This contribution on Lauren dubbed, the ‘burgeoning of rationality review’, with its implications for the judicial role within the separation of powers, was Lauren’s first academic public and it proved to be ground-breaking and continues to be referred to and cited.

Where earlier scholarship focused primarily on the separation-of-powers implications of the courts’ socio-economic rights jurisprudence, Lauren discerned and theorised the implications of a different pattern; namely that of the expanding frontiers of administrative-law review to policy-laden decision-making in a manner that (potentially) poses a threat to the separation of powers and, in turn, the legitimacy and integrity of the vital judiciary.

This study was rigorous, original and persuasive to this day feeds into jurisprudence, scholarship and practical litigation strategies. The article flowed from Lauren’s LLM Dissertation (of the same title) and fast gained judicial, and academic, traction. It has been endorsed by South Africa’s apex Constitutional Court, as well as the High Courts, on numerous occasions and has been cited locally and internationally by highly regarded legal scholars.

This article 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 work on 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 selected as an expert, focus-group member to provide technical input (pro bono) for this significant project, and gave input on a variety of legal matters including, the evolution of the separation of powers doctrine in SA, social-economic-rights jurisprudence, and the tenets good governance.

Judicial citations 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.
• A unanimous Constitutional Court (CC) in Pretorius v Transport Pension Fund [2018] ZACC 10, at para
• The unanimous CC in Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited 2019 (4) SA 331 (CC), at para 112, fn
• PSA obo Matshobba v HOD: Department of Health, Northern Cape [2017] ZALCCT 58, at para
• 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.

This piece critiques the erstwhile formulation of section 24G of the National Environmental Management Act, 1998 (NEMA). Lauren’s proposals for reform have proven to be impactful in guiding law reform efforts in the environmental-law space in SA and beyond. In particular, her research on the controversial issue of ‘retrospective authorisations’ at the administrative-/environmental-law intersection fed into law-reform efforts with ensuing amendments to the controversial 24G provision. For example, section 24G is no longer entitled: ‘[r]ectification of unlawful commencement or continuation of [a] listed activity’ – for, as Lauren argued in 2012, the notion of ‘rectifying the unlawful’ is inherently, and practically, anomalous. The provision is now simply headed, ‘[c]onsequences of unlawful commencement of activity’.

This article was awarded the 2016 UCT Law Faculty’s Research Prize (Winner) for being ‘the most outstanding article in a peer-reviewed journal’. The anonymous judges commented on: its breadth and insight in 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’.

It is prescribed in Environmental Law curricula across SA and has been widely cited locally and abroad.

Already in 2021 this article by Lauren had received over 1500 views on Academia.edu and been downloaded so frequently that according to the SABINET law journals database, it is now available on the Department of Higher Education and Training (DHET) accreditation list.

Judicial citations 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), 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 s…’ (emphasis added).

Lauren’s legal scholarship on the practical complexities at the public/private interface has been cited by academics and the courts. This examines how several High Court judgments read human-rights requirements into the contractual doctrinal device of ‘public policy’ to ensure good-faith contractual outcomes.

Judicial endorsements include:

• JZ v LL 2019 JDR 2439, 29 November 2019, where Opperman J remarked, at para 15:

‘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).

This article was nominated by the erstwhile UCT Law Faculty Director, Internationalisation Prof Amien for the St Petersburg International Legal Forum Private Law Prize, 2018.

This seminal and accessible summary of South Africa’s system of administrative law had, in 2021, been viewed over 5000 times on Academia.Edu. It is regularly used as the ‘go-to overview piece’ by the likes of law students, scholars, practitioners and government officials.

Available at http://www.ielaws.com/

This article flowed from a pro bono legal opinion that Lauren drafted for the Legal Resources Centre (LRC) and the Centre for Law & Society (CLS; now LARC, http://www.larc.uct.ac.za) ) in 2014. Its problematisation of aspects of traditional leadership structures in light of the tenets of our constitutional scheme, and Lauren’s proposals for reform, since fed into parliamentary submissions and litigation on communal land rights, rural women’s rights and traditional affairs. We have since seen welcome victories for women’s rights and the separation of powers to this end. See for example, https://static.pmg.org.za/160202larc.pdf at page 5, fn11.

This contribution remains an important reminder of the rule of law as a founding value of SA’s constitutional democracy, albeit one that nonetheless remains under threat. The piece received the following feedback from the editors of 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 email of 17 August 2015 on request, emphasis added).

