Brief Summary

Judicial Review — Administrative action — Public access to hearings — Applicants sought to set aside the Judicial Service Commission's decision to hold a hearing regarding complaints against Judge President Hlophe behind closed doors, arguing for public and media access. The JSC contended that the decision was necessary to protect the dignity of judicial officers. The court held that the decision to exclude the public and media was unconstitutional, emphasizing the importance of transparency in matters of significant public interest.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were several urgent applications for judicial review brought in the South Gauteng High Court, Johannesburg. The applications sought to set aside a decision of the Judicial Service Commission (JSC) taken on 28 March 2009 and communicated to some applicants on 30 March 2009, namely that a pending JSC hearing concerning complaints between the Justices of the Constitutional Court and Judge President John Hlophe would be held in camera (closed to the public and the media).

The applicants comprised major South African media entities and civil society organisations, including eTV (Pty) Ltd and others. The first respondent was the JSC. The second respondent was the acting chairperson of the hearing, Judge President Lex Mpati (Supreme Court of Appeal). The third respondent was Judge President Hlophe. The remaining respondents were the Justices of the Constitutional Court, who were the complainants in the underlying matter.

Procedurally, multiple urgent applications were launched and, by agreement, were heard together and determined by a single judgment. The Centre for Applied Legal Studies applied to be joined as amicus curiae; the application was unopposed and it was joined, supporting the relief on the basis that it represented the general public interest rather than the media’s institutional interests.

The general subject-matter of the dispute was whether, under the JSC’s governing rules and constitutional values of openness and transparency, the JSC was entitled to exclude the public and media from the disciplinary-type inquiry, and whether the reasons advanced by the JSC amounted to “good cause” for closure.

2. Material Facts

A core, undisputed fact was that the JSC had decided that the hearing into the complaints between the Constitutional Court Justices and Judge President Hlophe would not be open to the public or the media. This decision was taken on 28 March 2009 and publicised in a media statement issued the same day. The urgency was undisputed: the hearing was scheduled to begin on 1 April 2009, prompting the applicants to seek immediate relief.

It was also common cause that, as far back as 14 July 2008, the JSC had invited submissions from interested parties on whether the pending hearing should be public and what media coverage should be permitted. The record before the court included extensive written submissions advocating an open hearing. The JSC stated in its media statement that it had considered 21 submissions.

The JSC’s stated reasons for closing the hearing (as contained in its media statement) were material to the court’s decision. In summary, the JSC asserted that it had weighed public interest and transparency against the nature of allegations “concerning the motives and alleged impropriety of senior members of the judiciary”, and concluded that good cause existed to exclude the public and media. It further stated it was “imperative” to protect the dignity and stature of the offices of the Chief Justice, Deputy Chief Justice, and the Judge President (Western Cape), and that a public hearing would damage these offices and, in turn, the entire judiciary, regardless of the outcome. It indicated that reasons would be furnished publicly at the end of the inquiry.

As to the parties’ positions, the second respondent took no stance on whether the hearing should be open. Judge President Hlophe indicated he would abide the court’s decision. The Justices of the Constitutional Court did not oppose the application, and the court treated them as content to abide the outcome. The JSC opposed the applications.

The application by eTV included a specific request connected to obtaining sound recordings of the proceedings for broadcasting purposes. The judgment records that the electronic media did not seek permission to broadcast televised images of witnesses or proceedings, and that the court shared the Constitutional Court’s reservations about television footage as a potentially distortive medium.

3. Legal Issues

The central legal questions were whether the JSC’s decision to close the hearing was reviewable and should be set aside, and in particular whether the JSC had demonstrated “good cause” for excluding the public and the media from the hearing in terms of the JSC’s own governing rule.

Although the applications were framed with reference to the Promotion of Administrative Justice Act 3 of 2000 (PAJA)—and specifically the ground that administrative action may be reviewed if it is “otherwise unconstitutional or unlawful” (the judgment focused on section 6(2)(i))—the court treated the determinative issue as the application of the JSC’s own standard in its rules: that inquiries should be open unless good cause is shown for exclusion.

