Education & Academic Scholarship (and impact)

EDUCATION – SUMMARY OF QUALIFICATIONS OBTAINED PRIOR TO PhD (Leiden)
2012: MASTERS’ OF LAWS (LLM: Special Programme: Administrative & Constitutional Law), UCT
• LLM Degree awarded with Distinction and an 80% aggregate, Top overall result out of 103 LLM graduates.
• Prizes & scholarships awarded include, amongst others:
o The David & Elaine Potter Fellowship for academic excellence and dedication to uplifting civil society.
o The DAAD-NRF Scholarship for ‘Academic Excellence and for having the potential to have a “multiplicator effect” in society’. Lauren was the only law student to have been recognised out of approximately 150 scholarship holders from across the country (most of whom are drawn from the Sciences).
o The Law Endowment Scholarship, ‘Towards Sustainable Justice’.
• Distinctions & Top result for all courss:
o Governance Under the Constitution (81%).
o Administrative Justice (81%).
o Principles of Environmental Law (75%).
o Advanced Contract Law (85%).
o Dissertation: ‘The Burgeoning Constitutional Requirement of Rationality and the Separation of Powers: Has Rationality Review Gone too Far?’, awarded 80% – highest mark awarded across the board for that year’s LLM student cohort.
2005-2006: BACHELOR OF LAWS (LLB), UCT
• LLB Degree awarded MAGNA CUM LAUDE; Top Student.
• Prizes & scholarships awarded include, amongst others:
o LexisNexis Butterworths Prize, for ‘Best Intermediate Level student’ (1st in class overall).
o John Kotze Medal, for ‘best overall performance in Private Law & Roman Law’.
o Tom W Price Memorial Prize, for obtaining the highest overall marks in the Preliminary and Intermediate Level examinations in Private Law.
o Bar Council Moot Prize.
o Ben Beinart Memorial Prize.
o Numerous Class Medals for attaining ‘Top’ result in several Core Law Subjects.
2001-2004: BACHELOR OF BUSINESS SCIENCE (B.Bus.Sci), UCT
• B.Bus.Sci (in the special field of Law, and an additional focus on Economics).
• Degree awarded in the Special Field of Law, with Honours and with Distinction in Law.
• Prizes, scholarships & other noteworthy academic achievements include, amongst others:
o Class Medals, including for 3rd-year level, Public Sector Economics (ECO323S) (88%).
o Came in the Top 5 (out of ±450 students) for Advanced Macro and Micro Economics (ECO320F) (84%).
o Attained the Top result (out of ±450 students) for the significant 3rd Year Research Essay for ‘Advanced Macro and Micro Economics’ (ECO320F) (with 89%).
o UCT Entrance Merit Scholarships: 2001, 2002, 2003.
o Certificate for Outstanding Academic Achievement: Fuller Hall Residence, Academic Awards Dinner, 2002.
o Inducted into the Golden Key International Honour Society.
2000: MATRICULATED WITH SOUTH AFRICAN SENIOR CERTIFICATE, SA
• Matriculated with 7 Subject Distinctions / ‘A’s (subjects all ‘Higher Grade’), received numerous special awards and achieved ‘A’ Aggregate.
• One of only 14 scholars in the Western Cape Province, SA, to matriculate with 7 subject distinctions in the year 2000 and attained the highest number of subject Distinctions at Herschel Girls’ School.
• Received various special awards, honours and scholarships.
• School Prefect; Head of House; International Exchange Student; Head of School Interact Project ’99.
ACADEMIC PUBLICATIONS & HIGH-LEVEL IMPACT SUMMARIES
• Lauren Kohn ‘The burgeoning constitutional requirement of rationality & the separation of powers: Has rationality review gone too far?’ (2013) 130 South African Law Journal 810.
In Lauren’s Masters’ research she discerned and theorised a pattern in the expanding frontiers of administrative-law review to policy-laden executive decision making. Lauren recognised that, notwithstanding the laudable outcomes reached in certain judgments, the judicial ‘means’ posed a potential a threat to the separation of powers and the vital legitimacy of the judiciary within this institutional scheme. Her study was original, rigorous and ground-breaking. It has had a profound impact on jurisprudence, and litigation strategies, in the field(s).
In particular, Lauren’s article has been highly influential in the development, and judicial navigation, of this pathway to redress (‘legality-cum-rationality review’) in SA.
