Justice Johan Froneman
“Kate O’Regan said to me when I got here, if this is the kind of work that you like, it’s the best job in the world. And I like that kind of work and it is the best job in the world.”
Justice Johan Froneman’s judicial career has spanned 26 years, of which 11 were spent at the Constitutional Court. Although he is soft spoken, Justice Froneman’s judgments ring loudly on behalf of those who have been marginalised.
Early Life and Career
Johan Froneman was born on 10 February 1956 in the Eastern Cape where he grew up on a farm near Cathcart.
I think I was quite influenced by my parents, and especially my mother. She’s not religious in the fundamental way, but religious values counted a lot to her and our family. So we were taught in the Christian religion to respect other people, but that also led to a difficulty because if you respect other people then you ask your parents, well, why are other people, black people, specifically, not treated the same way? And I suppose gradually, in that sense, the consciousness grew.
Froneman obtained a Bachelor’s degree at Stellenbosch University, before finishing an LLB degree at the University of South Africa. After that, he completed his pupillage at the Pretoria Bar, and practiced in Grahamstown (now Makhanda) for ten years before taking silk.
Froneman’s judicial career started when he was appointed to the High Court in 1994, a time of critical constitutional change. In 2011, he described being a judge at the dawn of constitutionalism as a “really wonderful time”, because of the opportunities that came from being one of the first cohorts of judges to engage with and interpret the Constitution.
(It was), I think, a once in a generation opportunity to become or be a judge right at the start of a new constitutional era, and it was even … Well I won’t say better, but more exciting because the Constitutional Court actually only got going in about 1995/1996, so that first year in 1994, was completely new ground for anybody, and many of the judges were conservative … It was a new thing, it was difficult, but if you were excited by it you could write judgments that were new, and that you believed in. It really was a wonderful time.
Froneman would then go on to serve at the Labour Appeal Court, and later undertook an acting stint at the Supreme Court of Appeal.
Appointment to the Constitutional Court
Froneman was appointed to the Constitutional Court by President Jacob Zuma in October 2009, and retired on 31 May 2020.
The nomination came as a surprise. I still don’t know how I got here and I’m not being overly modest about it, there’s lots of other people who also wonder about it. I put my name forward, in the papers that you gave, I referred to previous things that I’d published and so on, I didn’t try and hide that I was Afrikaans, that I wasn’t part of the struggle, that I’d come from the privileged divide of it, and I thought, well, that’s the way I’m going then. And then I got to the interviews and other than many of the other candidates I was treated, I suppose, with kid gloves and I think reading the things that I’d said before, perhaps changed people’s minds. It certainly did, I was told afterwards. So I got a good hearing. And how and why I was actually appointed, well, you know as well as I do.
Judgments of Interest
Gundwana v Steko Development CC and Others (2011)
Elsie Gundwana bought a house with money lent to her by a bank. In terms of the bond, the house served as security for the loan. Gundwana fell behind in her monthly loan payments. The banks approached the High Court and obtained a default judgment against Gundwana. This judgment led to the selling of Gundwana’s house to Steko Development CC.
Gundwana unsuccessfully appealed against the eviction order in both the Western Cape High Court as well as the Supreme Court of Appeal. She also approached the Western Cape High Court to set aside the default judgment.
The default judgment against Gundwana which led to her house being sold was granted by the Registrar of the High Court and not by a judge. This is permissible in terms of the Rules of the High Court. The question was whether the Rules of the High Court are constitutional insofar as they allow the Registrar of the High Court to grant an order declaring that someone’s home should be sold to fulfil a debt that they owe as in Gundwana’s case.
Justice Froneman wrote the majority judgment in which the Court declared the Rules of the High Court unconstitutional to the extent that it permits the sale in execution of the home of a person. This is a decision that has to be made by a judicial officer and not a Registrar.
An agreement to put one’s property at risk as security in a mortgage bond does not equate to a licence for the mortgagee to enforce execution in bad faith.
Daniels v Scribante and Another (2017)
Yolanda Daniels had lived with her children in a dwelling on a farm in Stellenbosch for 16 years. Her dwelling was protected by the Extension of Security of Tenure Act 62 of 1997 (ESTA), which protects historically marginalised farm dwellers from unlawful evictions, and secures their land tenure.
