Advocate Jeremy Gauntlett SC, public lecture at the University of Johannesburg, May 7 2013
FREEDOM'S CHILDREN? INSTITUTIONAL AUTONOMY AT SOUTH AFRICAN UNIVERSITIES 20 YEARS ON
Most of us who turned away from a life in academia can point to a defining moment. It is when you know whether your own set of sensibilities inclines you to the life, or not. Or perhaps that the challenge is put in terms that defeat you. For me it was the latter. In my case, the decision was made when Sir Rupert Cross, Vinerian Professor of English Law and Fellow of All Souls handed back a set of collections - essays, in Oxford argot - to a BCL class. Although he was blind from birth he had the extraordinary ability to look witheringly at an audience. As he did now, to deadly effect. He shook his head and said: "I know you really can't help your laziness. But you really should try to do something about your stupidity".
That seemed to me as unattainable as it was unanswerable. I turned to practice instead. But one way or another, my life has remained tied to universities. I believe in the university, as simply essential to free thought and a free society. So tonight I thought I should venture with you on an appraisal of the tricky terrain suggested by the topic.
I intend to confine it to one sub-theme of academic freedom: institutional autonomy, now and then. More narrowly still, its relation to legitimate needs and objects of the executive on the one hand, and academic freedom on the other. There are many other perennial issues which arise - admissions policies, the tensions between teaching and research, the effect on universities of chronic failure in primary and secondary education, issues of academic freedom within universities - but these are not for tonight.
That is because I am mindful of a deadly intervention by a very great South African lawyer, Sir Sydney Kentridge QC, in the Court of Appeal. His opponent was digressing. He rose in protest. An emollient judge said: "Mr Kentridge, I think we must allow him a little latitude". "My Lord", replied Kentridge, "it's not his latitude I object to. It's his longitude".
I need to forestall such a rebuke.
This is my thesis. It has five points to it. First, that the constitutional dispensation inaugurated in 1994 entrenches in the Bill of Rights academic freedom. Second, that this is explicable in the light of the very particular history of academic freedom in South Africa - and to be interpreted with regard to it. Third, that that history records, in particular, a resistance to academic freedom being subservient to any notion of any greater - or indeed, different - social good. Fourth, that on to the statute books four months ago crept however a series of statutory provisions inimical to the institutional autonomy of universities. Fifth, that, consequentially, these diminish academic freedom - and in my view, do so unconstitutionally.
But first you would require me to state my concept of academic freedom. I take as my text a United States Supreme Court opinion. Not just any opinion, but one by a celebrated legal scholar who became a great judge, Felix Frankfurter. I do so because that great judge, when seeking to define academic freedom for the United States, took it not from his but from our own country. In Sweezy v New Hampshire,[1] Justice Frankfurter said this:
"It is the business of the university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail ‘the four essential freedoms' of the university - to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study".
Those "four freedoms" are derived from the inaugural address of Professor T.B. Davie as Principal and Vice-Chancellor of the University of Cape Town. Tom Davie, in the later words of Chief Justice Centlivres, himself the Chancellor of UCT, on that occasion "set forth his articles of faith. The first was that a university is primarily a centre of learning, the second that a university flourishes only in an atmosphere of absolute intellectual freedom, and the third, that the pre-eminent virtue of university life is intellectual integrity".[2] T.B. Davie, in articulating the four freedoms, stressed that their root was "freedom from external interference in (a) who shall teach, (b) what we teach, (c) how we teach, and (d) whom we teach".[3] He concluded, in fateful, prophetic words:
"These freedoms we value highly. Both staff and students are bound to rise in protest at the least threat to their sanctity".
It is not my ambition tonight to venture into the debate over classical and contextual definitions of the concept of academic freedom, least of all the distinctions drawn between deontological and teleological models.[4] The Constitution gives me a surer footing for legal if not philosophical purposes.
I thus turn to the first argument in my thesis: that South Africa since 1994 need not, as was once the case, scrabble between the flat stones of oppressive statutes to find an etiolated common-law academic freedom. It is powerfully protected in the country's supreme law.
Section 16(1)(d) of the Constitution reads:
"Everyone has the right to freedom of expression which includes -
...
(d) Academic freedom and freedom of scientific research".
Whether academic freedom is properly classified under freedom of expression is debatable. Academic freedom, in the sense T.B. Davie delineated, clearly includes other fundamental rights entrenched in the Bill of Rights of the Constitution: for instance freedom of association, freedom of movement, the right of assembly, demonstration, picket and petition and the right to choose an occupation or profession freely, the right to education, regarding language and culture and membership of cultural religious and linguistic communities is also implicated.