Her article been judicially endorsed by the Constitutional Court and High Courts of SA on several occasions. It was also utilised by the then ‘Democracy & Governance Unit’ (of the HSRC, now the ‘Developmental, Capable and Ethical State (DCES) Department), in conjunction with the University of Fort Hare, in the Partnership’s seminal work reflecting upon the impact of the Constitutional Court jurisprudence on human-rights realisation and democracy. See, for example http://www.hsrc.ac.za/en/review/hsrc-review-oct-dec-2018/eliminating-poverty-and- inequality.
Lauren was one of the selected contributors that provided expert focus-group input on several occasions for the HSRC on matters pertaining to the separation of powers, socio-economic rights and good governance. Lauren’s scholarship on rationality review continues to have an impact. A month before the birth of her 3rd child in April 2020, Lauren presented this piece as Keynote Speaker at the ‘Round Table Conference on Electoral Democracy in Africa’ at Stellenbosch University (5 March 2020).
Judicial endorsements include:
§ Member of the Executive Council for the Department of Cooperative Governance and Traditional Affairs Free State v Maluti-A-Phofung Local Municipality [2022] 3 All SA 403 (FB) (28 April 2022), at para 9, fn 11.
§ The unanimous Constitutional Court (CC), in Pretorius v Transport Pension Fund [2018] ZACC 10, at para 37.
§ The unanimous CC, in Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited 2019 (4) SA 331 (CC), at para 112, fn 110.
§ PSA obo Matshobba v HOD: Department of Health, Northern Cape [2017] ZALCCT 58, at para 9.
§ Booysen v Acting National Director of Public Prosecutions [2014] ZAKZDHC 1 (26 February 2014), at para 16:
‘[a] timely note of caution has been sounded in a recent article regarding the need for courts to respect the separation of powers and to be conscious of not intruding into the territory of either the executive or the legislature’.
§ MEC for the Department of Health WC v Weder Mangena [2014] ZALAC 98, at para 33.
• Lauren Kohn ‘The Anomaly that is Section 24G of NEMA: An Impediment to Sustainable Development’ (2012) 19 South African Journal of Environmental Law & Policy 1.
This article weaves together Lauren’s knowledge of administrative law, environmental law, good governance and competition law. It won the 2016 UCT Law Faculty’s Research Prize (1st place) as ‘the most outstanding article in a peer-reviewed journal’, with the anonymous reviewer commending it for drawing ‘extensively on environmental law, competition law and administrative law…dealing with a really important issue, well-argued and very well supported in terms of authorities; a very solid and useful scholarly piece’.
In the article, Lauren critiques the erstwhile formulation of section 24G of the National Environmental Management Act, 1998, and her proposals for reform have since (in part) been implemented. The legislature has finally made certain amendments to section 24G along the lines Lauren suggested. For example, the provision is no longer entitled: ‘[r]ectification of unlawful commencement or continuation of [a] listed activity’. In her article, Lauren explained the inherently anomalous idea of ‘rectifying the unlawful’, and the principled and practical concerns this raises. Section 24G is now headed simply, ‘[c]onsequences of unlawful commencement of activity’ (emphasis added).
Lauren’s article has become the ‘gold-standard on retrospective environmental authorisations in SA’ and is prescribed at several law schools across the country. It has been cited by leading academics in the field, including, for example, Jan Glazewski Environmental Law in South Africa (at para 10.3.2.4 Section 24: Environmental assessments and Authorisations).
• Lauren Kohn ‘Our curious administrative law love triangle: The complex interplay between the PAJA, the Constitution and the common law’ (2013) 28 SA Public Law 22.
This article has received over 1500 views on Academia.edu, been cited extensively, and according to the SABINET law journals database, it is now made available on the Department of Higher Education and Training (DHET) accreditation list.
Judicial endorsements include:
§ The Member of the Executive Council for the Department of Co-Operative Governance and Traditional Affairs: Free State 1 v The Maluti-A-Phofung Local Municipality 2022 JDR 1560 (FB) at fn 12.
§ Surrogacy Advisory Group v Minister of Health [2022] 4 All SA 187 (GP). Endorsed at para 36, ‘Kohn adds to that buck-passing and no-fettering rule as not included in the Act itself, but finding direct application through this…’.
• Lauren Kohn ‘Escaping the “Shifren shackle” through the application of public policy: An analysis of three recent cases shows Shifren is not so immutable after all’ (2014) 28(1) Speculum Juris 74.
This article traverses complex terrain at the intersection of the private law of contract and human rights, via the doctrinal device of public policy. It was nominated by the UCT Law Faculty (Director, Internationalisation) for the St Petersburg International Legal Forum Private Law Prize, 2018.
