eTV (Pty) Ltd and Others v Judicial Service Commission and Others

• Jurisdiction: South Africa
• Court: South Gauteng High Court, Johannesburg
• Judge: Willis J
• Judgment Date: 31 March 2009
• Citation: 2010 (1) SA 537 (GSJ)
• Hearing Date: 31 March 2009
• Docket Number: 13712/09 and 13647/09
• Counsel: A Redding SC (with S Budlender) for the first and second applicants. P Kennedy SC (with K Hofmeyr and K McLean) for the third to seventh applicants. A Dodson for the amicus curiae. IV Maleka SC (M Lekoane) for the first respondent. V Ngalwana for the third respondent. No appearance for the second and fourth to sixteenth respondents.

Willis J:

I have before me several urgent applications. They all relate to I an order in which it is sought to set aside the decision by the Judicial Service Commission (the JSC), taken on 28 March 2009, and communicated to various of the applicants on 30 March 2009, that the hearing in the matter of the justices of the Constitutional Court and Judge President Hlophe of the Western Cape High Court (the hearing) would not be open to the public or the media. J

Willis J

A An order is sought in all of the matters that the court directs that the hearing be open to the public and the media. A specific order has been sought by eTV (Pty) Ltd, relating to the sound recordings of the proceedings.

There has been an application by the Centre for Applied Legal Studies B to be joined as amicus curiae in this matter. That application was not opposed and, by agreement, the Centre for Applied Legal Studies was joined as a party. The amicus curiae joins in the application on the basis that it represents the general public, rather than the other applicants who, in the view of the Centre for Applied Legal Studies, represent the media and the specific interests of the media in this particular matter. C The point has been made (and indeed taken by the court) that this is not a matter of mere 'media interest', if such interest can be described as 'mere'.

Counsel for all the parties agreed that it would be sensible that all these separate applications be heard as one, and that one particular judgment D be given.

The first respondent in all the matters is the JSC. The second respondent is the acting chair of the hearing, who is the Judge President of the Supreme Court of Appeal, Judge Lex Mpati. The third respondent is the E Judge President of the Western Cape, Judge John Hlophe. The remaining respondents are the justices of the Constitutional Court, the complainants in the case against the third respondent.

The second respondent has taken no stance in this application, as to whether the hearing should be open to the public or not.

The third respondent, Judge John Hlophe, has through his counsel F indicated that he will abide the decision of this court.

None of the justices of the Constitutional Court have opposed this particular application and it therefore seems to me to be fair to assume that they are content also to abide the decision of this court.

G Interestingly, in the answering affidavit prepared on behalf of the JSC, no allegation was made that the Chief Justice, the Deputy Chief Justice, other judges of the Constitutional Court or the Judge President of the Western Cape vigorously opposed the question of the hearing being held in public.

It seems from submissions that were made from the bar, on behalf of the H third respondent, that the third respondent did indicate to the JSC that he would prefer that the hearing was not public, but nevertheless, as I have already indicated, the third respondent has indicated that he will abide the decision of this court.

The matter has been brought as one of urgency, precisely because it is I common cause that the hearing of Judge President Hlophe is due to commence tomorrow, that is, 1 April 2009.

By reason of the pressing urgency in the matter it is necessary that I should deliver a judgment ex tempore, more particularly as the parties may well wish to know my reasons for the order I make before the J hearing commences tomorrow. I mention this not in any spirit of

Willis J

arrogance: reasons, whether good or bad, matter. In a case such as this A they may matter very much indeed.

Regrettably, this means that one cannot do full justice to the matter and to all the very able and well-prepared arguments that have been presented by counsel for all parties. B

It should be observed that the applicants represent all the major media C houses in South Africa, and all the major newspapers, and almost all the public broadcast entities in South Africa. Affidavits have been filed by the editors of such well known newspapers as The Sunday Times, The Star, Beeld, The Mail and Guardian, and well known television presenters such as Debora Patta for eTV.

The Freedom of Expression Institute has also been a party to these proceedings. It is clear that the matter is one of considerable public interest, and indeed, if I understood Mr Maleka SC - who appears for the JSC - correctly, he does not contend that the matter is not one of considerable public interest. D

As long ago as 14 July 2008 the JSC called for interested parties to make submissions on whether the pending hearing into complaints by the justices of the Constitutional Court in relation to Judge President Hlophe (and vice versa) should be public, and, if they were to be public, what media coverage should be allowed. E

Annexed to the papers on behalf of the applicants is, if I may say so, impressive documentation, including memoranda submitted by interested parties, supporting an open hearing. These memoranda allude to case law from around the world, case law from South Africa, and ringing statements concerning the importance of open proceedings made by F philosophers and commentators, some of whom have had a reputation enduring for several hundred years. I refer, for example, to Jeremy Bentham.

As I have already indicated, it is not possible while giving an ex tempore judgment to do true justice to the submissions. Suffice to say that they G were impressive, and it is quite clear that the thrust thereof is that it is of fundamental importance, and an issue of fundamental constitutional and human rights, that matters of great public importance should be determined in public rather than behind closed doors, save in very special circumstances which may relate, for example, to questions of national security. H

Over and over again in this impressive documentation put before me is stressed the importance of judges being subject to public scrutiny in enquiries of the nature envisaged in this particular case. I commend the reading of the memoranda therein contained to all who take an interest in these matters. I

The JSC, having received these representations, which it called for as long ago as July 2008, made a decision on 28 March 2009 not to hold the hearing, in respect of the complaint by the justices of the Constitutional Court, and the counter-complaint by the Judge President, in public. J

Willis J

A This decision was publicised in a media statement on the same date. Reasons were called for and the Judicial Service Commission issued the following reasons:

'3.

All 21 submissions, including those on behalf of the justices of the Constitutional Court and Judge President Hlophe were fully B considered by the commission, but the commission will not give reasons in respect of each individual application.

4.

The commission had regard to the submissions and the kind of allegations that had been made concerning the motives and alleged impropriety of senior members of the judiciary. The commission weighed the public interest and the need for transparency of the C proceedings, and considered that good cause exists for the exclusion of the public and the media from the hearing.

5.

Whilst the respective, extraordinary and unprecedented complaints are against individual judges, the JSC considers it imperative to protect the dignity and stature of the office of the Chief Justice and the Deputy Chief Justice, and that...