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Sello S Alcock, Sapa-AFP31 Mar 2009 12:26
The Judicial Service Commission (JSC) has barred the media and the public from its high-powered hearing into the feud between 13 judges of the Constitutional Court and Western Cape Judge President John Hlophe to protect the “dignity and stature” of the high office occupied by some of the feuding parties, it said in a statement.
“While the respective extraordinary and unprecedented complaints are against individual judges, the JSC considers it imperative to protect the dignity and stature of the office of the Chief Justice and Deputy Chief Justice and that of the Judge President,” said the media statement.
The commission, which says it has considered a total of 21 submissions, declined to give specific details of those particular submissions.
“The commission had regard to the submissions and the kind of allegations that had been made concerning the motives and alleged impropriety of senior members of the judiciary.
“The commission weighed the public interest and the need for transparency of the proceedings and considered that good cause exists for the exclusion of the public and the media from the hearing,” the JSC said.
The Constitutional Court judges laid a complaint of judicial misconduct against Hlophe with the JSC on May 30 2008.
They said Hlophe allegedly made what they regarded as inappropriate approaches to judges about a pending judgement on African National Congress president Jacob Zuma, who was facing graft charges related to a government arms deal.
Hlophe laid a counter-complaint against the judges on June 10 2008.
He launched an application in the High Court in Johannesburg for an order declaring, in essence, that the Constitutional Court had violated certain of his constitutional rights by laying the complaint and by issuing a media release stating that the complaint had been laid.
But on Tuesday the Supreme Court of Appeal (SCA) upheld an appeal by the judges of the Constitutional Court and replaced the order of the high court with an order dismissing Hlophe’s application.
In Tuesday’s unanimous judgement by a panel of nine judges of the SCA, it held that the justices of the Constitutional Court did not act unlawfully when they made the complaint to the JSC against Hlophe without first affording him an opportunity to be heard.
The SCA also held that Constitutional Court judges did not act unlawfully by issuing a media statement announcing that they had made the complaint.
Earlier, the high court had found that although the justices were not performing judicial functions as a court when they made their decision they were nonetheless obliged to afford Hlophe a hearing before they did so.
The SCA agreed with the finding by the high court that the justices had not made the decision in the performance of the judicial function of the court.
However, it went on to find that there was no requirement in law for a hearing to be afforded before they arrived at their decision to lay a complaint and issue a media statement.
The SCA also held that, once they had decided to make the complaint, the judges were not obliged by law to keep that a secret.
It held that if the assertion against Hlophe were true—a matter the SCA was not called upon to decide—it was clearly to the public benefit that it should be known and its publication would not be unlawful.
“The fact that the respondent is a judge does not give him special rights or special protection.
“They, too, like government, pressure groups, or other individuals, may not interfere in fact, or attempt to interfere, with the way in which a Judge conducts his or her case and makes his or her decision,” the judgement read.
The SCA pointed out that it would be distressing for a judge to learn in the media that he or she had been accused of misconduct.
The judgement held that the remedies available to a judge in such a case such were to insist upon an speedy disposal of the complaint to clear his or her name and in appropriate cases an action for damages for defamation.
Media bid to have JSC hearings open
Meanwhile, the JSC confirmed that various media houses are taking it to court to force it to hold open hearings on the complaint against Hlophe.
Spokesperson advocate Marumo Moerane said: “It is an application to set aside our decision to exclude the public.”
The hearings are due to begin on Wednesday and will focus on the complaint by the judges of the Constitutional Court.
Marumo said the reasons for the closed hearings will be presented in the court papers to be submitted when the application begins at 5pm in the High Court in Johannesburg.
The Freedom of Expression Institute, the Democratic Alliance and the African Christian Democratic Party are among groups who want to hearings to be open.
Read more from Sello S Alcock
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