Judicial endorsement:
§ J v L [2019] ZAFSHC 225 (29 November 2019) at para 15, where Judge Opperman remarked:
‘The Bill of Rights is instructive that in every matter pertaining to a child, the best interests of a child are of paramount importance. Based on the public policy enquiry it is the yardstick to justify overcoming the strictures of the Shifren- principle. As Kohn put it: “In this article I have sought to illustrate how the recent efforts of our high courts reveal that although Shifren remains part of our law, it is no longer an insuperable obstacle to ensuring equity in contractual relations. The trilogy of cases I have discussed shows how recourse to the flexible and evolving doctrine of public policy – particularly through the second leg of the public policy test – can, through a nuanced and reflective analysis, ensure that Shifren is relaxed where the circumstances so demand and in a manner which strikes the right balance between the interests of the parties.”’ (Emphasis added).
• Lauren Kohn [lead author] & Hugh Corder ‘Judicial regulation of administrative action’ in the South African Monograph on Constitutional Law, Murray & Kirkby (eds) (2014) Suppl. 108 International Encyclopaedia of Laws (IEL), available at http://www.ielaws.com/.
This chapter, which Lauren lead-authored, is a carefully elucidated summary of the complex field of administrative law in SA. It has been viewed over 5000 times on Academia.Edu. This research platform reveals the contribution’s regular use by students, scholars, practitioners and government officials.
• Lauren Kohn ‘The Failure of an arranged marriage: The traditional leadership / democracy amalgamation made worse by the Draft Traditional Affairs Bill’ (2014) 29 SA Public Law 343.
This article flowed from a pro bono legal Opinion Lauren furnished to the Legal Resources Centre (LRC) and the Centre for Law & Society (CLS; now LARC http://www.larc.uct.ac.za/) in 2014. It has since fed into the Unit’s submissions to Parliament and litigation on communal land rights, rural women’s rights and traditional affairs as viewed through the constitutional lens. This has in turn led to victories for women’s rights and the constitutional separation of powers. See for example, https://static.pmg.org.za/160202larc.pdf at page 5, fn 11.
• Lauren Kohn ‘The Bashir judgment raises the red flag for the rule of law and the judiciary’ (2016) 133 South African Law Journal 246.
This contribution remains an important reminder of the importance of the rule of law, a core tenet of SA’s constitutional democracy that nonetheless remains under threat – consider, for example, former President Zuma’s flouting of it vis-à-vis the Judiciary and the Zondo Commission of Inquiry into State Capture. Lauren’s article received the following feedback from the editors of South Africa’s premier law journal, the South African Law Journal:
‘Both referees are impressed with the note. They are of the view that the relevance and scientific value of the piece are beyond doubt and that you have done an excellent job of making the court’s argument clearer and more explicit and of explaining its significance. The discussion in the note also follows a logical structure and has a clear focus, and your methodology, assumptions and arguments are scientifically and logically justifiable. One of the referees (who is, I might add, a prominent international scholar) stated that your note “is in the best tradition of the SALJ in the 60s and 70s, eg Dugard and Matthews & Albino, in speaking truth to power”.’ (See, on request, email of 17 August 2015, emphasis added).
The piece has also been cited in Political Science scholarship. See for example, Paul S. Masumbe ‘The Travails of Prosecuting Serving Heads of State before the ICC: The Case of Omar Al Bashir and Vladimir Putin’ (2023) 4 E-Journal of Humanities, Arts and Social Sciences (EHASS), at fn 38.
§ Lauren Kohn ‘The Test for ‘Exceptional Circumstances’ where an Order of Substitution is sought: An Analysis of the Constitutional Court judgment in Trencon against the backdrop of the Separation of Powers’ (2015) 7 Constitutional Court Review 91.
Judicial endorsements include:
§ Kalisa v Chairperson of the Refugee Appeal Board (17413/2017) [2018] ZAWCHC 156, per by Binns-Ward J, at fn 16: ‘I agree with the opinion expressed by Kohn in her paper (cited in para. [21] above) that the identification of this factor as a point of departure is consistent with the view expressed by Plasket J in Intertrade Two’;
and at fn 20:
‘Kohn op. cit. has postulated that “…in seeking to accommodate the separation-of-powers concerns within the test, Khampepe J has arguably made it harder for litigants to meet the case for substitution in certain instances, namely where the separation-of-powers requirements cannot be met but the facts, which evidence for example glaring incompetence or bias, nonetheless cry out for substitution”’.
• Lauren Kohn ‘Ramuhovhi v President of the Republic of South Africa: A bittersweet victory for women in ‘old’ polygamous customary marriages’ (2017) 33 South African Journal on Human Rights 120.