So are others. But like the United States, we have gone down the road of not only recognising academic freedom as a constitutional right, but attaching it to what is at least a main facet of its existence, free speech.
To do so is not to confine the right, nor to deny its interwoven nature with other fundamental freedoms. T.B. Davie saw this, believing in the unfolding of the human spirit, unconstrained by arbitrary intrusion, in circumstances in which people are most nearly able to realise their gifts and thought is to be advanced. For that free speech is a necessary but not a sufficient condition.
Of course, as a constitutional right, academic freedom is not absolute. It exists side by side with the rights of others. It also has an interesting express internal limitation in section 16: the exclusion of what is generally termed hate speech. Thus section 16(2) provides:
"The right in subsection (1) does not extend to -
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm".
Aside from this internal limitation, there is the general limitation for which section 36 of the Constitution provides. Like all rights, it may be limited by a law of general application "to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom". Various factors are important in this regard, such as the importance and the purpose of the limitation, the nature and extent of the limitation, and whether it represents the less restrictive means to achieve the purpose of the limitation.
So academic freedom itself is now, to apply the fashionable demotic, ‘constitutionalised'. There can be little doubt that the framers of the Constitution were aware of T.B. Davie's four freedoms, and meant them to serve as cornerstones, without reciting them. Especially in view of the particular history of academic freedom, and the assaults on it, in South Africa.
That brings me to my second point: the particular light thrown on the ambit of academic freedom by its recent history in South Africa. This entailed, in short, the resistance by those of whom T.B. Davie was one, academic freedom being subservient to any rampant assertion of popular will or greater social good. For it is this assertion which I see as resurgent in the new statutory provisions.
In the 1950s, it is often forgotten, a powerful lobby of university principals and senate members at South African universities abhorred the stance that T.B. Davie personified. In their concept of society, restricted by race and even by group within race, they saw themselves as both a new order - and even majoritarian.
The battle lines were sharply drawn by Dr H.B. Thom, principal of the University of Stellenbosch, in his address on "University and Society" in 1965. Stellenbosch was to be a volksuniversiteit, no ivory tower or preserve of the intellectual elite, but a mirror held up to Afrikaner society. It would be property of the people. Its science and teaching would serve its needs. Key was the notion of volksgebondenheid. Thom made clear what he meant:
"(Universiteite) sal vryheid van studie, onderrig en navorsing hoogskat, maar in alles wat hulle doen, sal hul optree soos dit vir burgers van hulle eie land en lede van hulle eie volk betaamlik is. Dit moet 'n gesindheid wees wat nie van buite opgelê of opgedwing word nie, maar 'n gesindheid wat vanselfsprekend is en as vanselfsprekend uitgeleef word".[5]
Dr Thom's address appeared in print with a supplement by the poet Professor W.E.G. Louw. Louw quoted Verwoerd to the effect that a reliance on academic freedom is actually part of an alien (volksvreemde) imperialist ideology:
"Enige strewe by 'n universiteit na 'n vryheid groter as sy plig en vernaamlik sy volksplig sodat hy sy volksgebondenheid wil verloën, in die naam van akademiese vryheid, ontstaan gewoonlik uit internasionale strominge wat by groot nasies begin en hul belange of ideologieë moet dien. Dis nie vryheid nie, maar 'n vreemde slawerny wat die geleerdes van 'n klein volk probeer wegspeen van sy volk na onderworpenheid aan wat skynbaar universeel is".
True freedom, Louw expanded, "is geen vryheid as dit geen grens het nie ... [dit is] die vreedsaamheid van die gemoed wat ontstaan uit sy gevoel van sy eie veiligheid".[6]
Of course the prelude to the sharp divide between those who would subordinate academic freedom to membership of a defined society, and those who would not, was the closing of what were hitherto the open universities, notably the Universities of Cape Town and the Witwatersrand, to people of colour. In March 1957 the Separate University Education Bill was tabled in Parliament. Its purpose was to close open universities to "non-white persons" and transfer to the government the University College of Fort Hare and the "medical school for non-Europeans at the University of Natal".
