The Johannesburg High Court has rejected a Judicial Service
Commission (JSC) request to conduct its hearing on the dispute between
Western Cape Judge- President John Hlophe and the Constitutional Court
judges behind closed doors, writes Franny Rabkin in Business Day.

Judge Nigel Willis’s judgment followed an urgent application by the Freedom of Expression Institute (FXI) and various media houses to set aside the JSC’s decision to keep the hearing under wraps.

The JSC yesterday said it had decided not allow the public to attend because it considered it “imperative to protect the dignity and stature of the office of the c hief j ustice and the d eputy c hief j ustice and that of the j udge-p resident”.

The hearing is to determine two complaints of judicial misconduct made last year. One was made by the judges of the Constitutional Court, that Hlophe sought to improperly influence the outcome of cases then pending before their court involving African National Congress president Jacob Zuma.

The second was Hlophe’s counter-complaint that the way in which the Constitutional Court judges had gone about their complaint infringed his rights and undermined the judiciary.

It said that irrespective of the outcome, a public hearing would be damaging to their offices “and, in turn, that of the entire judiciary”.

The JSC rules allow it to permit the media to attend an inquiry “unless good cause is shown” for their exclusion.

But Willis said the JSC had failed to show good cause and in a case such as this, the constitutional values of transparency and openness required that the hearing be open.

The FXI’s Jane Duncan said she was “elated” and that it was a “resounding victory for open justice and freedom of expression”.

Dario Milo of Webber Wentzel attorneys, who represented Avusa Media, Independent Newspapers and the Mail & Guardian, said the JSC’s inquiry “is one of the most significant inquiries to be heard in SA in recent times”.

“It would be unthinkable for it to be held in secret.”

Click here to read the full report, posted on Business Day's website.