The dispute therefore primarily concerned the application of a legal standard (“good cause”) to the facts, combined with an evaluative assessment of whether the reasons advanced by the JSC were sufficient, objectively justifiable, and not insubstantial. The court also addressed interpretive questions regarding the meaning and effect of the JSC’s rule (clause 5.6) and whether “good cause” was to be assessed subjectively or objectively (the court recorded that the objective character of the test was not disputed).

4. Court’s Reasoning

The court located the dispute within a constitutional culture favouring openness, noting that the Constitution’s spirit must infuse adjudication and statutory interpretation, with specific reference to section 39. The court also linked the principle of openness to freedom of expression in section 16, including the public’s interest in receiving information and ideas about matters of substantial public importance.

A significant part of the reasoning turned on clause 5.6 of the JSC’s rules governing complaints and inquiries under section 177 of the Constitution. That clause provided that the JSC is entitled to permit the media and public to attend any inquiry “unless good cause is shown for their exclusion.” The court understood the JSC’s own media statement to reflect that it had adopted this test, because it expressly stated that the Commission “considered that good cause exists” for exclusion after weighing transparency and public interest.

From this, the court concluded that the case did not call for the standard review approaches often associated with PAJA and constitutional administrative law deference, such as the reasonableness framework referenced in Sidumo or Bato Star. The court reasoned that the JSC had set a specific standard for itself—a default of openness displaced only by “good cause”—and that it should be held to that standard.

The court treated “good cause” as requiring objective justification, not merely the decision-maker’s subjective belief. It used the distinction between subjective and objective tests to explain that it was not enough for the JSC to assert that good cause existed; the assertion had to withstand objective scrutiny. The court also stressed that the party asserting good cause bore the burden of demonstrating it, describing this as a long-standing legal principle relating to proof and justification.

Applying that approach to the JSC’s stated reasons, the court considered the explanation offered by the JSC to be vague, laconic, and insufficiently comprehensive. While acknowledging that protecting the dignity of the judiciary is an important consideration, the court held that the JSC had not adequately explained why closing the hearing would protect dignity in this instance. The court accepted the applicants’ submissions that, rather than diminishing dignity, openness and transparency in a matter of this kind would tend to enhance the stature of the judiciary by allowing public scrutiny and informed understanding.

The court further reasoned that a closed hearing risked generating public speculation (“bespiegelinge”), suspicion, and an erosion of confidence in the judiciary regardless of the eventual outcome. The court treated the “extraordinary and unprecedented” nature of the complaints as a factor supporting openness: precisely because the matter involved senior judicial officers and serious allegations, the court considered that public access would help ensure that the public had an informed sense of what occurred and why the resulting decision was fair and appropriate.

The judgment also referred to a broader legal constraint on discretionary decision-making: where a discretion is exercised, the reasons must not be insubstantial or “flimsy”. In the court’s view, the JSC’s explanation did not meet this requirement.

The court was careful to confine its conclusion. It stated that it was not making a finding of impropriety, bad faith, or irrationality on the JSC’s part, and it accepted that the JSC sought to act fairly and had applied its mind. The defect identified was narrower: the JSC had failed to establish good cause for excluding the public and media, which was the standard applicable to the decision.

Regarding the practical modalities of openness, the court aimed to be non-intrusive and crafted relief to permit sound recording while preserving the chairperson’s ordinary authority to manage proceedings and address unforeseen contingencies, including attendance capacity issues. It also noted reservations about televising proceedings, consistent with the Constitutional Court’s stance in SABC Ltd v NDPP, although the case before it concerned sound recording rather than televised images.

On costs, the court considered that the matter raised issues of considerable public importance and that it was inappropriate to penalise the JSC with a costs order. It therefore made no costs order, remaining silent on costs.

5. Outcome and Relief

The court set aside the JSC’s decision of 28 March 2009 that the hearing would not be open to the public or the media, and directed that the hearing be open to the public and the media.

It further ordered that the chairperson of the hearing (the second respondent) permit the applicants to set up equipment necessary to obtain a sound recording of the hearing for broadcasting, whether live or delayed, including use in news and/or current affairs programmes.

Finally, the court confirmed that the chairperson retained the ordinary powers to make appropriate rulings during the hearing upon good cause shown.