Lauren’s research at the intersection of women’s rights, customary, and constitutional law, was presented at the ‘Elimination of Violence against Women Conference’, Aberystywth University, Mauritius Branch Campus on 25 November 2016. Subsequent to the publication of Lauren’s Article, there has finally been a victory for women’s rights in traditional customary marriages in SA with the promulgation of the Recognition of Customary Marriages Amendment Act 1 of 2021.
Citations include, Thandabantu Nhalpo ‘Customary law in practice in South Africa: Constitutional confrontations in culture, gender and ‘living law’ (2017) 33 South African Journal on Human Rights 1.
• Lauren Kohn & Raisa Cachalia ‘Restitutionary Measures properly understood & the extension of the Quota Ban – Locating SARIPA in the s 9(2) Van Heerden Framework’ (2017) Acta Juridica 146.
Lauren was awarded the 2019 Law Faculty Research Prize (Runner-Up) for her work as lead author on this piece on the proper test for, and use of, restitutionary measures in SA.
• Lauren Kohn ‘Using Administrative Law to Secure Informal Livelihoods: Lessons from South Africa’ (2017) 10 WIEGO Technical Legal Brief 1.
This contribution has not only been utilised by WIEGO but has been harnessed more widely in the public- and NGO-sectors as a practical tool for guidance at the intersection of informal trade and administrative justice. See, for example: Michael Clark et al ‘Informal Trade in South Africa: Legislation, Case Law and Recommendations for Local Government’ (2018) Research Report to Local Government developed by the Socio-Economic Rights Institute of South Africa (SERI) in partnership with the South African Local Government Association (SAGLA).
• Lauren Kohn ‘Commentary on section 66: National Instructions & Directives’ in chapter 26 of Smythe & Pithey (eds) Sexual Offences Commentary RS02 (updated 2019) Juta.
Lauren has become a regular contributor to this Commentary, given her research at the intersection of administrative law and criminal justice, and her particular interest in the role and functioning of the NPA.
• Lauren Kohn ‘Time to go back to first principles: the constitutionality of the 2017 Procurement Regulations’ in Sope-Elegbe & Quinot (eds) Public Procurement Regulation in Africa: Development in Uncertain Times 2ed (2019) Juta.
and
• Lauren Kohn ‘Time to go back to first principles: A critical analysis of the 2017 Procurement Regulations reveals them to be short of the legality-cum-rationality mark’ (2019) African Public Procurement Law Journal 1.
Lauren first presented her critique of the 2017 Procurement Regulations at the ‘3rd International Conference on Public Procurement Law in Africa’ on 1 November 2018 (organised by Profs Quinot & Williams-Elegbe). Flowing from this academic engagement, she published the above two related, but distinguishable, scholarly contributions. The arguments and proposals Lauren set out in them have fed directly into public procurement law reform in SA.
The article was awarded the 2020, UCT Law Faculty Research Award (Winner) as, ‘the most outstanding contribution’ to legal research and law reform (below professorial level), with the anonymous judge(/s) commending her research as: ‘highlyly original, compelling in its legal reasoning; and the Supreme Court of Appeal (SCA) [Afribusiness NPC v Minister of Finance [2020] ZASCA 140 (2 November 2020)]and policy makers in the field of procurement law have recently reached conclusions consistent with submissions made in the article’.
Since the article’s publication, there have been several noteworthy law-reform developments adopting Lauren’s original theorisations and suggestions for law and policy revisions.
These endorsements include:
§ Judicial confirmation by the SCA, and as endorsed by the CC, in Minister of Finance v Afribusiness NPC 2022 (4) SA 362 (CC), that the 2017 Procurement Regulations were indeed unlawful and irrational on the bases Lauren propounded.
§ The adoption of several of Lauren’s proposals in the new Public Procurement Act, assented to on 18 July 2024:
o It makes provision for an independent Procurement Office – which would likely fall under Lauren’s unifying theory for SA’s I&A Fourth Branch – to deepen integrity, transparency, professionalism and accountability in public procurement.
o The new Act also provides for specialised judicial review, in the nature of that under SA’s competition- and environmental-law regimes. It establishes a specialised Procurement Tribunal, in alignment with Lauren’s 2019 proposal to make, ‘[p]rovision for a fast-track court process to challenge tender awards via a specialised court structure’ to expedite tender dispute resolution, alleviate pressure on the judiciary and ensure the requisite expertise, operational efficiency and independence of the specialised institutional structure.
