Mail and Guardian Limited and Others v Judicial Service Commission and Others (09/30894) [2009] ZAGPJHC 29; [2010] 1 All SA 148 (GSJ); 2010 (6) BCLR 615 (GSJ) (29 July 2009)

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[2009] ZAGPJHC 29
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Mail and Guardian Limited and Others v Judicial Service Commission and Others (09/30894) [2009] ZAGPJHC 29; [2010] 1 All SA 148 (GSJ); 2010 (6) BCLR 615 (GSJ) (29 July 2009)

In
the South Gauteng High Court
Johannesburg
Case
09/30894
Mail
and Guardian Limited First Applicant
Avusa
Limited Second Applicant
Independent
Newspapers (Pty) Ltd Third Applicant
Freedom
of Expression Institute Fourth Applicant
versus
The
Judicial Service Commission First Respondent
and Third
to Sixteenth Respondents
The
Centre for Applied Legal Studies Amicus Intervening
etv(Pty)
Ltd First Applicant
esatTV(Pty)
Ltd Second Applicant
versus
The
Judicial Service Commission First Respondent
and Third
to Sixteenth Respondents
Judgment
MALAN,
J
[1] These are two urgent
applications in which the applicants pray for substantially the same
relief. The application by the Mail
and Guardian is for an order that
the decision of the Judiciai Service Commission taken on or about 20
July 2009 that a subcommittee
be appointed to convene a preliminary
investigation into a complaint that has been laid by the fourth to
sixteenth respondents
('the Constitutional Court Justices' or
'Justices') against the third respondent, Judge President Hlophe
('the Judge President
1
),
and the latter's counter-complaint against the Constitutional Court
justices be reviewed and set aside. In the alternative, an
order
setting aside the said decision in so far as it denies the public and
the media access to the preliminary investigation is
requested.
[2] The application by
etv (Pty) Ltd and esat (Pty) Ltd is directed at an order somewhat
narrower than the order sought in the Mail
and Guardian application
and seeks the review and setting aside the decision of the JSC that
the preliminary investigation will
not be open to the public or the
media and directing the JSC to permit representatives from the media
to attend the preliminary
investigation and to permit etv and esat to
set up equipment necessary to obtain a sound recording of the
preliminary investigation
for the purposes of broadcasting it in the
form of live or delayed broadcasts and broadcasts on news and or
current affairs programmes.
[3] In addition, CALS
applied to intervene as amicus curiae in these proceedings. Counsel
for the JSC objected to the application
inter alia on the basis that
some of the factual allegations made were in dispute. Since the
matter was urgent I allowed CALS to
address me on matters of law
only.
[4] Counsel acting on
behalf of the Justices submitted a letter to the court in which it
was indicated that they abided the decision
of the court. They added,
in response to paragraph 13 of the affidavit deposed to by the
deponent on behalf of the JSC, that 'none
of the parties have
objected to the proposed procedure' as follows:
This
is a reference to the decision to appoint a sub-committee to conduct
a preliminary investigation. While it is true that the
Judges have
not objected to the proposed procedure, this is because the Judges
were unaware that any decision was being contemplated
by the JSC and
were not heard on the issue.
On
27 July 2009, the Judges sent a letter to Ngoepe JP (as Head of the
Sub-Committee) raising various questions concerning both
substantive
and procedural matters relating to the preliminary investigation to
enable them to make an informed decision about
their rights and
duties. They have not yet received a repiy to their queries.'
Since the hearing a
letter by Judge President Ngoepe has been delivered to me by the
State Attorney responding to the last paragraph
of the letter by the
Justices and showing that he indeed responded to it as soon as
possible. He requested that the letter be forwarded
to ail the
parties concerned.
[5] The Judge President
also filed an answering affidavit in which he stated that he abided
the decision of this court. He continued:
'4
Let me state at the outset that 1 have nothing to hide from the
public of South Africa relating to the allegations made against
me by
the Justices of the Constitutional Court. My conscience is clear
about these allegations, and I will appear before a properly

