Mail and Guardian Limited and Others v The Judicial Service Commission and Other; etv (Pty) Ltd and Another v The Judicial Service Commission and Others unreported (ZASGHC) Case No 09/30894, 29 July 2009

Yesterday, in answer to two urgent applications brought by members of the print and broadcasting media against the Judicial Service Commission (JSC), Malan J, writing for the South Gauteng High Court, delivered a combined judgment setting aside the decision of the JSC to conduct a closed preliminary investigation, rather than an inquiry open to the public, into the complaints lodged by the Constitutional Court Justices against Judge President of the Western Cape High Court, John Hlophe.

Malan J, in granting the public access to the JSC's forthcoming preliminary investigation, further directed that the media be granted access to set up and broadcast sound recordings from these investigations. The rather complicated chronology of the JSC hearings and court decisions, thus far, which form the facts of the urgent applications, and the reasoning of Malan J, were outlined by the Court as follows.

In July of 2008, ‘the JSC effectively determined that there was a prima facie case of incapacity, incompetence or misconduct against the Judge President [Hlophe]'. After some delay, hearings were set down for April 1 to 8 2009. The JSC had invited various interested parties to make representations to it as to whether or not the hearings should be conducted in public. On 28 March 2009 the JSC decided, contrary to etv's wishes to conduct public hearings, that the hearings would be held in private.

However, etv took this decision on review and the decision was set aside by Willis J. Open hearings went ahead and five justices of the Constitutional Court testified. Judge President Hlophe however was not present due to illness. He thereafter took these April 2009 hearings on review and the ‘proceedings of the JSC of both 7 and 8 April [were held to have been] unreasonable and unlawful... [and were thus] set aside' by Tsoka J ("the Tsoka decision"), with an auxiliary order for proceedings of the JSC to ‘commence de novo on a date suitable to both parties'.

Abiding by the Tsoka decision, the JSC, in July of 2009, in terms of Rule 4.1 of the Rules Governing Complaints and Enquiries, appointed a sub-committee consisting of Ngoepe JP (convenor of the sub-committee), Moerane SC and Semenya SC in order to investigate the complaints made by the Constitutional Court justices against Judge President Hlophe. 

On 22 July 2009, the JSC took a further decision that the interviews to be held by the sub-committee with Langa CJ, Moseneke DCJ, Hlophe JP, Nkabinde J and Jafta JA would take place ‘behind closed doors'.  It is against this decision that the applicants in these applications sought review, both in terms of  the Promotion of Administrative Justice Act ("PAJA") and legality review in terms of s1(c) of the Constitution.

Malan J held that the decision of the JSC constituted administrative action for the purposes of a PAJA review. He went on to reject the argument that the JSC's decision was functus offico, in other words, that a decision, once made, cannot be revoked without the specific power to revoke it also being given to the authority. Malan J held, in this respect, that the JSC retained a discretion in terms of s178 (6) of the Constitution to ‘determine its own procedure' and that this included an implicit power to ‘vary earlier decisions on the procedure to be followed provided only that its decision [was]... supported by the majority of members'.

However, importantly, Malan J went on to hold that ‘[i]t [did] not follow...that because no final decision [had] been reached...that the JSC... [could] disregard rules of procedural fairness in [exercising their discretion in] varying or amending earlier decisions'. Malan J held that while rule 4.3, in terms of which the decision was made, was ‘silent on the question whether a preliminary investigation should be open to the public', thus again giving the JSC discretion in the matter, rule 5.6 provided that ‘the JSC shall be entitled to permit the media and public...to attend an [i]nquiry unless good cause [was] shown for their exclusion'.

In this regard, Malan J went on to reiterate that

‘[o]ur constitutional scheme embrace[d] a preference for openness in the conduct of public affairs [and that]...the public [was]...entitled to know how the judiciary function[ed] and that it function[ed] consistently with the principles of independence, fairness and impartiality [and further that]...[t]he media [was] the watchdog of society keeping the public informed of matters of public interest to enable them to make informed choices about government and democracy'.

Malan J held that the above right tied in with the emphasis in the Willis judgment concerning ‘the media's right to access to the formal [i]quiry'. Malan J held further that the Tsoka decision ‘did not affect any of the rights enjoyed by the media or the public in any resumed hearing'. Malan J concluded, therefore, that while the JSC had ‘the power to embark on a new preliminary hearing...this power d[id] not absolve them from acting in accordance with the Constitution'. Malan J added that ‘[o]rgans of state exercising discretionary powers are required to do so with appreciation of the impact of their decisions on the constitutional rights of those affected' and that in terms of the decision of the JSC ‘[n]o such appreciation [was] apparent'. 

Malan J held, in response to the JSC's counter arguments that though there may be room for considerations of ‘the need for caution and confidentiality during any preliminary investigation into a judge's conduct' the present case did not involve such considerations. This was due to the fact that the JSC had already determined a prima facie case against Judge President Hlophe; ‘the complaints were not frivolous and ha[d] indeed been made by the Justices of the Constitutional Court'; some of the justices had ‘already testified in open public hearings'; and, finally, that ‘[a]n order made by Willis J [had already] ensured the openness of the hearings and access to the media and the public to them'.

In conclusion Malan J held that ‘[he] fail[ed] to see how the purpose and objective of the...investigation would be defeated by an open investigation.' Malan J also found no justification for the limitation of the media's s16 (1) constitutional right. Thus, Malan J ordered that the decision of the JSC be set aside and replaced with a decision that the preliminary investigation be held in public and further that the media be allowed to set up and broadcast sound recordings from the investigation. The JSC was ordered to pay the costs of both urgent applications.

Statement issued by Kathryn Serafino-Dooley of the Centre for Constitutional Rights, July 30 2009

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