§ In Lauren’s first doctoral article, she argues (among others) for a specialised Anti-Corruption Redress System (AnCR, or simply ‘Redress System’). The model she proposes in this piece builds on her forementioned scholarly work and chimes with the recommendations of the Zondo Report.
o The new Act’s ‘Dispute Resolution’ Chapter now provides for a dedicated Public Procurement Tribunal – a welcome endorsement of Lauren’s suggestions which should assist in deepening integrity, accountability, professionalism and the rule of law.
• Lauren Kohn [lead-author] & Hugh Corder ‘Administrative Justice in South Africa: An overview of our curious hybrid’, chapter 7 in Corder & Mavedzenge Pursuing Good Governance: Administrative Justice in Common Law Africa (2019) Siberink, (available at: https://www.kas.de/en/web/rspssa/single-title/-/content/pursuing-good-governance-administrative-justice-in-common-law-africa#)
This work is up-to-date, open access ‘overview analysis’ of good governance and administrative justice across Africa. Kohn & Corder’s chapter is utilised by legal students and practitioners alike. It presents a carefully elucidated analysis of the complex proliferation of ‘pathways to (administrative-law) review’ in SA, and relatedly, the proliferation of new public-law review grounds.
• Lauren Kohn & Raisa Cachalia ‘The quest for “reasonable certainty”: Refining the justice and equity remedial framework in public procurement cases’ (2020) 137 South African Law Journal 559.
This piece had its genesis as a Legal Opinion provided to a disappointed contractor left at the whim of a recalcitrant state enterprise. The article has since been harnessed by practitioners seeking to vindicate the rights of those who contract with the state in good faith, to obtain legal redress that balances the need for legality, as well as legal certainty, in a state committed to the rule of law.
Noteworthy endorsements include:
§ The article was quoted ‘Live’ during the Constitutional Court hearing in Merifon (Pty) Limited v Greater Letaba Municipality and Another CCT159/21 01 March 2022, view online (via the Constitutional Court’s Youtube channel: https://www.youtube.com/watch?v=asBqk3kKSQA).
§ Red Ant Security Relocation & Eviction Services (Pty) Ltd v Department of Human Settlements (Western Cape) (In the High Court of South Africa, Western Cape Division) Case No. 9730/2021; judgment delivered 8 August 2022; see quote in opening para 1 per Binns-Ward J.
§ The article was quoted recently by the Supreme Court of Appeal (SCA) in Tyte Security Services CC v Western Cape Provincial Government and Others (Case no 479/2024) [2024] ZASCA 88 (7 June 2024), at para 1 (fn2): ‘with a reference to Cachalia and Kohn that: ‘[t]endering has become a verifiably “messy business” and the courts are increasingly drawn into the quagmire in review proceedings. . .’.
• Lauren Kohn & Ymre Schuurmans ‘The design and performance of internally and externally orientated administrative law – the Dutch versus South African Models’. (International work-in-progress; for submission to an international journal of choice.).
In this collaborative (work-in-progress) research study, Prof Schuurmans and Lauren assess the performance of Dutch ‘internally-orientated administrative law’, versus the ‘externally-orientated South African’ model. Professor Schuurmans and Lauren presented their comparative analysis (based on certain ‘indicators’ or standards identified in the research) at the ICON*S Mundo, 2021 Conference on 9 July 2021.
• Lauren Kohn ‘Commentary on section 66: National Instructions & Directives’ in chapter 26 of Smythe & Pithey (eds) Sexual Offences Commentary (updated 2022) Juta.
Lauren’s cutting-edge research at the intersection of criminal justice and administrative law has made her an academic change-maker in these niche, intersecting legal fields. For example, as early as 2016, she recognised (and theorised) the role of the National Prosecuting Authority (NPA) as a ‘hybrid’ institution of state that straddles the realms of the ‘executive’ and ‘the administration of justice’ under the Constitution. (See, L Kohn ‘Mbeki Guilty of Misinterpreting the Law’ Mail & Guardian (17 February 2016), available at https://mg.co.za/article/2016-02-17-mbekis-defence-of-npa-decision-wont-wash/).This approach shatters the outdated (incorrect) orthodoxy that the NPA is a mere executive adjunct.
Lauren’s arguments for this (proper) appreciation of the role and place of the NPA in SA’s system of governance has since gained traction, with other academics now also referring to such ‘hybrid bodies’ (see for example, the work of Charles M Fombad).
Lauren’s understanding, and insightful theorisations on, the role of the NPA, and relatedly, prosecutorial policy – have been foundational in her ensuing doctoral work which, considers the NPA as part of what she terms the ‘Integrity & Accountability’ (I&A) Fourth Branch of State in SA.
