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

• Jurisdiction: South Africa
• Citation: 2010 (1) SA 537 (GSJ)

eTV (Pty) Ltd and Others v Judicial Service Commission and Others
2010 (1) SA 537 (GSJ)

2010 (1) SA p537

Citation	2010 (1) SA 537 (GSJ)
Case No	13712/09 and 13647/09
Court	South Gauteng High Court, Johannesburg
Judge	Willis J
Heard	March 31, 2009
Judgment	March 31, 2009
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.

Flynote : Sleutelwoorde G

Judge — Misconduct — Hearing — Whether to be open to public — Whether good H cause shown for closure of hearing — Review of decision of Judicial Service Commission to close hearing in respect of complaint against judge — Test objective — Bald or threadbare explanation for closing hearing to public not sufficient.

Judge — Misconduct — Hearing — Whether to be open to public — Whether good cause shown for closure of hearing — Complaint by justices of Constitutional I Court against Judge President of Western Cape High Court, and Judge President's counter-complaint — Judicial Service Commission deciding to close hearing to public — Dignity and stature of judiciary would be enhanced by open hearing — Closed inquiry would result in speculation and erosion of confidence in judiciary — No good cause for closing hearing to public shown. J

2010 (1) SA p538

Headnote : Kopnota

A This matter concerned the hearing by the Judicial Service Commission (JSC) of a complaint made by the justices of the Constitutional Court against the Judge President of the Western Cape High Court, and of a counter-complaint made by the Judge President. The applicants sought an order setting aside the decision of the JSC that the hearing not be open to the public or media.

B Held, that the test in this matter was different to that ordinarily applied in reviews under the Promotion of Administrative Justice Act 3 of 2000. (At 543F.) The JSC had set a standard in its rules — that hearings it convened were to be held in public unless good cause was shown — and this was the standard which had to apply to the JSC and by which the application had to be tested. (At 543H - 544A.)

C Held, further, that, in the interpretation of 'good cause', the test had to be objective. (At 544G/H.) Moreover, in resisting an application for summary judgment, it would be difficult to show good cause why such judgment should not be granted, if the defence was bald, vague or laconic. While the applicants did not rely on a liquid document, they relied on something with a similarly self-evident character, the need for transparency in a matter of D public interest. (At 545C - 545E.) A bald and threadbare explanation for a departure therefrom could not be good enough. (At 545F.)

Held, further, that, on old authority, the burden of satisfying a court, that a litigant was entitled to succeed in a claim or defence, rested on the one who asserted, not on the one who denied. (At 545G - H.) The JSC asserted that there was good cause for the hearing to be behind closed doors; it had to E satisfy the court that this was indeed the case. (At 545H/I.)

Held, further, that the JSC's reason for not holding the hearing in public was 'to protect the dignity and stature of the office of Chief Justice and Deputy Chief Justice, and that of the Judge President'; yet ultimately the dignity and stature of those offices and of the entire judiciary would be enhanced by an open and public hearing. (At 546E - H/I.) Moreover, were the inquiry to F proceed behind closed doors, there would be undue and unfortunate speculations, and suspicion, as well as an erosion of public confidence in the judiciary. (At 546I - 547A.) Furthermore, in the exercise of a discretion, a person must not have acted for insubstantial reasons; while protecting the dignity of the judiciary was an important consideration, all had been left in the dark as to why holding the hearing behind closed doors would protect G the dignity of the persons sought to be protected. Mere say-so, a vague and laconic statement to that effect, was not good enough. (At 547B - E.) Accordingly, good cause had not been shown. (At 547E.) The decision of the JSC set aside.

Cases Considered

Annotations

Reported cases H

Southern Africa

Aktiebolaget Hässle and Another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) ([2002] 4 All SA 138): referred to

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687): referred to

Beyers v Pretoria Balieraad 1966 (2) SA 593 (A): referred to I

Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T): dictum at 229A followed

Dotcom Trading 121 (Pty) Ltd t/a Live Africa Network News v King NO 2000 (4) SA 973 (C) ([2000] 4 All SA 128): referred to

Duncan v Minister of Law and Order 1986 (2) SA 805 (A): dictum at 814D - E referred to J

2010 (1) SA p539

Ex parte Neethling and Others 1951 (4) SA 331 (A): dictum at 335A - E A referred to

Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A): dictum at 579F - G referred to

Minister of Law and Order and Others v Pavlicevic 1989 (3) SA 679 (A): dictum at 684G referred to

Pillay v Krishna and Another 1946 AD 946: dicta at 951 - 954 referred to B

S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (2) SACR 277; 1995 (7) BCLR 793): referred to

S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC) (1995 (2) SACR 125; 1995 (7) BCLR 851): referred to

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others C 2008 (2) SA 24 (CC) (2008 (2) BCLR 158; (2007) 28 ILJ 2405; [2007] 12 BLLR 1097): referred to

South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 (1) SA 523 (CC) (2007 (1) SACR 408; 2007 (2) BCLR 167): referred to

Standard Bank of SA Ltd v El-Naddaf and Another 1999 (4) SA 779 (W): referred to D

Tregea and Another v Godart and Another 1939 AD 16: dicta at 32 referred to

Vassen v Law Society of the Cape of Good Hope 1998 (4) SA 532 (SCA) ([1998] 3 All SA 358): dictum at 537F - G referred to

Zantsi v Council of State, Ciskei, and Others 1995 (4) SA 615 (CC) (1995 (10) BCLR 1424): referred to. E

Foreign

England

R v Secretary of State for the Home Department, Ex parte Daly [2001] 3 All ER 433 (HL): dictum at 447a referred to

Scott v Scott [1913] AC 417 (HL): dictum at 447 referred to

Tejani and Others v Official Receiver [1963] 1 All ER 429 (PC): referred to. F

Statutes Considered

Statutes

The Promotion of Administrative Justice Act 3 of 2000: see Juta's Statutes of South Africa 2008/9 vol 5 at 1-263.

Case Information

Applications for an order setting aside a decision of the first respondent. G The facts appear from the reasons for judgment.

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. H

IV Maleka SC (with M Lekoane) for the first respondent.

V Ngalwana for the third respondent.

No appearance for the second and fourth to sixteenth respondents.

Judgment

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

2010 (1) SA p540

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...