After passage through a select committee, transformed into a Commission of Enquiry during the parliamentary recess, the legislative endeavour resurfaced as a new Bill. It bore fine Orwellian plumage. It now had a new name: the Extension of University Education Bill. Who could oppose such a noble object? It was submitted to Parliament without prior consultation with either the University Advisory Committee or the Committee of University Principals.[7]
How, for some, academic freedom had to bend the knee to the society in which it found itself was perhaps most clearly articulated by the-then editor of Die Kerkbode, Dr A.P. Treurnicht. He wrote:
"... die universiteit moet in die beste sin van die woord volksgebonde wees ... Van 'n algehele vryheid van denke ... kan daar dus ... geen sprake wees nie ... Dit is ook duidelik dat omdat hierdie waarhede 'n eie ingroeiing en uitlewing in ons volk gevind het, die universiteit wat midde in die volkslewe staan en daaraan diensbaar wil wees, die volkskarakter sal vertoon ... En wat ondermynende en onwettige elemente betref - vir hulle sal daar geen beskerming of plek wees nie".[8]
Thus the university is an artefact of time and place; it belongs - in both senses - to its own society; it avoids conflict with that society by being as integral to it as the heart or colon is to the body itself. And in that way the restless intellectual may find, in W.E.G. Louw's phrase, that peace of mind which grows from a sense of personal safety.
It is a variant of that notion which, I suggest, is once again on the loose. True, not the pseudo-anthropological notion of a volk, with its atavistic evocation of Germania. But still the notion of a new order, to which loyalty is owed, and within which a personal freedom is yet to be achieved - if (and it is a Faustian pact) it defers to the new order.
And so I turn to my fourth point: the effect of a new set of legislative provisions, the Higher Education and Training Laws Amendment Act 23 of 2012 ("the Amendment Act"). To understand their reach, and often bizarre provisions, it must be noted that there are (in the Higher Education Act itself) already far-reaching powers of intervention for the Minister. These are hinged on circumstances of serious mismanagement or financial malpractice.
The Minister already has the power to send in an investigator. He already has the capacity to intervene in circumstances of serious institutional failure. There can be no sensible in-principle objection to such a redemptive, fire-engine power. The Constitution contemplates similar emergency interventions in other contexts (thus by national government when provincial departments fail, or by provincial governments when municipalities are moribund).
My objection to the amendments is simple: the fire-engine becomes a commodious, ill-designed vehicle permitting ministerial takeover in a range of circumstances shrouded in at-times comical inept draftsmanship. The red light is supplanted by a discretionary blue light - will all that has come to signify in our society.
How much this is by design or the result of haste is unclear. The Amendment Act was given the force of law with startling celerity. Passed by Parliament in November 2012, without (as I shall show) proper consultation regarding material changes, it already received presidential assent on 12 December 2012, and was gazetted just a week later. What it does is to extend the Minister's power to intervene in the governance and management of higher education institutions.
It authorises the Minister to issue directives to a university council if, in the Minister's opinion, the council has acted "unfairly or in a discriminatory or inequitable way towards a person to whom it [the council] owes a duty".[9] If such a council fails to comply with any such ministerial directive, whatever the explanation and however limited either the directive by the Minister or the default by the council, the Minister must replace the council with an administrator with extensive powers. The council, moreover, is thereby automatically dissolved.
These are the more objectionable features, in detail, of the Amendment Act:
(a) Section 1 introduces inter alia section 27(5B) into the Act, which disqualifies a Council member from reappointment if he "is implicated in the report of the independent assessor" (emphasis added). Not found to have committed any criminal or civil wrong by a competent tribunal. Just "implicated" - this in the view of the Minister's investigator. And so marked for life.
(b) Section 2 introduces section 38A, authorising the Minister to appoint "a national institute for higher education ... with a specific scope or application" (emphasis added), the "particulars" of which are to be prescribed by the Minister. What these "national institutes", hovering over the universities, will do is left to the Minister to determine. While the establishment of an institute (of which, it appears from the rest of the Amendment Act, there may now be as many as the Minister wishes)[10] must be preceded by consulting the CHE, the "particulars" are prescribed by the Minister without any consultative (or other procedural) constraints.
(c) Section 3 introduces section 38B, which notionally provides for the functions of a national institute (i.e. inter alia "ensuring collaboration, co-ordination or collaboration and co-ordination of the work of higher education institutions and national institutes for higher education"). If this jumble of words means anything, it is that besides collaboration "co-ordination" may be directed. As with the "particulars" of the establishment of the institute, the functions of the institute is (subject only to those functions already assigned by subsection 38B(1))[11] left by the legislature to be prescribed by the Minister.