The article has also had resonance 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’s research on judicial remedies and, in particular, the courts’ wide discretion to grant ‘just and equitable relief’, while balancing the need to vindicate legality and legal certainty, while remaining mindful of the judicial dual role – as ‘umpire and player’ with the state’s separation of powers – has been particularly influential.

Judicial citations include:

• Kalisa v Chairperson of the Refugee Appeal Board (17413/2017) [2018] ZAWCHC 156, per 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

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”’. (Emphasis added).

Lauren’s research on reconciling women’s rights and other constitutional l-aw prescripts with certain customary legal traditions was presented at the ‘Elimination of Violence against Women Conference’, Aberystwyth University, Mauritius Branch Campus on 25 November 2016. Since the publication of this article, there has finally been a victory for women’s rights in traditional customary marriages with the promulgation of the Recognition of Customary Marriages Amendment Act, 2021.

Lauren’s article has been cited by scholars and practitioners, such as Thandabantu Nhalpo in, ‘Customary law in practice in South Africa: Constitutional confrontations in culture, gender and ‘living law’ (2017) 33 South African Journal on Human Rights 1.

In this Festschrift of Acta Juridica in honour of Dikgang Moseneke, this article unpacks the test for so-called ‘affirmative action measures’ through a re-visiting of the original test for these measures’ constitutionality, as formulated by Justice Moseneke in Van Heerden and it cautions courts, scholars and practitioners alike against misconstruing the sound first principles laid by the Justice.

The article was awarded the 2019, Law Faculty Research Prize (runner-up).

This contribution has been utilised not only by Women in the Informal Employment Globalising and Organising (WIEGO but has also the public-interest and NGO-sectors more broadly. It has proven to be a valuable and accessible ‘go-to overview of administrative justice’ in revealing this legal discipline’s practicality in the daily lives of people.  

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 was asked to contribute to this Commentary given the breadth of her legal expertise and body of research and deals with, for example, with the complexities that arise when administrative- and criminal-justice matters intersect.

For example, policing is ‘administrative action’ as defined, and yet there is very little scholarship that connects these legal disciplines properly and in a user-friendly way. Lauren’s work in this field has also influenced developments pertaining to the role, recognition, functioning – independence and accountability – of the National Prosecuting Authority (NPA) in SA.

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 presented her novel critique of the 2017 Public Procurement Regulations at the ‘3rd International Conference on Public Procurement Law in Africa’ on 1 November 2018, whereafter she published her novel critique and proposals in this open-access, peer-reviewed legal journal that focuses on public procurement – a major site of ‘state capture’ in SA.

• Lauren’s article was awarded the UCT Law Faculty Research Award (Winner) as:

‘the most outstanding contribution’ to legal research and law reform and was commended by the anonymous judge(/s) as, ‘highly 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’.

And since the article’s publication, there have been various noteworthy developments that build on and/or endorse Lauren’s proposals.

These 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 explained in Lauren’s article.
• The new Public Procurement Act 28 of 2024, assented to by President Ramaphosa in July 2024, introduces, among others, the following:
  • Provision for an independent Procurement Office – which would likely fall under the I&A fourth branch of state on the basis of Lauren’s unifying theory for these ‘I&A’ bodies – to deepen integrity, transparency, professionalism and accountability.
  • A specialised judicial review process – akin to that under SA’s competition- and environmental-law regimes – through the establishment of a specialised Procurement Tribunal. This development accords with Lauren’s 2019 proposal that there be, ‘[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 such a specialised tribunal or court structure.
  • Additionally, the new ‘Dispute Resolution’ Chapter in the 2024 Act, which provides for a dedicated Public Procurement Tribunal, echoes suggestions made in my Lauren’s more recent article, which makes a compelling case for a specialised ‘Anti-Corruption Redress System’ (AnCR’, or simply, ‘Redress’ System), with the model Lauren proposed in building on her work in the above APLU This development also chimes with the recommendations of the Zondo Report and will hopefully go some way in deepening integrity, accountability, professionalism and the rule of law in the procurement space.

This work is a timely, open-access contribution that was supported by the Konrad Adenauer Stiftung (KAS) and pertains to good, open governance and administrative justice across common-law Africa, see: https://www.kas.de/en/web/rspssa/single-title/-/content/pursuing-good-governance-administrative-justice-in-common-law-africa#.

The chapter presents a high-level, but incisive analysis of the proliferating pathways to public-law review in SA, and the related development of numerous substantive review grounds. It reveals how public law is simply everywhere, sometimes doing too much, too much of the time. This piece’s ‘overview analysis’ of the complex and fast-evolving discipline of administrative law is now well-utilised by law students, civil servants and legal practitioners.

