The Judicial Service Commission (JSC) has been warned that proceeding with their proposed ‘preliminary investigation†into Western Cape Judge President John Hlophe and the judges of the Constitutional Court behind closed doors is in breach of a court order issued in April by the South Gauteng High court.
This warning is contained in a letter sent to the JSC from lawyers representing the Mail & Guardian, Avusa and Independent Newspapers, after reports that the statutory body intended excluding the media from a hearing set to begin on Wednesday.
Business Bay on Tuesday reported that the JSC intended to hold a ‘preliminary investigation†hearing into the Hlophe saga.
In April, Judge Nigel Willis of the South Gauteng High Court ruled — after an application brought by the same media houses and the Freedom of Expression Institute (FXI) — that hearings into the case involving Hlophe and 13 judges of the Constitutional Court was of immense public interest and ordered that the JSC open it to the public and the media.
The letter, written by Dario Milo of the attorney’s firm Webber Wentzel, reminds the JSC of the judgement by Willis and adds that holding the hearing in secret would also fly in the face of the country’s constitutional values on media freedom.
‘It is our client’s respectful submission that there can be no justifiable basis upon which to hold any hearing, preliminary or otherwise into the complaint and counter-complaint in secret. Such an approach not only undermines the constitutional values of openness and transparency, the constitutional principle of open justice and the constitutional rights of access to information and freedom of expression but also falls foul of both the spirit and letter of Willis J’s judgement, which is, of course binding on the JSC,†said Milo.
Hlophe has been accused of attempting to ‘improperly influence†judges Bess Nkabinde and Chris Jafta in a case involving President Jacob Zuma at the Constitutional Court.
Hlophe also laid a counter-complaint against 13 judges of the Constitutional court including Chief Justice Pius Langa and managed to convince the South Gauteng High Court to find in his favour shortly after his counter-complaint to the JSC.
In a split decision along racial lines, the South Gauteng bench found that Hlophe’s rights had been infringed, a decision which was later overturned by a unanimous decision of the Supreme Court of Appeal.
Hlophe also later successfully petitioned the same court to find that his rights to a fair hearing had been infringed when the JSC held a hearing in April in his absence.
New Minister of Justice and Constitutional Development Jeff Radebe and the JSC resolved not to appeal this latest judgement.
The letter then goes on to request that the commission confirm that a decision to hold the Hlophe hearing behind closed doors had been taken and to also give reasons for the secret hearing.
It also requests that the JSC provide a date and venue for the hearing plus a confirmation that the public and the media will be allowed to attend such a hearing.
JSC spokesperson Marumo Moerane told the M&G that he was not aware of the letter while Judge President Lex Mpati, who chairs the complaints committee of the JSC, said the hearing had since been cancelled.