library, organised foreign bursaries for promising young constitutional lawyers, and maintained a marvellous art collection.
Life after the Constitutional Court
After leaving the Constitutional Court in 2002, Kriegler held a two-year acting judicial appointment chiefly engaged in judicial education and the training of aspirant judges, public prosecutors, and practising advocates.
Post the bench, a third career as an international consultant opened up, which has taken him across the world on judicial and other specialist missions extending from East Timor to the Caribbean, notably in Kenya, Afghanistan and the Maldives. He has lectured extensively on judicial and electoral matters in Africa, Europe, the Middle East, and the Americas, authored a standard textbook on criminal procedure, and co-drafted the initial ethical guidelines for South African judges.
As patron of advocacy training in South Africa, Kriegler has ploughed back his extensive knowledge and forensic experience in upskilling innumerable barristers at home and abroad, investing in the future while maintaining contact with the profession.
At present, he is an extraordinary professor in the Faculty of Law at the University of Pretoria, a member of the Gauteng Mental Health Review Board, founder chair of Freedom Under Law (FUL – a Rule of Law NGO), and has served, or still does, on the Nelson Mandela Children’s Fund, Project Literacy (adult education), the University of Pretoria Centre for Human Rights, SECTION 27 (formerly the AIDS Law Project), the Governance and Justice Group, and the International Foundation for Electoral Systems (IFES). He is a Life Member of the Johannesburg Bar and an Honorary Bencher of Gray’s Inn.
Family and Personal Life
Kriegler and his wife, Betty, have nine children and 17 grandchildren between them, and live in Johannesburg.
In the words of others
I am confident that in time, scholarly analysis will show that it was on the Constitutional Court that Kriegler’s full potential as a jurist came to the fore. There he was able to blend his energy, his love of the law, his intellect, and his ingenuity, and then to paste it all together with his remarkable use of language. It is in this respect that Justice Kriegler’s contribution to the law was singular. Judges, young and old, quote from his judgments to lend richness to their own.
Advocate Willem van der Linde
then General Council of the Bar Chairperson, 2003
Despite the many glowing accolades, Kriegler’s humility shines throughout his judgments and public speeches. This is despite the general acknowledgement that his major contribution, well known to the South African body politic, is that of peacemaker: the dexterous and skilful way in which he shepherded South Africa through its painful and delicate transition as head of South Africa’s electoral body between 1994 and 1999. In that regard, he was lauded for saving the country from the brink of a debilitating racial conflagration and rightfully earned the moniker ‘Mr FixIt’. Less known and written about is Kriegler the legal maverick, with a legal career – as advocate, judge and activist – spanning over half a century.
Dr Khulekani Moyo
Head of Research at the South African Human Rights Commission
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 acerbic, some would say explosive, comments ensured that counsel did not stray from their task.
Arthur Chaskalson
former Chief Justice of the Constitutional Court
Anyone close to Johann will know that his real achievements take place behind the scenes. Johann serves society, particularly its weakest members, as skillfully and passionately as he has served his profession and law in general. And he does so almost anonymously. That I think is his greatest achievement.
Martin Kriegler
advocate, Johann Kriegler’s son
My everlasting memory of Johann Kriegler at the Johannesburg Bar is of a man who believed, as he still does, in justice and fairness for every member of our society. He saw the proper practice of law as being a contribution to this cardinal principle.
Judge Lewis Goldblatt
Your relations with your colleagues have been marked by forthrightness and a deep sense of collegiality. You need to know that you have been a wonderful colleague, bringing to the work of the Court, as you did, your many years of experience, your acute mind and your undoubted writing skills. In this way you have left your indelible footprints on our developing constitutional jurisprudence. More than all of this, Bhut’ Johann, you are a great friend and fond brother.
Pius Langa
former Chief Justice of the Constitutional Court