(d) Section 7 introduces section 38J, allowing the Minister to issue directives to the board of a national institute, failing compliance with which the Minister "must" dissolve the board and appoint an administrator to take over its functions. The same section further introduces sections 38K to 38N, purporting to authorise the appointment of an administrator - upon whose appointment the board of a national institute of higher education is dissolved automatically, without any exception. Thus the (enhanced) powers of ministerial intervention in university councils are simply replicated for the new super-entities, each with a "scope" of the Minister's ad hoc determination.
(e) Section 9 inserts section 45A, making extensive provision for investigations by independent assessors as regards universities. Despite its encompassing nature, section 45A does not properly deal with fundamental issues like open and transparent proceedings, procedural fairness, and the privilege against self-incrimination. All of these fundamental issues are either omitted, or not protected as required.
(f) Section 11 introduces section 49A, providing for intervention by the Minister in the council of a higher education institution by issuing directives similar to those referred to in (d) above (which deals with ministerial intervention in national institutes). One of the most striking grounds of intervention in a council is the higher education institution's unfair, discriminatory or inequitable action towards "a person to whom it owes a duty under the Act".[12] As in the case with national institutions, any failure by the council to comply timeously with the directive requires the Minister to dissolve the council (without any provision authorising the Minister to extend the time for compliance with the directive or make an exception, and without conferring a discretion on the Minister to impose a different or lesser remedy required by the circumstances). Section 11 further introduces section 49B, which provides for the appointment of an administrator "to take over the management, governance and administration" of a higher education institution, upon which the council of that institution is dissolved automatically and categorically (section 49E).
May I highlight three bases on which, in my view, the Amendment Act is open to constitutional challenge. The first is that it is impermissibly vague. The second is that it unjustifiably infringes the constitutional right to academic independence. The third is that it violates the right to a fair procedure. I address each in turn.
It is a fundamental principle of the rule of law that legislation may not confer wide and unconstrained discretions on members of the Executive, without providing adequate guidelines for the exercise of the discretion. The rule of law, spelt out in section 1 of the Constitution as a foundational value, requires that rules be articulated clearly and in a manner accessible to those governed by the rules.
Numerous provisions of the Amendment Act confer an unfettered discretion on the Minister, especially those providing for the appointment of an administrator.
Firstly, the new section 49(b)(1)(b) to be inserted in the main Act does not specify the circumstances justifying the appointment of an administrator. Because of the far-reaching consequence of such appointment (not just the vesting of all powers - thus management, governance and administration - in a single person, but also the automatic and irreversible dissolution of a council), the lack of legislative guidance provided to the Minister falls foul of constitutional court caselaw.
Sections 27(5B), 38A, 38B, 45A, 49A(1), 49B(1)(b) and 49B(1)(c) are in my view all liable to be set aside on this basis.
The second is that the Amendment Act in material respects trenches upon academic freedom, in a manner which cannot be justified in terms of section 36 of the Constitution.
Based on the judgment by Frankfurter J in the US Supreme Court, American[13] and South African legal commentators are ad idem that the right to academic freedom "also includes institutional autonomy".[14] It seems to me clear that the approach by the US Supreme Court is likely to influence a South African court's approach,[15] and should be adopted.[16] On the basis of this approach, American Courts have invalidated a wide range of statutory provisions for violating the constitutional right to academic freedom.[17]
Interestingly, there has been one prior attempt, in what we might call the constitutional era in South Africa, to provide a basis for State intervention in higher education institutions. In 1993 there was a plan to build this into the (interim) Constitution itself - where of course it would have been beyond challenge. There, too, the suggestion was that the measure was necessary to empower the State to secure race and gender equality in universities. Thanks largely to the exertions of Professors John Dugard and Etienne Mureinik, the attempt was routed. Mureinik and Dugard compellingly argued that the proposed non-constraint clause to be inserted in the interim constitution was superfluous and, indeed, an impermissible measure allowing the State an unfettered right of interference in university autonomy.
Lastly, it is necessary to consider a cluster of further defects in the Amendment Act which render it assailable also on the basis of the constitutional right to procedural fairness.
Firstly, the Amendment Act automatically disqualifies for reappointment as council member any person who has been "implicated" in a report by an assessor.[18] It is not permissible to affect the rights of an individual merely on the basis of an "implication" of that person in a report. What is required is that a particular finding against a person be made, and that the finding justifies the penalty imposed. Legislation which imposes consequences on the basis of a person merely being "implicated" per se violates the right to procedural fairness.
