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Presume openness, not secrecy

11th September 2009

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Once the Judicial Service Commission (JSC) decided to have a formal hearing into the complaints against Western Cape Judge President John Hlophe, the burning legal question was whether the JSC would allow the public to attend the hearing and the media to report on the proceedings.

The JSC's rules provide for formal hearings to be open to the public, unless good cause is shown for closed hearings. Shortly before the formal hearings were to commence, the JSC decided that the hearings should be closed in order to protect the dignity of the offices of the chief justice, the deputy chief justice and the judge president.

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Judge Nigel Willis set that decision aside on the basis that the reasons given by the JSC did not justify closing the hearing and the general openness principle that applies to court proceedings should generally also apply to proceedings such as the JSC hearing.

Subsequently, when the JSC decided to start fresh proceedings, Judge Frans Malan also ruled that none of the reasons given by the JSC justified a closed procedure and that "the public deserves access to the further proceedings".

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It is therefore of great concern that the Judicial Service Commission Amendment Act, 2008, which has been passed, but is not yet in force, sanctions a general rule of secrecy.

The Act allows for complaints to be made against judges for incapacity, gross incompetence or gross misconduct. But when it comes to how these complaints are to be dealt with, the Act falls dismally short of what the openness principle requires.

It also provides for three main and complex tiers for the consideration of complaints. The first tier is when the chief justice or a head of court nominated by him decides that the complaint is, among other things, frivolous or hypothetical. In this instance, the complaint will be dismissed.

The second tier is engaged when the chief justice decides that, if a complaint is established, it may result in some remedial action against a judge but does not meet the threshold of an impeachable complaint.

He or his designate must then inquire into the merits of the complaint, in secret. This is not in itself objectionable; most jurisdictions recognise that there are justifiable reasons for confidentiality at the initial stages of assessing a complaint. A formal hearing may then be convened.

The third tier is when the chief justice decides that, if established, the complaint is likely to lead to a finding that the judge should be impeached; in this event, the complaint is referred to the newly created Judicial Conduct Committee (JCC) for at least three judges to investigate the complaint, in secret. If there is a prima facie case, the JCC may recommend to the JSC that the complaint should be referred to a full tribunal hearing. The JSC must then make a ruling on the complaint.

Throughout this convoluted process, the only nod to potential openness is at the formal hearing in the second tier or the tribunal hearing in the third tier. The Act provides that when these stages are reached, only interested parties such as the complainant, the judge concerned and their legal representatives may attend the hearing, unless the tribunal president in consultation with the chief justice determines that it is in the public interest that all or any part of the hearing be held in public.

This turns the presumption of openness on its head. The point of departure should be that these hearings should be subjected to the glare of publicity, and only departed from in exceptional circumstances.

It is circular to vest a discretion in the tribunal president to decide whether the public interest requires publicity: if a complaint has already reached the stage where a prima facie case against a judge has been established for either impeachable conduct or other serious misconduct, it is axiomatic that the public interest is acutely engaged. The Act will reverse the welcome trend that has been developing in favour of the openness of tribunal hearings. And it becomes yet another battle that the media will need to fight to keep the fires of democracy burning.

Written by: Dario Milo of Webber Wentzel

 

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