The legal profession is all aflutter. Ahead of the Judicial Service Commission (JSC) hearing on the historic complaint by the Constitutional Court against Western Cape Judge President John Hlophe, the tension is mounting. As noted in this column before, the stakes are very high on all sides.
But the immediate question is whether the hearing will be open to the public. Hlophe Mark I — the inquiry into whether he had obtained prior permission from then justice minister, Dullah Omar, in respect of his retainer from Oasis — was essentially held in secret. A terse statement emerged at the end of the deliberations announcing that the special JSC subcommittee had been unable to conclude that Judge Hlophe had not received oral permission.
There was no reasoning attached and, because the main hearing in spring 2006 was conducted in private, it proved hard for the JSC to sustain the credibility of its process. The transcript of the proceedings had to be prised out of the JSC through an access-to-information request made by the University of Cape Town, with other records, one of which showed that between 1994 and 1999 Omar had considered and assented to no fewer than 48 written requests for permission to take up financial compensation beyond the judicial salary.
This time, therefore, the JSC’s own procedural integrity is as much in the spotlight as Judge Hlophe or the Constitutional Court. Given the background, the arguments for an open hearing are surely overwhelming. But what about the press and the broadcast media in particular?
This is not such a straightforward matter. The Freedom of Expression Institute’s submission, along with others, makes the lazy assumption that once you accept that a hearing should be open, then it will automatically follow that the broadcast media in all their forms should be permitted to cover the proceedings.
But, at the risk of sounding a little pompous, the solemnity of the occasion must not be prejudiced. These are grave matters at hand and the hearing must balance the need for open justice with the importance of respecting the procedural integrity of the hearing.
It is important to distinguish between television and radio. The problem with TV cameras and their supporting lights in particular is that they are especially obtrusive. They are likely to add heat — figuratively as well as literally — rather than light, and what light is cast may well be outweighed by the distraction and the additional, and unwarranted, pressure they put on witnesses.
The Truth and Reconciliation Commission proceedings were televised for good reason. While the cameras no doubt added to the stress on the participants, it enabled South Africans to see as well as hear the details of the gross human rights violations that were perpetrated.
In the case of Hansie Cronjé, it was necessary for South Africa to see Cronjé give evidence — in a sense to see the sweat roll down his temples as he was compelled to account for his acts of greed and manipulation. The thinking behind Idasa’s challenge to the King Commission was that it was more about corruption and public abuse of power than cricket and it would reinforce the message that ”corruption does not pay”. I had not accounted for South Africans’ apparent inexhaustible capacity for forgiveness; bizarrely, Cronjé was able to resurrect his standing, at least in some quarters, to the point where he is now widely regarded as a flawed hero, rather than an avaricious traitor to the cause of cricket and social transformation.
But back to the Hlophe hearing. While it would no doubt make for good theatre to be able to watch one of the country’s finest cross-examiners, Wim Trengove SC, apply his forensic skills to the judge president, one suspects that the probative value of the exchange will be eclipsed by the impact that the TV footage will have on public perceptions of the hearing — and not for the good.
This is already a highly divisive issue. It is one thing to believe that seeing a disgraced former cricket captain emit sweat and even tears as he accounts for his wrongdoing would be in the public interest, but quite another to think that members of our judiciary should be subjected to the additional pressure of televised coverage. Being able to listen to the leading and cross-examination of witnesses on radio is more than enough.
Part two: Judicial salariat
Nice work if you can get permission
Talking of judges, to my great astonishment the ministry of justice has done something it has never done before: it has overturned its initial ”deemed refusal” to provide records of all applications by members of the judiciary for permission to receive financial compensation beyond their judicial salary.
This is good news in itself; perhaps it marks the breaking of a new dawn of openness in the ministry and a new commitment to complying with its own legislation, the Promotion of Access to Information Act.
It is also good news in terms of what it tells us about the judiciary. I feared that the records would reveal a range of potential conflicts of interest. It seems that Judge Hlophe was not only unique in making an oral, as opposed to a written, request for permission, but was a rare specimen in having acquired a corporate interest (his retainer with Oasis).
Of the 336 requests for permission made by 79 active and discharged judges since 1994, the great majority are requests for permission to sit as private arbitrators and only a small handful reveal any corporate directorships.
It seems that rumours of the growth of the arbitration business are well-founded. Companies such as Woolworths and Sanlam increasingly prefer to appoint private arbitrators to resolve disputes, rather than going through the civil courts. Discharged Judges G Freidman and C Plewman top the table with 30 arbitrations apiece.
Nice work if you can get it.