constituted Judicial Service Commission ... when I am called to do
so....
5
In
my view, the duty that I owe the public is to appear before the JSC
and to answer any questions relating to the allegations made
against
me by the Justices of the Constitutional Court. It is a duty that the
public is entitled to demand from me if public confidence
in me as a
Judge is to continue. ! will accordingly meet with the JSC to answer
questions about the allegations against me, whether
the meetings are
open or whether they are closed. However, my duty does not extend to
appearing before the media to answer allegations
of wrongdoing, in my
experience and view, the media coverage of these allegations against
me has been unfair and most disparaging.'...
[See also paragraph 30].
[6] These applications
all stem from the now public dispute between the Judge President and
the Constitutional Court Justices and
the complaints made by them
against each other and the subsequent litigation flowing from them, i
need not dwelt on these issues.
The principal decision under attack
was made on 22 July 2009 and reads as follows:
The
decisions of the Complaints Committee of the Judicial Service
Commission (the Commission) are the following;
1. The
Commission decided, following the ruling of the South Gauteng High
Court, that that the complaints to be considered cfe
novo.
2. The
Commission decided, in terms of Rule 3.1 of the Rules Governing
Complaints and Enquiries, that the allegations made in the
Complaint
and Counter Complaint, if established, would amount to gross
misconduct.
3. In
terms of Rule 4.1 the Commission appointed a sub-committee consisting
of Ngoepe, JP, who will be convenor of the sub-committee,
Moerane,
SC, and Semenya, SC.
3.1
The sub-committee will investigate the complaints by conducting
interviews behind closed doors, with Langa CJ, Moseneke
DCJ, Hlophe
JP, Nkabinde J and Jafta JA.
4. As
to its Terms of Reference, the sub-committee will consider the
notices that were previously sent to the parties involved and
from
those documents consider the issues to be investigated.
5, The
sub-committee wiil proceed with its investigation as from the week of
27 July 2009 and will report back to the Commission
on Saturday 15
August 2009.
6. The
sub-committee will make available to the rest of the members of the
Commission a record of the proceedings as well as their
report for
consideration before 15 August 2009.'
[7]
In July 2008 the JSC effectively determined that there was a prima
facie case of incapacity, incompetence or misconduct against
the
Judge President. On 14 July 2008
the
JSC issued an invitation to interested parties to make written
submissions as to whether the proposed hearing into the complaints

made against the Judge President should not be public and, if so,
what media coverage should be permitted. No hearings took place
in
2008 and the hearing was set down for 1 to 8 April 2009. On 28 March
2009, after asking the etv applicants whether they wished
to make
further submissions, the JSC decided that the hearing would not be
open to the public or the media. However, on 31 March
2009 Willis J
set aside the decision (the Willis decision') and ordered inter alia
that
'(i)
The hearing is to be open to the public and the media;
(ii)
The ... chairperson ... is to permit the applicants to set up
such equipment as is necessary to in order to obtain a sound

