The ruling by a high court judge that the Judicial Services Commission should conduct its hearing into Cape Judge President John Hlophe is snubbed by body’s ‘closed preliminary hearing’ strategy, writes Dario Milo in the Sunday Times. The strategy, now being challenged by media groups, is set to harm the judiciary.

Dario Milo writes in the SundayTimes:

Judge John Hlophe has been in the news again . First, the embattled
judge president of the Western Cape High Court reportedly accepted the
nomination of a lobby group for a Constitutional Court post .

Then he wrote to the minister of justice, Jeff Radebe,
indicating that he would return to work after being on special leave
for over a year.

And now the JSC has announced that it has appointed a
three-member sub-committee — comprising Judge Bernard Ngoepe, judge
president of the North Gauteng High Court; Ishmael Semenya SC ; and
Marumo Moerane SC — to conduct a closed “preliminary hearing” to
investigate the facts in relation to the complaint by the judges of the
Constitutional Court against Judge Hlophe, and his counter-complaint
against the Constitutional Court judges.

It is necessary to recount the history of this saga.

In May last year, the judges of the Constitutional Court
released a media statement to the effect that they had referred a
complaint against Judge Hlophe to the JSC. They alleged that Judge
Hlophe had made an “improper attempt” to influence the Constitutional
Court’s then pending judg ment in the appeals brought by President
Jacob Zuma and the Thint group of companies against the National
Prosecuting Authority in connection with the legality of certain of the
NPA’s searches.

In a later, more detailed complaint to the JSC, the
Constitutional Court judges alleged that Judge Hlophe had visited
judges Chris Jafta and Bess Nkabinde in their chambers, and told Judge
Jafta that the Zuma case should be looked at “properly” and that Judge
Jafta was “our last hope”; he allegedly told Judge Nkabinde that he had
a “mandate”; that the privilege issues in the Zuma and Thint matters
should be “decided properly”; and that it was important for the court
to rule in Zuma’s favour because there was no real case against him.

Judge Hlophe made a complaint to the JSC, alleging that
the publication of the media statement by the Constitutional Court
judges had violated his constitutional rights to dignity, privacy and
due process. Judge Hlophe said Judge Langa and the deputy chief
justice, Judge Dikgang Moseneke, had acted with ulterior and political
motives and had abused their offices by manipulating the facts and
exerting pressure on Judge Nkabinde and Judge Jafta; in any event, in
meeting those judges in chambers, he had done nothing improper, he said.

In early July 2008, the JSC resolved that, because there
was a clear factual dispute between the parties, it would conduct an
oral hearing into the complaints. But this hearing was put on hold when
Judge Hlophe brought an urgent application in the South Gauteng High
Court for an order declaring that the judges of the Constitutional
Court had violated his constitutional rights to dignity, privacy,
equality and a fair trial by publishing details of their complaint
against him without giving him a hearing.

The Constitutional Court judges opposed this application,
and affidavits were filed by Judge Hlophe and Judge Langa, replete with
all the gory details of the complaint and counter-complaint.

In September 2008, three of the five judges hearing the
application essentially held that the Constitutional Court judges had
violated Judge Hlophe’s rights by releasing the media statement too
speedily and without sufficient detail. The Constitutional Court judges
succeeded in March this year in overturning this decision before nine
judges of the Supreme Court of Appeal. In what is a legal conundrum,
Judge Hlophe has applied to the Constitutional Court for leave to
appeal this judg ment.

The long-awaited JSC hearing into the complaints was
scheduled for April Fools’ Day this year. But, just a few days before
this, the JSC resolved to hold the hearing behind closed doors, on the
basis that this would protect the dignity of the offices of the chief
justice, the deputy chief justice and the judge president, all of whom
would be giving evidence at the hearing.

This decision by the JSC prompted an urgent application
to the high court by five media groups and others and resulted in a
victory for open justice. Judge Nigel Willis held that the JSC had
fallen foul of its own rules, which require that formal hearings be
open to the public unless good cause is shown otherwise.

There was no justification for holding the hearing in
secret, and indeed, said Judge Willis, “the dignity of the entire bench
will be done a favour by these proceedings being in public”.

However, when the hearings finally began, Judge Hlophe submitted a sick note and then requested a further postponement.

The JSC resolved to continue the hearing in Judge
Hlophe’s absence; evidence was heard from the judges of the
Constitutional Court, and the JSC provided Judge Hlophe with the
transcripts of this evidence for him to make submissions.

But instead of making submissions, Judge Hlophe applied
to the high court for the proceedings of the JSC to be declared
unlawful. A majority of the court ruled that the proceedings ought not
to have taken place in Judge Hlophe’s absence, and that proceedings
should start afresh.

This brings us to the present.

The slightly reconstituted JSC decided this week that
the fresh hearing into the complaints would be done on a preliminary
basis by the sub-committee, and that this hearing would take place
behind closed doors. Presumably, the purpose of such a hearing is to
establish whether a formal hearing ought to be convened.

But this flies in the face of the JSC’s decision last
year that the nature of the complaints was such that a formal hearing
was required.

And such a hearing would, according to the Judge Willis judg ment, have to take place in public.

What is known about this “preliminary hearing” is that it
is due to take place next week, and will involve the commissioners
“interviewing” at least Judge Hlophe, Judge Nkabinde and Judge Jafta,
and probably Judge Langa and Judge Moseneke.

Although we are told by the JSC that recordings of this
hearing will be made, apparently no decision has been made as to
whether these transcripts, or the report of the sub-committee to the
JSC, will be made public.

Assume that the sub-committee concludes that there is no
need for a formal public hearing, and further that it does not publish
the transcripts of the hearing or its report to the JSC: the result
would be that the public will be none the wiser as to why such serious
complaints — the details of which have received extensive publicity for
more than a year — were in the sub-committee’s view without foundation,
and would not be able to interrogate the sub-committee’s
recommendation.

This radical change of approach on the part of the JSC is
startling. With respect, serious questions can be raised about the
legality of the decision .

Even if there is room to argue that it is necessary for
a sub-committee of the JSC to consider the complaints on a preliminary
basis, there can be no justification for such a hearing to take place
behind closed doors.

While it is common in some overseas jurisdictions for a
secret preliminary, fact-finding inquiry to take place to determine
whether there is any substance in complaints about judges, this
procedure is only justifiable if the complaint is confidential, and
there are good reasons for it to be kept secret at the initial stage,
to protect the dignity of the judge concerned.

These reasons are entirely inapposite to the dispute
between the judges of the Constitutional Court and Judge Hlophe.
Through the sworn affidavits of all parties concerned, the public is
acutely aware of what the issues are .

Judge Willis has persuasively ruled that, given the
public interest in the complaints, openness and transparency can only
enhance the reputation and dignity not only of the judges involved, but
the judiciary as a whole.

It would be absurd, indeed unconstitutional, to deprive
the public of access to the process for resolving the disputes, whether
one attaches the label “preliminary” or otherwise to this process.

We have waited long enough, and fought enough battles,
for the right to see the JSC resolve these complaints, which go to the
very heart of our democracy, in the open. It would be a travesty of
justice for the JSC to deprive the public of this right at the eleventh
hour.

* Milo is a partner at Webber
Wentzel. He represented media groups in the high court application to
have the earlier JSC hearing held in the open. This article first appeared in the Sunday Times on 26 July 2009.