Johann Kriegler

Johann Christiaan Kriegler (born 29 November 1932) is a retired South African judge who served in the Constitutional Court of South Africa from February 1995 to November 2002.

The son of an Afrikaner professional soldier, Kriegler was born in Pretoria on 29 November 1932.

He matriculated in 1949 at the King Edward VII School in Johannesburg and attended the South African Military Academy for two years thereafter.

In 1954, he graduated with a BA degree from the University of Pretoria, where he was politically active as an opponent of the apartheid-era National Party government.

After that, he completed his LLB in 1958, earned by correspondence through the University of South Africa while he was working as a judicial clerk.

An Afrikaner from Pretoria, Kriegler was called to the Johannesburg Bar as an advocate in 1959 and took silk in 1972.

In 1959, Kriegler was called to the Johannesburg Bar, where he practised as an advocate for the next 25 years; he took silk in 1972.

He was a prominent trial lawyer with a varied client list that included poet Breyten Breytenbach, homeland leaders Mangosuthu Buthelezi and Lucas Mangope, activist cleric Beyers Naudé, white politicians Eschel Rhoodie and Eugene Terreblanche, and the Church of Scientology.

Breytenbach, whom Kriegler defended against treason charges, described Kriegler in his memoir as "the rarest of all Afrikaners; a completely honest man profoundly inspired by humane principles".

Kriegler served intermittently as an acting judge between 1976 and 1983, and in 1984 he was appointed permanently as a judge of the Transvaal Provincial Division of the Supreme Court of South Africa.

During his career as an advocate, Kriegler chaired the Johannesburg Bar Council in 1977 and 1980, and he also served a term as secretary of the General Council of the Bar of South Africa.

At the same time, he was involved in human rights and public interest advocacy, particularly as a founding trustee of the Legal Resources Centre from 1978 to 1988 and as the founding chairperson of Lawyers for Human Rights from 1981.

He also drafted the constitution of the Christian Institute, served as national president of Verligte Aksie, and served on the Transvaal board of the Urban Foundation.

Kriegler later described himself as having been committed to free market capitalism: a "vehement opponent of socialism and certainly its extreme form of Marxism... [but] a human-rights lawyer, an anticommunist human-rights lawyer, with a fairly strong religious background to it".

Of his involvement in advocacy, he said that, "I was not a revolutionary. I was perfectly happy... to agitate, to advocate, to bring pressure to bear, to try to bring conscience to bear on decent members of my own language group. To some extent it succeeded."

In addition to his trial advocacy, he gained prominence for his involvement in human rights law, particularly as founding chairperson of Lawyers for Human Rights from 1981.

Formerly a practising silk in Johannesburg, he joined the bench as a judge of the Transvaal Provincial Division in 1984.

He was also the first chairperson of the post-apartheid Independent Electoral Commission and Electoral Commission of South Africa.

Upon gaining judicial appointment, he served in the Supreme Court of South Africa from 1984 to 1995, first in the Transvaal Division and then, from 1993, in the Appellate Division.

He was an acting judge in the Appellate Division from 1990 until 1993, when he was elevated permanently.

While a sitting judge, Kriegler was appointed to chair the Electoral Commission in December 1993, and he oversaw both the administration of the first post-apartheid election in April 1994 and the commission's own establishment as a permanent institution.

Although his judgments covered a large variety of areas of law, he was a particular authority on criminal procedure, and in 1993 he authored the fifth edition of Hiemstra's Suid-Afrikaanse strafproses, an authoritative textbook on the subject.

The Mail & Guardian later said that he and John Didcott were the only apartheid-era judges "of whom it could truly be said there were no major moral blemishes on their legal records... judges who were invariably guided by the principles of equality and dignity".

Defending Kriegler's human rights credentials, George Bizos pointed in particular to Kriegler's refusal to resign from the Legal Resources Centre, despite a contrary instruction from the apartheid government and Chief Justice Pierre Rabie.

In December 1993, during the final stages of the negotiations to end apartheid, Kriegler was appointed as chairperson of the Independent Electoral Commission, which was tasked with administering South African's first elections under universal suffrage.

He later explained that he had accepted the job because of a "grave misunderstanding": he had spoken with the Minister of Home Affairs over telephone while on holiday in the Natal South Coast, and, due to poor telephone service, had believed himself to be accepting a position on the Electoral Court.

Dikgang Moseneke was appointed as Kriegler's deputy.

The elections were held less than six months later, on 26 April 1994, despite ongoing political violence and a short-lived boycott by the Inkatha Freedom Party.

In Kriegler's summation, "Probably because we knew no better, we pulled it off."

Shortly afterwards, in July 1994, the post-apartheid government appointed him as chairperson of the Commission of Inquiry into Unrest in Prisons.

Later in 1994, In the aftermath of the general election and pursuant to an interview with the Judicial Service Commission, President Nelson Mandela appointed Kriegler as a judge of the Constitutional Court of South Africa, which would be newly established under the Interim Constitution.

After the 1994 election, Kriegler was centrally involved in founding the permanent Electoral Commission of South Africa, which superseded the Independent Electoral Commission in 1996; he was appointed as its inaugural chairperson.

He was among the 11 judges sworn into the apex court's inaugural bench on 14 February 1995, and he served there until he retired from the judiciary on 29 November 2002, his 70th birthday.

During his tenure in the Constitutional Court, Kriegler wrote opinions in a total of 29 cases: 20 majority judgments (of which 15 were unanimous), five concurring opinions, and four dissenting opinions.

In a minority opinion in Fose v Minister of Safety and Security, Kriegler expressed the view that the Constitutional Court's role was to "attempt to synchronise the real world with the ideal construct of a constitutional world created in the image of [constitutional supremacy]", though he also argued extra-curially that it was not within any court's remit "to be seen or to aspire to being seen to be activist".

The Mail & Guardian regarded him ultimately as "a flamboyant maverick" comfortable with confronting the executive branch, pointing to his minority opinions in President v Hugo and Du Plessis v De Klerk as examples of his judicial "boldness".

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

President Nelson Mandela elevated him to the inaugural bench of the Constitutional Court upon the court's inception, and he served in the apex court until his retirement in November 2002.

Both before and after his retirement, he was active in international engagements on electoral disputes and judicial independence, notably as chairperson of Kenya's Kriegler Commission in 2008.

In addition, from 2008 to 2023, he was the founding chairperson of Freedom Under Law, a prominent non-profit organisation which aims to promote the rule of law in South Africa.