This article had its genesis as a legal opinion provided to a disappointed contractor left at the whim of a recalcitrant state enterprise. The published piece has since been harnessed by legal practitioners seeking to vindicate the rights of parties who contract with the state in good faith and whose contracts are then subsequently set aside – often due to state failings and the outcomes of so-called ‘state self-reviews’. The article theorises a sensible way in which to ensure redress for such aggrieved tenderers, while at the same time balancing the need for legality and certainty, in a state committed to the rule of law. It explains the ‘test’ for a just and equitable remedy through the novel lens of ‘impact’ and theorises various factors that determine the impact of a remedy for various affected parties.

Judicial citations include:

• This article’s calibration of factors for judicial consideration in determining the reasonableness, or otherwise, of a delay in state self-reviews has become seminal in the emerging body of ‘state self-review caselaw’ with the courts – presumably due to reliance on this article by Counsel – adopting, almost by rote, the piece’s organisation of the various factors through the ‘lens of impact’.
  • See, for example, the judgment of Transnet SOC Ltd v Tipp-Con (Pty) Ltd [2024] ZASCA 12 (31 January 2024 from paras 40-54, and especially at para 47, where the SCA adopted the proposed three-pronged classification for ‘prejudice’:

‘[t]here are three categories of affected parties when assessing prejudice: the state organ, the successful bidder, and the public.’

• The article was also 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, per Binns-Ward J, see quote at para 1.
• 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: ‘Tendering has become a verifiably “messy business” and the courts are increasingly drawn into the quagmire in review proceedings’.(Emphasis added).

In this collaborative comparative-law project, which commenced in 2021, leading Dutch administrative-law scholar, Prof Schuurmans and Kohn, assess the performance of Dutch (‘internally-orientated’) administrative law with that of the (‘externally-orientated’) SA model, based on various ‘indicators’, respectively. They presented their comparative analyses at the ICON-S Mundo, 2021 Conference, on 9 July 2021 (via Zoom).

Lauren’s cutting-edge research at the intersection of criminal justice and administrative law has made her an academic change-maker in these intertwined legal fields.

As early as 2016, Lauren recognised, and thus theorised, the proper appreciation of the legal role of the NPA, as a ‘hybrid’ institution of state that straddles the executive and the administration of justice. (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 orthodoxy that the NPA is a mere executive adjunct.

Lauren’s arguments on the constitutional positionality, functioning – independence and accountability –  of the NPA in SA’s state system have since gained academic traction with leading scholars now also referring to such ‘hybrid bodies’ (see for example, the work of Charles M Fombad). Further, her early theorisations on the role of the NPA and relatedly, prosecutorial policy, have since been foundational in Lauren’s Doctoral work. Her first published doctoral article considered the NPA as forming part of what she termed the public ‘Integrity & Accountability’ (I&A) Fourth Branch of State in SA, and this view has gained traction and fed into multi-stakeholder law-reform efforts, many of which have since been implemented (and/or are currently underway,) and in several instances, based upon the foundations of Lauren’s original doctoral theorisations and proposals for reform.

Much of Lauren’s academic scholarship focuses on the relatively under-theorised – and yet vital and interlinked – constitutional values of ‘accountability, responsiveness and openness’ (ARO) espoused in section 1(d) of the Constitution.

These ‘ARO values’ are essential in deepening a rule-of-law culture, combatting impunity, and enhancing the functioning of all (four) branches of state within the separation of powers. Without transparency there can be no accountability. Openness and responsiveness are thus necessary, if not sufficient, ingredients for ensuring transparent, participatory, justifiable, responsible and thus, 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 via its procedural tools. See: https://ojs.imodev.org/?journal=RIGO&page=article&op=view&path%5B%5D=426 .

Kohn reveals in this piece how and why the repeated incantation in case law and scholarship of a ‘public/private divide’ is a misnomer. Her article plunges through this misconception, and engages with the real implications of those complex legal cases that straddle what she instead, more accurately dubs, ‘the public/private interface’. The article is an important scholarly contribution that clearly and persuasively addresses the questions of when and why public-law prescripts should be applied to prima facie private orderings.

Lauren’s article cuts through the confusion, commencing with her derivation of a four-quadrant typology, ‘to enable scholars, lawyers and judges to frame – and thereby better situate – the specific public/private issue within 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.’