• Lauren Kohn ‘Teaching transparency through the lens of Administrative Justice in South Africa’ (2022) 11 International Journal of Open Governments/ Revue Internationale des Gouvernements Ouverts.
Much of Lauren’s scholarship gives attention to the relatively under-theorised, constitutional values of ‘accountability, responsiveness and openness’ (ARO). These ARO values are essential in deepening the rule of law and ensuring the proper functioning of all (four) branches of state within the separation of powers. And, without transparency there can be no accountability. For Lauren, openness and responsiveness are thus necessary, if not sufficient, ingredients for ensuring integral and accountable governance. In this open access contribution, Lauren illustrates how transparency tenets find life in the application, and development, of administrative law – both via its substantive review grounds and procedural tools.
• Lauren Kohn ‘Private sporting bodies & the “supervisory disciplines of public law” – Ndoro v South African Football Association as an apt case study for line-drawing within a four-quadrant typology’ (2022) 38 SAJHR 112.
The ‘public/private’ interface is a complex area of law that has tended to defy meaningful simplification and explanation. Yet the questions of when, and why, public-law prescripts should be applied to prima facie private orderings are important. After all, ‘proportionality’ and ‘accountability’ are ‘constitutional watchwords’ that permeate SA’s constitutional order. This is an underpinning theme of all of Lauren’s scholarship.
In this particular contribution, Lauren analyses a noteworthy judgment penned by Unterhalter J (the Ndoro case) on the public-law treatment of an ostensibly private contract. In analysing, and better situating the Ndoro case, she crafts a 4-quadrant typology ‘to enable scholars, lawyers and judges to frame – and thereby better situate – the specific public/private issue in its relevant context to ascertain whether the matter is public in nature and more particularly, whether it amounts to administrative action subject to PAJA-review.’
In January 2024, Lauren presented this typology as a speaker on the Opening Panel at the Administrative Justice Association of South Africa’s 2024 Conference, which marked 30 years since the ‘Breakwater Declaration’ was signed in SA.
• Lauren Kohn ‘Re-thinking the “pillar paradigm” for sustainable development: the case of Bo-Kaap reveals the shift to simple proportionality’ StellLR 33(4) (2022) 703.
In February 2022, Lauren represented the Academy as an Invited Speaker at the Department of Justice & Constitutional Development’s Symposium marking 25 years of democracy. At this symposium, she presented her research on the role of the courts in realising the promise of socio-economic rights while ensuring institutional comity vis-à-vis the other branches of state, given the importance of the separation of powers. Lauren utilised the 2020 Supreme Court of Appeal judgment of Bo-Kaap Civic and Ratepayers Association v City of Cape Town as a case-study to illustrate these tensions and how the courts should best navigate them. Her original analysis flows from research she undertook in the fields of environmental law and administrative justice in 2021.
• Lauren Kohn ‘The National Prosecuting Authority as Part of South Africa’s Integrity & Accountability Branch and the Related Case for an Anti-Corruption Redress System’ (2022) 12 Constitutional Court Review 1. (https://journals.co.za/doi/pdf/10.2989/CCR.2022.0001).
For this article Lauren was awarded her fifth (5) record-breaking Faculty of Law Research Prize (Winner), for its outstanding contribution to knowledge and legal development, with its innovative proposals for state-capture redress. Lauren has now been recognised for having been awarded the most Law Faculty Research Prizes in the Faculty’s history.
This Opening Lead Essay in CCR XII is the culmination of years of research, analysis, and practical legal problem-solving in the intersecting fields of constitutional, administrative, procurement, anti-corruption and criminal-justice law. Lauren began thinking about ‘fourth-branch-of-state arguments’ as early as in 2011, but at that stage the matter was not yet ripe for meaningful scholarly study.
Since the rise of state capture, corruption and maladministration in SA, the country has urgently needed social / scholarly reform efforts for the derivation – and implementation – of doctrinally-sound, but innovative (socio)legal solutions to the multifarious problems caused by these scourges.
This article is the first one in Lauren’s trilogy of PhD Publications. It provides a workable, and constitutionally- congruent, plan for state-capture redress. The article is based, in part, on legal advice that she provided to an NPO in 2021 to find a solution to the (then) seemingly intractable problem of garnering momentum for the disgorgement of illicit state-capture gains, pending legislative reform. Lauren’s proposals in this doctoral article have proven ground-breaking for the country, with many of her suggestions taking shape through various (state and corporate sector) measures to expedite stat-capture redress.
