Media win right to cover JSC Hlophe hearing

The Mail & Guardian, together with Avusa, Independent Newspapers and e.tv, has won a significant battle for press freedom and the principle of open democracy.

At 4pm on Wednesday Judge Frans Malan ruled in the South Gauteng High Court that a “preliminary investigation” by the Judicial Service Commission (JSC) into a complaint of misconduct against Western Cape Judge President John Hlophe, and his counter-complaint against the judges of the Constitutional Court, must be opened to the public and the media.

“An order is made ... directing the [JSC] to permit representatives from the media to attend the preliminary hearing/investigation,” said Malan.

He also said the media houses must be permitted to “set up such equipment as is necessary in order to obtain a sound recording” of the hearing for broadcasting purposes.

The judgement (PDF)

Read Judge Frans Malan’s full judgement

The JSC was made responsible for the costs of the case.

The JSC had sought to hold the hearings, which are to be conducted by a three-person subcommittee of the JSC complaints committee, in private, despite the fact that it had already conducted an extensive review of the evidence in public following an earlier court ruling by Judge Nigel Willis.

Advocates Kate Hofmeyer, for the M&G, and Steven Budlender, for e.tv, argued that the decision to exclude the public breached fundamental principles of the Constitution and of administrative justice.

The JSC, supported by counsel for Hlophe, had sought to keep the hearings closed, with the JSC’s advocate Bashir Valley arguing that the media “turn serious debate into pornography” and are “driven by their own agendas”.

Said M&G editor Nic Dawes: “The judgement is yet another ringing endorsement of constitutional role of the media in securing the democratic process from courts which are increasingly developing our jurisprudence around freedom of speech and openness.

“We hope the JSC will now agree that the processes surrounding Judge Hlophe and the Constitutional Court must be conducted with absolute rigour and transparency, and we are very pleased to be able to bring our readers the details of those processes without resorting to leaks and inferences.

“I hope the commission will also clarify whether it shares the views of its counsel on the role of the press in a democratic society.”

The Constitutional Court judges alleged last year that Hlophe made an inappropriate approach regarding a judgement on Jacob Zuma, before he became the country’s president.

Hlophe lodged a counter-complaint that they had infringed his dignity by making the complaint public.

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