Court opens door to Hlophe hearing

The Mail & Guardian will on Wednesday be at the Hilton hotel in Sandton to report on what were to have been closed hearings of the Judicial Services Commission. The JSC is due to look into allegations of misconduct levelled against the Judge President of the Cape, John Hlophe, by the judges of the Constitutional Court.

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 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.

Judge Nigel Willis of the Johannesburg High Court ruled on Tuesday night that a decision by the JSC to bar the media and the public from the hearings had not satisfied the commission’s own rules, in terms of which it must show good cause to exclude the media.

His ruling followed an urgent application from the M&G, Avusa, Independent News and Media, and the Freedom of Expression Institute.

Willis dismissed the commission’s argument that opening the hearings could harm the dignity of the office of the chief justice, deputy chief justice, and judge president, saying the issues surrounding Hlophe were of intense public interest, and suggesting that conducting the hearings in secret would likely do more damage to confidence in the judiciary than an open process.

Submissions by the media arguing that principles of open justice required that the hearings be public were “impressive” he added.

“We are really delighted.
The Hlophe saga raises issues that go to heart of our democratic order—the independence of the judiciary and the standards by which judges are held to account for their conduct”, said M&G associate deputy editor Nic Dawes.

“We believe that carrying out this process in secret would have served only to undermine its credibility and we are very pleased the court agreed. It is another important precedent in the creation of a common law the embodies constitutional principles of open democracy and free speech”.

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