Secondly, the Amendment Act does not qualify an assessor's powers to conduct an investigation with due regard to procedural fairness. At most section 45A(9) purports - "in accordance with section 3(5) of the Promotion of Administrative Justice Act"[19] - to give the assessor the power to allow legal representation. While the constitutional requirement of procedural fairness and the provisions of PAJA should be read into ordinary legislation, it is salutary for empowering provisions to provide explicitly for a fair procedure - something which section 45A omits to do. Legislation which purports to create a framework for a lay assessor to conduct an inquiry which prejudices the rights of individuals and institutions is demonstrably deficient if it does not provide procedural protections.
Thirdly, the assessor is provided with an unconstrained power to exclude from his investigation "any person or all persons whose presence is not desirable".[20] Apart from being impermissibly vague, the provision unjustifiably compromises a fair procedure by excluding affected persons, potential witnesses and observers. This further violates the constitutional founding values of accountability, responsiveness and openness.[21] Should there be any countervailing consideration rendering in camera proceedings justifiable,[22] the empowering provision should stipulate the circumstances which do. It is not permissible to leave fundamental procedural aspects to the discretion of an adjudicator who may not have a legal qualification and sufficient experience.
Fourthly, section 35A(2) further compromises the fairness of the proceedings by requiring a blanket embargo on any documents, record or evidence disclosed to the assessor. This is an obvious violation of the right of access to information, freedom of expression and open justice[23] - and it compromises the integrity of the proceedings.[24]
Fifthly, article 45A(4) to (6) purports to confer powers on the assessor to direct evidence to be provided under oath. It does not provide for any person subjected to such directive by the assessor to invoke the privilege against self-incrimination, and does not absolve such individual from potential criminal liability on the basis of the evidence adduced under compulsion.[25] In similar circumstances the Constitutional Court declared a comparable provision unconstitutional for violating the right to a fair trial.[26]
These are detailed reasons for concluding that, on substantive and procedural grounds, the Amendment Act is unconstitutional. More important than the detail is the resurgent notion that academic freedom is in some way subservient to a greater loyalty to society, be it now a democratic, majoritarian one. The volksgebondenheid, proselytised by H.B. Thom, W.E.G. Louw and A.P. Treurnicht in the passages I have cited, in a different form. The suggestion that academic freedom is a stalking horse for nebulous imperialisms, or - then and now, ‘liberalism', that thing from which mothers should avert their children's faces - has been exhumed.
Of course, academic freedom finds different expressions at different times. T.B. Davie's concept was much focused on what universities faced then. His formulation is not a tablet from Mount Sinai. But what at all times is to be resisted are the siren voices asserting that the four freedoms must needs defer to a prevailing Zeitgeist, whatever its name.
Tom Davie saw this. He knew he would not live to see the four freedoms restored in his own time. Nor, it is apparent, did he think the struggle would thereafter cease. The second T.B. Davie Memorial Lecture was delivered (on 26 July 1960), after Davie's death, by a distinguished South African historian Professor C.W. de Kiewiet, who had gone on to become President of the University of Rochester in the United States. In their last conversation, De Kiewiet recalls Tom Davie "with his gnarled hand on the cane, standing almost like one of your great oaks in one of your great storms, and he said: ‘I will fight this. I will not give in'. That was Tom Davie".[27]
The Amendment Act is repugnant, in a constitutional and social sense. It should not stand.
T.B. Davie left a valediction, almost a nunc dimittis: "These freedoms we value highly. Both staff and students are bound to rise in protest at the least threat to their sanctity".
In more familiar words, perhaps, a luta continua.
Jeremy Gauntlett SC[28]
Footnotes:
[1] 354 US 234 (1957) at 346.
[2] The first TB Davie Memorial Lecture, delivered 6 May 1959, p 3.
[3] Ibid, page 5.
[4] Hall "Introduction - Academic freedom and the university: fifty years of debate" Academic Freedom and Institutional Autonomy: Views from the University of Cape Town at 4, available here. Bentley, Habib and Morrow "Academic Freedom, Institutional Autonomy and the Corporatised University in Contemporary South Africa". Report prepared for the CHE's Task Team on South African Government Involvement in, and Regulation of Higher Education, Institutional Autonomy and Academic Freedom (Council on Higher Education, 2006) at 14, 16-17.