The court made no order as to costs.

Cases Cited

S v Vermaas; S v Du Plessis 1995 (3) SA 292 (CC); S v Mhlungu and Others 1995 (3) SA 867 (CC); Zantsi v Council of State Ciskei and Others 1995 (4) SA 615 (CC); Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC); Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004] ZACC 15; 2004 (4) SA 490 (CC); South African Broadcasting Corporation Limited v National Director of Public Prosecutions and Others [2006] ZACC 15; 2007 (1) SA 523 (CC); Dotcom Trading 121 (Pty) Ltd t/a Live Africa Network News v King NO and Others 2000 (4) SA 973 (C); R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26; [2001] 3 All ER 433 (HL); Aktiebolaget Hässle and Another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA); Scott v Scott [1913] AC 417 (HL); Duncan v Minister of Law and Order 1986 (2) SA 895 (A); Minister of Law and Order v Hurley and Others 1986 (3) SA 568 (A); Minister of Law and Order and Others v Pavlicevic 1989 (3) SA 679 (A); Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T); Standard Bank of South Africa Ltd v El-Naddaf and Another 1994 (4) SA 779 (W); Pillay v Krishna and Another 1946 AD 946; Tregea and Another v Godart and Another 1939 AD 16; Ex parte Neethling and Others 1951 (4) SA 331 (A); Beyers v Pretoria Balieraad 1966 (2) SA 593 (A); Vassen v Law Society of the Cape of Good Hope [1998] ZASCA 47; 1998 (4) SA 532 (SCA); Tejani and Others v Official Receiver [1963] 1 All ER 429 (PC).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 16, 39, and reference to section 177(1)(A) in the JSC rules context); Promotion of Administrative Justice Act 3 of 2000 (section 6(2)(i) as discussed); Criminal Procedure Act 51 of 1977 (section 40(1)(b)); Internal Security Act 74 of 1982 (section 29(1), referenced as repealed).

Rules of Court Cited

Clause 5.6 of the JSC rules governing complaints and inquiries in terms of section 177(1)(A) of the Constitution (as described in the judgment); Uniform Rules of Court, Rule 31(2)(b) (referenced through authority concerning “good cause”).

Held

The court held that the applicable standard was that the JSC inquiry should be open to the public and media unless good cause was shown for their exclusion, and that this “good cause” requirement was to be assessed objectively. On the reasons advanced by the JSC in its media statement—principally the asserted need to protect the dignity and stature of senior judicial offices—the court held that the JSC had not shown good cause to exclude the public and the media.

On that basis, the court reviewed and set aside the decision to conduct the hearing in camera, directed that the hearing be public, and granted limited facilitative relief to allow sound recording for broadcast purposes, while preserving the chairperson’s ordinary authority to regulate proceedings on good cause shown. The court made no costs order.

LEGAL PRINCIPLES

The judgment applied the principle that openness and transparency are foundational to the administration of justice, particularly where proceedings concern matters of significant public interest and the conduct of senior judicial officers. While closure is not per se unconstitutional, departure from openness requires exceptional justification consistent with the governing rule and constitutional values.

Where a decision-maker has adopted a rule providing that proceedings are open unless “good cause” is shown for exclusion, that formulation establishes a presumptive default of openness and places an onus on the party seeking closure to demonstrate adequate justification. The judgment treated “good cause” as requiring an objective basis capable of scrutiny, not merely a conclusory assertion by the decision-maker.

The judgment further applied the principle that the exercise of a discretion must not rest on insubstantial or flimsy reasons. Even where an objective is legitimate (such as preserving judicial dignity), the decision-maker must provide a sufficiently reasoned explanation demonstrating why the measure adopted (here, closure) is justified on the particular facts.

Finally, the judgment reflected the approach that relief concerning access and media coverage should be crafted so as to support openness while remaining non-intrusive and preserving the presiding officer’s capacity to manage proceedings and make further rulings upon good cause shown.

eTV (Pty) Ltd and Others v Judicial Service Commission and Others (13712/09,13647/09) [2009] ZAGPJHC 12; 2010 (1) SA 537 (GSJ) (31 March 2009)