In Mail & Guardian Limited and Others v Judicial Service Commission [2009] ZAGPJHC 29, the South Gauteng High Court once again reaffirmed the public's right to be informed of issues concerning the integrity of public officials.

The applicants brought an urgent application for an order reviewing, setting aside and substituting the decision taken by the Judicial Service Commission ("JSC") on 22 July 2009 to conduct a preliminary investigation into the dispute between Cape Judge President John Hlophe and the judges of the Constitutional Court behind closed doors.

The JSC made this decision despite Judge Nigel Willis' judgment on 30 March 2009 in which he ruled that the JSC's enquiry must be open to the public and the media, that the matter was of manifest public interest and that proceedings of this nature should be held in public.

The urgent application was brought following media reports on Thursday, 23 July 2009 that the JSC had established a three man sub-committee that had been tasked to conduct a preliminary investigation into the complaint lodged against Hlophe JP by the Constitutional Court judges and the counter-complaint lodged by Hlophe JP against the Constitutional Court judges, and that this investigation would be closed to the media and the public.

The urgent application was opposed by the JSC. Hlophe JP filed an affidavit stating that he would abide the order of the court. Counsel for the Constitutional Court judges handed up a letter at court stating that they did not object to the procedure proposed by the JSC but that 'this was because they were unaware that any decision was being contemplated by the JSC and were not heard on the issue'.

The applicants contended that the JSC was required to consider the impact on the public of its decision to close the preliminary investigation and the media’s rights under section 16 of the Constitution given that the decision to bar the public and the media impacted directly on their rights under section 16 and undermined the principle of open justice.

The court held that:

Our constitutional order embraces a preference for openness in the conduct of public affairs and the public is entitled to know how the judiciary functions and to be assured that it functions consistently with the principles of independence, fairness and impartiality.
Any limitation on the rights of the media has to be consistent with section 36 of the Constitution. Organs of state such as the JSC that exercise discretionary powers must exercise their discretion with due regard to the impact that their decisions may have on the constitutional rights of those affected by the decision.
Hlophe JP's contention that preliminary investigations of this nature are generally held in private in order to protect the integrity of the judiciary did not apply in the circumstances as the identity of the judge involved was known and details of the dispute were already in the public domain.
The reasons advanced by the JSC did not justify the decision to hold the investigation in private. Given that the matter had already received extensive press coverage, any benefit that could have been derived from holding the enquiry in private would be outweighed by the negative perception concerning the administration of justice that would be created by closing the enquiry. There was also no suggested justification for limiting the rights of the media under section 16(1) of the Constitution.

Accordingly, the court ruled that the preliminary investigation had to be open to the public and the media and ordered the JSC to pay the applicants' costs.

Webber Wentzel represented the Mail & Guardian Ltd, Avusa Media Ltd, Independent Newspapers (Pty) Ltd and the Freedom of Expression Institute.

Back