Daniels wished to make basic improvements on her home that would allow her to live comfortably and with dignity. She sent Theo Scribante, the manager of the farm, notification of her intention to make the improvements, but received no response. Scribante only responded when the builders arrived to work on Daniels’ dwelling, by refusing to grant permission.
Significantly, Justice Froneman wrote a concurring judgment in his native Afrikaans so that he could speak directly to the heart of the landowner in this case, and landowners all over South Africa. His judgment highlighted the brutality of the apartheid regime and land dispossession, and the importance of redressing these injustices. The Court made available an English translation of Justice Froneman’s judgment.
Dit is vanuit ’n soortgelyke perspektief dat ek genoop voel om hierdie instemmende uitspraak te skryf. Die Grondwet bied ons almal ’n geleentheid om ’n samelewing te probeer ontwikkel wat die onreg van ons verlede aanspreek sonder miskenning van die menswaardigheid, vryheid en gelyke behandeling van al die land se inwoners. Dit is ’n geleentheid wat ons nie mag versmaai nie. Maar die Grondwet vra ook van ons, voordat ons die geleentheid wat dit bied aangryp, dat die onreg van ons verlede erken word … Elkeen wat deur die pragtige landelike dele van ons land ry kan nie anders as om op te let dat die lewensomstandighede waarin werkers op plase bly nie altyd na wense is nie. Daar is min twyfel dat sake verbeter het, maar dit is ongelukkig nie deurlopend die geval nie. Waarom nie?
It is from a similar perspective that I feel compelled to write this assent. The Constitution provides all of us with an opportunity to try and develop a society that addresses the injustices of our past without disregarding the human dignity, freedom and equal treatment of all the country’s inhabitants. This is an opportunity we must not waste. But the Constitution also asks us, before we seize the opportunity it offers, for the injustice of our past to be recognised … Anyone who travels through our beautiful countryside cannot help but notice that the living conditions of workers who live on farms do not always meet a standard that accords with human dignity. There is little doubt that things have improved, but unfortunately not uniformly so. Why not?
Family and Personal Life
After his retirement, Froneman looks forward to spending his time in Makhanda, in the Eastern Cape with his family. He has said that in life he only really wanted to pursue two things: being in the legal profession or being a farmer. After an illustrious career in law, it may now be time for him to attend to his other calling.
In the Words of Others
Justice Froneman has an unmatched ability to work through cases not only at great speed, but with an astounding depth of understanding that most of us only acquire after several perusals of the papers. Each case is approached with an open mind and considered in a methodical and diligent way, by always going back to the ‘first principles’. However, this methodical approach does not exist in a vacuum. Everything is weighed and measured against the backdrop of both South Africa’s history and contemporary issues.
Most importantly, however, Justice Froneman always strives to achieve social justice. His commitment to driving social justice progress in South Africa has come at a price.
He has infused every aspect of our law with constitutional values – from his early judgments asserting the constitutional rights of arrested persons, through his pioneering judgment on class actions in 2000, and his insistence on accountability of the Eastern Cape department of social development and its officials in their treatment of vulnerable citizens. His legacy is one that will continue to shape our constitutional dialogue.
Justice Froneman recognised and embraced the Constitutional ethos of judicial decision making at the dawn of the Constitution while in the High Court. He was a judge at the forefront of a new legal era in South Africa and crafted new law and jurisprudence that will remain a bedrock of legal principles in the future. Witnessing his systemic approach and methodical breakdown of issues post-hearing was fascinating. I learned a lot about the importance of the integrity of Judges and their role in upholding the Constitution.
Justice Johan Froneman appreciated things to be precise, concise and straight to the point. As a person Justice Froneman is a true gentle giant who believes in a balanced approach to life. He used to remark at the end of a long day’s intellectual labour ‘all work no pay made Jack a sad boy’. As a judge he was principled and had a principled approach to matters the Constitutional Court was called upon to adjudicate.
He is a wonderful person, a fine lawyer and has been an important influence on that court.