Against this backdrop, she analyses a noteworthy judgment penned by Unterhalter J (the ‘Ndoro case’) on the public-law treatment of ostensibly private orderings, all established via contract and all between private contracting parties, which the court found were nonetheless subject to review under the Promotion of Administrative Justice Act, 2000. Lauren’s article recalibrates the judgment’s reasoning, distilling what she terms ‘the triple Cs’ – comprehensiveness, coercion (sanctions for non-compliance) and compulsoriness (where the ‘scheme of regulation’ must be opted into). Ultimately, Kohn strings these factors together with others discerned from her reading of the case law in advancing a case for a simple proportionality analysis, based on certain relevant factors to determine when the ‘supervisory disciplines of public law’ find application to seemingly private affairs.  

In January 2024, Lauren presented her novel typology, and the essence of the Ndoro case, as a speaker on the Opening Panel of the Administrative Justice Association of South Africa’s (AdJASA) 2024 Conference, which marked 30 years since the signing of SA’s ‘Breakwater Declaration’.

In February 2022, Lauren represented the Academy as an Invited Speaker of the Department of Justice & Constitutional Development to present her research for this article at the Symposium marking 25 years of constitutional democracy. She spoke on the role of the courts in realising the promise of socio-economic rights while still ensuring institutional comity vis-à-vis the other branches. Her presentation was based on her analysis of the 2020 SCA judgment in Bo-Kaap Civic and Ratepayers Association v City of Cape Town, to illustrate how these tensions play out practically and how they should best be navigated by the courts. The article’s analysis draws on research in the fields of environmental law, town-planning law and administrative justice.

• This Opening Lead Essay in CCR XII is the culmination of many years of research, analysis, and practical legal problem-solving spanning the fields of constitutional, administrative, procurement, anti-corruption and criminal-justice law.
• Lauren began thinking about ‘fourth-branch-of-state’ arguments back in 2011 during her time in formal legal practice as an attorney. However, in law as in life, timing and context matter. Since that time, state capture, corruption, public- and private-sector malfeasance and maladministration have become major ‘matters of the moment’ in need of timely and meaningful scholarly attention with a view to having a socio-legal, reformatory impact.
• Lauren’s first doctoral article in her ‘PhD’s trilogy of publications’, theorises a workable, but constitutionally congruent plan for expeditious and effective state-capture redress efforts that adhere to the rule of law and do not flout the presumption of innocence, while still expediting the disgorgement of the illegal profits.
• The article is based, in part, on a legal opinion Lauren provided to help find the solution; namely the answer to the seemingly intractable problem of garnering momentum for repayment of illicit state-capture profits while awaiting legislative reform. Since the article’s publication, several of its proposals have started to practical redress and reform implications.

In short, in the article, Lauren:

• argues for the recognition of what she describes as the public ‘Integrity & Accountability’ (I&A) fourth branch of state in SA,
• explains the distinctive role of the ‘I&A bodies’ – insofar as they fulfil public functions in ‘checking and balancing’ other public powers – within the SA state system,
• theorises a unifying legal basis for their grouping and recognition as such,
• explores the role of the NPA (and prosecutorial policy) under this I&A fourth-branch rubric, and then
• leverage this doctrinal theorisation to make well-justified socio-legal proposals for the use of ‘non-trial resolutions’ (recast as what she terms ‘anti-corruption redress [AnCR] – or simply “redress” – agreements’ to get disgorgement efforts underway, while legislative reform is pending.

This Opening Lead Essay (in CCR XII, a Festschrift in honour of former CC Judge Froneman) innovatively, and appropriately, draws inspiration from his judicial innovation in the seminal case of AllPay II: the so-called, ‘no-profit-no-loss principle’.

• Recognising the untapped potential of this principle for the purposes of getting the disgorgement of state capture profits (as revealed in the so-called ‘Zondo Report’) going, 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 continue to benefit unlawfully from them.
• She thus proposes that ‘non-trial’, or rather, ‘AnCR’ / ‘redress’ agreements, should be concluded as expeditiously as possible, by way of published prosecutorial policy directives, to replenish the public purse.
• Lauren’s ground-breaking proposals have fed directly into the NPA’s welcome new I&A endeavours and what the NPA calls, ‘corporate alternative dispute resolution agreements’ are already seeing millions of stolen Rands returned to the SA fiscus, albeit only by offending private-sector complicit actors.
• Lauren’s proposal in this Essay also argues for legislative reform via a specialist administrative-penalty regime, albeit one that does not require quite as ambitious a legislative intervention as originally proposed in the Zondo Commission’s Report). Lauren instead makes the case for the use and amendment of certain provisions to the NPA Act and has recently made submissions to the South African Law Reform Commission on her 2021/22 proposal in this regard.