In short, the article:
§ makes arguments for the recognition of an ‘Integrity & Accountability’ (I&A) Fourth Branch of State in SA,
§ explains the distinctive role of the ‘I&A bodies’ within the country’s institutional separation of powers, and propounds the legal basis for their proper recognition and grouping as such; which, until Lauren’s proposals, had not yet been properly explored in the academic literature (which has mostly treated the Chapter 9 institutions as a closed-list of I&A bodies),
§ explores the role of the NPA, and prosecutorial policy, under the rubric of public I&A, and
§ leverages this doctrinal analysis to make the case for the use of pre-trial diversion, recast as ‘anti-corruption redress [AnCR] agreements’, or simply ‘redress agreements’.
Further:
§ In making these arguments and proposals, Lauren draws inspiration from the judicial innovation of former Constitutional Court Justice, Johan Froneman. In the social-grants procurement cases of AllPay, he developed the so-called ‘no-profit-no-loss principle’. Recognising the untapped potential of this principle in the context of state-capture disgorgement efforts, Lauren argues that while in the absence of the requisite legislation, offenders cannot be penalised for their ill-gotten gains, they equally have no right to benefit from them.
§ In this vein, non-trial ‘redress agreements’ can, by way of prosecutorial policy directives, be concluded expeditiously to incentivize corrupt corporate offenders to pay back their illegal profits to start replenishing the public purse. Indeed, Lauren’s proposals are now being utilised (broadly, along the lines she suggested) ‘redress agreements’ already being concluded with offenders.
In 2023, Lauren published an opinion-editorial summarising core aspects of this article in The Conversation (https://theconversation.com/state-capture-in-south-africa-time-to-think-differently-about-redress-and-recovering-the-stolen-loot-199219). As at 27 March 2023, this piece had over 27 300 reads – making it one of the most-read pieces of the past year.
Pursuant to Lauren’s legal opinion (2021), and the publication of her ensuing article, which was cited in parliamentary submissions, the following noteworthy developments have followed:
§ Significantly, on 6 February 2024, the NPA announced the adoption of a new policy directive that incentivizes (corporate) offenders to return the stolen profits to the fiscus, self-clean, and cooperate with the NPA. See https://www.dailymaverick.co.za/opinionista/2024-02-06-npa-gets-new-weapon-that-brings-companies-on-board-in-fight-against-corruption/, and https://mg.co.za/thought-leader/opinion/2024-02-24-state-capture-clawbacks-inspire-hope/.
§ In November 2023, new Regulations were made under the NPA Act to enhance integrity and accountability within the prosecuting authority. They establish an ‘office for ethics and accountability’ to ‘develop, promote and maintain an inherent culture of ethics, integrity, accountability, compliance and good governance in the prosecuting authority.’ Additional tools include an ‘integrity scorecard’ for the annual assessment of the prosecuting authority, and it is an offence for someone to ‘improperly interfere with, hinder or obstruct the Office or any member thereof in the exercise, carrying out or performance of his or her duties and functions’. This development signals clear recognition of the importance of the independent and proper functioning of the prosecuting authority, as an I&A fourth branch institution of the SA state.
§ On 24 May 2024, President Cyril Ramaphosa signed off on the National Prosecuting Authority Amendment Act, 2024, which brings the Investigating Directorate Against Corruption (IDAC) into being as a permanent statutory body under the National Prosecuting Authority Act, 1998. The IDAC’s mandate includes the investigation and prosecution of, among others, high-profile or complex corruption cases. The President signed this Act into force with the view to, making the IDAC, ‘a permanent, prosecution-led agency with full criminal investigative powers … to overcome challenges with capacity and expertise within the NPA’. (See https://mg.co.za/thought-leader/opinion/2024-06-12-embracing-the-idac-a-critical-step-in-south-africas-fight-against-corruption/).
• Lauren Kohn Administrative Law 101 – a Pocket-book Series.
This (work-in-progress) book project flows from Lauren’s mission to make administrative law more accessible to various state/societal sectors – students, practitioners, NGOs, government, and so on. The idea is to develop a compendium of how these principles play out specific sectors; such as informal trade, public procurement, education etc. [See signed publication agreement with LexisNexis, if required].
• Lauren Kohn ‘Accounting for Accountability’ in G. Tieghi (ed) Comparative Law and Global English for Legal Studies (Jovene, Napoli, 2024), available open-access at https://www.jovene.it/public/allegati/156_Tieghi-ed.2024.pdf.
