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Judge Frans Malan has done his duty by affirming the Constitutional value of openness and setting aside the Judicial Services Commission's decision to conduct a closed investigation in the matter of the complaint by Constitutional Court judges and a countercomplaint by Western Cape Judge President Hlophe. He has substituted his own ruling for that of the JSC in order to respect and give effect to both open justice (s 34) and the right of the public to receive information, in this case through the media which plays an instrumental role in democracy (s 16). The Constitution expects a court, when interpreting the Bill of Rights, to promote the values that underlie an open and democratic society. Openness is enshrined throughout our Constitution to a unique degree.
The DA welcomes this judgment for its adherence to the values and provisions of our Constitution.
The DA will simultaneously continue to desist from making any comment on the matter before the JSC, because in terms of s 177 of the Constitution it is the National Assembly that takes any decision on the impeachment of judges for inter alia gross misconduct, following a finding by the JSC.
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