In 2023, Lauren published an op-editorial summarising core aspects of her CCR article in The Conversation, and as at 27 March 2023 it had received over 27 300 reads, making it one of the most-read pieces of 2023.

Significantly, on 6 February 2024, the NPA announced the adoption of a policy directive that, in large part, endorses her original doctoral proposals. See Daily Maverick and Mail and Guardian.

Lauren was awarded a fifth (5th) – record-breaking – UCT Faculty of Law Research Prize (Winner) for scholarly Lead Essay given, among others, its significant original contribution to knowledge and the adoption of certain law-reform efforts along the lines she proposed.

Lauren is open about loathing the so-called ‘humble brag’ and owns the fact that she is ‘delighted and proud’ to have been awarded the most (anonymously judged) UCT Law Research Prizes in the Faculty’s history; and ‘for scholarship that has had an impact “where the rubber hits the road”.’

This on-going book project is part of Lauren’s mission to make the principles of general administrative law more accessible to state, and societal, public, private and NGO sector entities and persons.

Lauren’s chapter in this international compendium provides an international reader with a ‘snapshot’ of how public accountability is actualised in SA. In particular, the chapter summarises four South African legal innovations that enhance public integrity and accountability:

• aspects of the administrative-justice and open-governance legislative regimes,
• the pros (rather than the cons) of the proliferation of new public-law causes of action, and
• the rise of the (public) ‘Integrity and Accountability (Fourth) Branch of State’ and the role that these I&A bodies are playing – and have yet to play – in checking and balancing of all manner of abuses of public power.

available open-access at https://www.jovene.it/public/allegati/156_Tieghi-ed.2024.pdf

Lauren presented my third doctoral article on the Opening Panel, ‘Restorative & Transitional Justice’ at the ‘Institutions for Conflict Resolution (COI) Conference, 2023: Towards just institutional approaches to conflict prevention and resolution’, 28 September 2023.

In this article, which has already been relied upon by scholars in four other jurisdictions (see Google Scholar), Lauren makes yet another orthodoxy-shattering argument. In particular:

• She presents a compelling case for the recognition of certain commissions of inquiry, which fall under the Commissions of Inquiry Act, given that they deal with matters of ‘public concern’ – the ‘Zondo Commission’ being a quintessential example – as being part of the country’s I&A Fourth Branch of State;
• Delineates an open-list of various context-specific factors, which weighed in the balance should indicate that these public ‘I&A’ commissions are to be recognised, capacitated and respected as commissions of inquiry pertaining not simply to matters of ‘public concern’, but moreover to those ‘concerns’ that go to the heart of ensuring public integrity and accountability; and thus,
• She is able to show how and why these Commissions should be accorded the respect they deserve at inception, during their lifespan, and following the issuing of their Reports.

On the matter of such ‘I&A Commissions’ Reports, Lauren’s article makes a defensible case for certain of the recommendations of such commissions of inquiry to carry appropriate legal weight, based on the facts of each case.

• This in turn means that in ‘appropriate cases’ – again based on the application of an open-list of factors to the specific case – these recommendations may legitimately bind those in respect of whom they pertain to, as revealed and recommended in the Reports.
• The article then takes this argument to the next level in making a sensible case for the establishment of a permanent anti-corruption commission to be housed within Chapter 9 of the Constitution and draws on recent international interventions, as further support in bolstering and/or glossing the Zondo recommendations on this matter.

Again, Lauren’s proposals are slowly garnering traction. See recent amendments to the National Prosecuting Authority Act, 1998, which now makes provision for a permanent statutory Investigating Directorate Against Corruption (IDAC) which may pursue cases ‘arising from the recommendations of commissions of inquiry’. The words emphasised signal recognition of the validity and importance of Kohn’s argument that such recommendations should, in appropriate cases, be treated as binding findings that ought to be actioned accordingly.

Lauren has also since provide input to Member/s of Parliament regarding the recently introduced 21^st Constitutional Amendment Bill, with a view to ensuring that the right case is made for the right kind of standing anti-corruption commission; namely, one that is lawfully and rationally established and operates in a constitutionally-congruent and non-duplicatory way vis-à-vis the efforts of the other I&A (/’watchdog’) bodies.

• See Lauren Kohn, ‘Principled, pragmatic law reform with promise’ Mail & Guardian, 6 September 2024, and
• Lauren Kohn ‘Comment: commissions of inquiry as part of a ‘just institutional approach’ in pursuit of integrity and accountability – A South African perspective’.