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28 Jul 2009 16:14
Lawyers for various media on Tuesday challenged the Judicial Service Commission’s (JSC) decision to hold a closed preliminary investigation into a complaint against Cape Judge President John Hlophe.
At an urgent application in the South Gauteng High Court, a lawyer for the Mail & Guardian, Kate Hofmeyr, submitted that there were no compelling grounds to proceed as the matter was already in the public domain.
The same court ruled last year, during the first round of hearings into a complaint against Hlophe laid by Constitutional Court judges, that the matter should be opened to the public in the interests of transparency.
The JSC had already decided there was a prima facie case to investigate.
However, since the JSC had reconstituted earlier this year it decided to start afresh on whether it should investigate.
Hofmeyr said wiping out a previous decision by the JSC was beyond the power of the commission’s new members.
Several judges had already given evidence in public during a hearing in April and details of the complaint were widely known and had attracted keen public interest.
In previous court applications related to the case, no one had asked for the proceedings to be held in camera or for the record to be sealed.
“I submit there is no validation for the JSC to have determined to keep the investigation closed,” Hofmeyr said.
It would instil in the public a renewed sense of confidence in the judiciary if the preliminary investigation was opened.
e.tv, which wants to broadcast sound of the proceedings, submitted that the JSC’s rules were silent on whether the investigation should be made public or closed.
The broadcaster’s lawyer, Steven Budlender, accepted that not every complaint to the JSC should be made public, but said this matter was different.
“We have seen five-sixths of the movie, we have heard the evidence of five judges ... and we have not heard in public the evidence of the other side,” submitted Budlender.
The JSC said the hearing should be closed because without the glare of publicity, parties would be able to speak freely.
The objectives of the investigation would be defeated if it were held in public.
Budlender argued, however, that the judges were accustomed to the glare of publicity, as it was part of their everyday work to have their every word reported.
There had already been public testimony by the judges, and Hlophe himself had said he would participate in the preliminary investigation, no matter which way the court ruled.
Budlender said the dignity of the people involved would be protected by having a public investigation.
Hlophe was opposing the media houses’ court bid.
His lawyer, advocate Barnabas Xulu, said he was doing so on the grounds it would violate Hlophe’s rights.
The JSC was also opposing the application by Avusa, the Independent Group, the M&G and the Freedom of Expression Institute, which sought to force the commission to push ahead with a formal, public inquiry against the judge.
The newspaper houses had asked the court to set aside the JSC’s decision to hold a preliminary investigation before deciding whether to proceed with a full inquiry into whether Hlophe tried to sway Constitutional Court judgements relating to President Jacob Zuma.
The media houses filed an urgent application on Friday, two days after the JSC set up a three-man subcommittee to hold closed-door hearings into the case.
The subcommittee was asked to recommend to the full commission by August 15 whether to press ahead with a formal investigation.—Sapa
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