[5] H.B. Thom ‘Universiteit en Maatskappy', Openingsrede Universiteit van Stellenbosch 24/2/1965 (quoted in Hertzog et al Gesprek sonder Grense: Huldigingsbundel ter ere van Johan Degenaar (H & B Uitgewers, Stellenbosch, 2006) 102).
[6] Ibid 103.
[7] The Open Universities in South Africa and Academic Freedom 1957-1974 (Juta, Cape Town, 1974) 9.
[8] A.P. Treurnicht "Universiteit en Christendom" (Die Kerkbode, 31.3.65), quoted in Hertzog et al op cit 103 (emphasis supplied).
[9] Section 7 of the Amendment Act.
[10] See e.g. section 3 of the Amendment Act, substituting section 38B(2) to provide for the prescribed functions of each national institute for higher education (emphasis added).
[11] These functions include "provid[ing] services to higher education" (section 38B(1)(a)), "ensuring collaboration, co-ordination or collaboration and co-ordination" (as already mentioned, pursuant to section 38B(1)(b) and advising the Minister (section 38B(1)(a)).
[12] Section 49A(1)(c), emphasis added.
[13] Rosenthal The Emerging First Amendment Law of Managerial Prerogative" (2008) 77 Fordham L Rev 3 at 99. For a discussion of academic freedom from an American perspective, with a particular focus on institutional autonomy, see Schauer The Thirteenth IRA C. Rothgerber, Jr., Conference On Constitutional Law: Horowitz, Churchill, Columbia - What Next for Academic Freedom?: Is there a Right to Academic Freedom? 2006(77) U Colo L Rev 907 and caselaw there collected. See also Byrne "Academic Freedom: A ‘Special Concern of the First Amendment'" 99 Yale LJ 251 at 313 at 314, referring to Regents of the University of California v Bakke 438 US 265 (1978) at 312 and the influence of Dr Davie's definition approved by Frankfurter J in Sweezy v New Hampsire.
[14] Malherbe "The erosion of academic freedom in South Africa: reflections on a battle forfeited" 2003(2) TSAR 213 at 220. See further Dlamini "Limitations on and threats to university autonomy and academic freedom" 2000(2) THRHR 171 at 199; Smith "Constitutional and Academic Freedom" 1995(112) SALJ 678 at 680.
[15] See e.g. Smith "Constitutional and Academic Freedom" 1995(112) SALJ 678 at 680.
[16] Inter alia because the US Supreme Court's approach is closely influenced by South African circumstances; and because the (tacit) right to academic freedom sourced in the First Amendment to the American constitution relates directly to the right to freedom of expression, which is the focus of section 16 of the South African Constitution - in which the right to academic freedom resides.
[17] See the caselaw collected in Byrne "Academic Freedom: ‘Special Concern of the First Amendment'" 99 Yale LJ 251 at 313 at 312-329.
[18] Section 27(5B).
[19] Act 3 of 2000. However, section 3(5) of PAJA deals with an alternative procedure from that statutorily prescribed. It does not deal with legal representation. Thus the provision makes no sense.
[20] Section 45A(1)(c).
[21] Section 1(d) of the Constitution.
[22] This is an exception to the principle that inquiries into public affairs must be prosecuted in public (which principle section 16(1) of the Supreme Court Act 59 of 1959 recognises in the context of court proceedings).
[23] Cf Shinga v The State 2007 (4) SA 611 (CC) at para 26; and South African Broadcasting Corp Ltd v National Director of Public Prosecutions 2007 (1) SA 523 (CC) at para 32; Independent Newspapers (Pty) Ltd v Minister for Intelligence Services 2008 (5) SA 31 (CC) at para 39-42; Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development 2009 (4) SA 222 (CC) at 146-150. Although these principles have been articulated in the context of court proceedings, they apply equally in the context of a public institution whose public nature (and the public interests at stake) is the purported justification for State intervention.
[24] It is no answer that the assessor retains a discretion to direct the disclosure of any document, record or evidence on application, because the default position is that proceedings should be open, and information freely available. Furthermore, the assessor is not provided with any guidance by the legislature as regards the exercise of the discretion to disclose the material.
[25] Ferreira v Levin NO 1996 (1) SA 984 (CC) at paras 158-159.
[26] Idem at paras 76, 90.
[27] Second T.B. Davie Memorial Lecture (UCT, 1961) 1.
[28] Advocate of the High Court of South Africa; member of the Cape, Johannesburg and London Bars, Bencher of the Middle Temple.
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