Lauren’s Chapter in this international Book Project provides an overview of how accountability is actualised in SA. In particular, she summarises four key South African legal innovations that enhance public integrity and accountability. These include: the administrative-justice and open-governance legislative regimes, the proliferation of new public-law causes of action to actualise accountability, and the rise of the ‘Integrity and Accountability Fourth Branch of State’.
• Lauren Kohn ‘Time to Reduce Judicial Adventurism – Reflections on Glenister II and Sonke Gender Justice through the Lens of the Separation of Powers’, Chapter 8, in Charles M Fombad and Nico Steytler (eds) Constitutional Change in Africa (OUP, 2024).
This article is the second publication in Lauren’s PhD trilogy. It received very positive feedback from the anonymous reviewers and editors. Its purpose and remit are well summarised by one of the anonymous reviewers:
‘It seeks to make some important points about the judicial role in securing some of the immanent aspects of the SA Constitution but expresses reservations about the outcome of two appeals to the Constitutional Court (Glenister II and Sonke, a decade apart) which in the view of the author reach laudable conclusions through the majority judgment in each case, BUT which do so through suspect reasoning and a degree of excess of judicial authority under the separation of powers.
S/he makes the point that such “adventurism” can be turned against the values of the Constitution through a change in the personnel of the highest court, or even through a shift in approach among the existing corps of judges, and that this is a danger which ought not to be tolerated. The author then proposes two amendments to the Constitutional text to ensure that the advances of the cause of integrity and accountability which the two judgments make, are properly secured. This discussion takes place within broader arguments for the recognition of a fourth branch of government under the separation of powers, the integrity branch’.
The author’s message is an important one and needs to be seriously considered by all constitutionalists. The text demonstrates very good familiarity with available literature and resources, both locally and internationally. The case is generally very well argued, and it was a pleasure to read it. I learned much.’ (See email with attached anonymous feedback, if required).
In this forthcoming piece, Lauren pioneers a legal argument for two important constitutional amendments: one explicitly to recognise the principle of the separation of powers with its fourth, ‘Integrity & Accountability Branch’, and the other, an amendment of the right to human dignity to guarantee, among others, a South Africa free from state capture and corruption.
• Lauren Kohn ‘Integrity & Accountability Commissions of Inquiry: A South African Perspective’ Utrecht Law Review (forthcoming).
Lauren presented this third PhD article on the panel, ‘Restorative & Transitional Justice’ at the ‘Institutions for Conflict Resolution (COI) Conference, 2023: Towards just institutional approaches to conflict prevention and resolution’ on 28 September 2023. (See https://www.uu.nl/en/research/empirical-research-into-institutions-for-conflict-resolution-eri/coi-conference-2023/programme/panel-rounds).
And see, Lauren Kohn ‘Comment: commissions of inquiry as part of a ‘just institutional approach’ in pursuit of integrity and accountability – A South African perspective’, http://institutionsforconflictresolution.net/NEWS-COMMENTS/COMMENT-Commissions-of-Inquiry-as-part-of-a-Just-Institutional-Approach-in-pursuit-of-Integrity-and-Accountability-A-South-African-Perspective/#wbb1
In short, the article:
§ Makes an original argument for the recognition of certain commissions of inquiry – such as the so-called ‘Zondo Commission of Inquiry’ into state capture in South Africa – as part of the country’s fourth (I&A) branch of state.
§ Theorises that, based on certain factors, such ‘I&A commissions’ should be accorded the respect they deserve and, as such, their recommendations must carry ‘appropriate’ legal weight, based upon a number of ‘factors’ (or criteria) enumerated.
§ Additionally, makes a case for the establishment of a permanent anti-corruption commission to be housed in Chapter 9 of the Constitution of the Republic of South Africa 1996 and explores the comparative recent Australian intervention to this end.
Significantly, since the presentation of Lauren’s forementioned proposals, progress is slowly underway.
§ See recent amendments to the National Prosecuting Authority Act, 1998, which make provision the IDAC, which can pursue cases ‘arising from the recommendations of commissions of inquiry’ – a clear indication of the adoption of Lauren’s view that these recommendations should, in appropriate cases, be actioned.
§ Further, on 19 April 2024, Democratic Alliance (DA) MP, Glynnis Breytenbach, announced her intention to introduce a Private Member’s Bill: the Constitution 21st Amendment Bill, which proposes the establishment of a permanent anti-corruption commission (ACC) in chapter 9 of the Constitution.
§ Lauren (and Professor Theunis Roux) have provided constructive feedback on the Bill (see, https://mg.co.za/thought-leader/opinion/2024-08-25-proposed-anti-corruption-commission-needs-a-rethink/)