recording of the hearing for the purposes of broadcasting such
hearing in the form of live or delayed broadcasts, and broadcasts
on
news and/or current affairs programmes; (Hi) The ... chairperson
... shall retain his ordinary powers to make appropriate
rulings in
the hearing upon good cause shown to him.'
[8]
The hearing took place at the beginning of April 2009. Oral evidence
was given by five Constitutional Court Justices. The media
and public
were present and sound recordings were made and broadcast to the
public.
[9]
In May 2009 the Judge President launched a review application in
relation to the hearing before the JSC. The majority of the
court in
its judgment of 1 June 2009 (the Tsoka judgment') found that
there
is no basis upon which this Court could find that the proceedings of
5 July 2008 to 1 March 2009
are
unlawful'
but
that
'the
proceedings of the JSC of both 7 and 8 April are unreasonable and
unlawful [and] ought to be set aside
'
.
The following order was
made:
'44.1
The proceedings of the JSC of the 7 and 8 April 2009 are set
aside.
44.2
The proceedings are to commence
de
novo
on
a date suitable to both parties.'
[10]
On 8 July 2009 the JSC resolved not to appeal the Tsoka decision
and to commence the hearing de novo. On 21 July 2009 the
JSC was
reported to have decided on a closed inquiry into the complaints and
would conduct a preliminary investigation rather than
a formal open
hearing. On 22 July 2009, however, it was reported that the JSC had
cancelled its closed preliminary investigation
(see para 33 of the
founding papers in the Mail and Guardian application). On 23 July
2009 it was announced that the decision cited
above had been taken.
This led to the present applications.
[11]
The applicants seek to set aside the decision of the JSC on both
constitutional and administrative law grounds under PAJA.
It was
argued that it was procedurally unfair because neither the public nor
the media was invited to make representations to the
JSC but also in
view of the decision of Willis J, referred to above, that the hearing
(albeit it not the preliminary investigation)
had to be open to the
public and the media. Secondly, it was submitted that the decision
violated the Constitution or failed to
afford sufficient weight to
the relevant constitutional considerations. Thirdly, it was submitted
that the decision disregarded
considerations in favour of allowing
media access and broadcasting of the preliminary investigation. It
was not possible
within
the time
available to me to do justice to all the arguments presented.
[12]
On behalf of both the applicants in the Mail and Guardian application
and CALS it was submitted that the JSC was
functus
officio
in
respect of and bound by its decision of 5 July 2008 to convene a
formal enquiry into the complaint of the Justices and the
counter-complaint
of the Judge President. In the alternative it was
submitted that the decision to convene the preliminary investigation
was nonetheless
invalid on
account
of procedural unfairness as against the Justices and the Judge
President.
In
particular
it was submitted that a decision in favour of a person may not
be
revoked or
amended subsequently by the authority that made the decision unless
the
authority
is empowered to do so (Baxter
Administrative
Law
(1984)
372 ff). The decision of 5 July 2008, it was submitted, was never
lawfully withdrawn, it was submitted that the procedural
unfairness
to the Justices and the Judge President consisted therein that the
decisions of 8 June 2009 and 22 July 2009 were taken
without
affording the Justices, the Judge President and the two sets of
applicants any hearing. Nor were they afforded any opportunity
to
make representations before
the
decisions
were taken.
[13] The deponent to the
answering affidavit of the JSC justifies the decision taken
by
the
JSC and
traces the history of the hearings and litigation concerning this
matter.
The
point of departure is the decision of the South Gauteng High Court to
order the
JSC to
commence with the hearing de
novo.
The JSC
resolved on 8 June 2009 not to lodge an appeal against this decision
and to commence with the hearing
de
novo.
My
interpretation of the judgment, however, is that only the
commencement of the 'proceedings' ie the proceedings of 7 and 8 April

2009 was ordered to commence
de
novo
and
not the entire proceedings from inception. It was further
stated
in
the
answering papers of the JSC that the composition of the JSC had
changed through the appointment of new members with no or little

knowledge of the facts and circumstances of this case. It was thus
decided to commence with the hearing
de
novo.
In
addition, it was stated that the previous decision to commence with
the
hearing
was challenged by the Judge President on the basis of whether a
preliminary investigation
in
terms of
Rule 4.1 of the Rules of the JSC had preceded the decision to
commence with the hearing. Apparently, on 20 July 2009 the
new
Compiaints Committee met for the first time and resolved to commence
with the hearing
de
novo.
On
22 July 2009 the JSC considered the matter afresh and resolved to
proceed with it in terms of Rule 4.1.
[14]
I
am
not convinced that the JSC was
functus
officio
when
it took the decisions objected to. In terms of s 178(6) of the
Constitution it has the power to 'determine its own procedure,
but
decisions of the Commission must be supported by a majority of
members'. It is implicit in this provision that the JSC may
vary
earlier decisions on the procedure to be followed provided only that
its decision is supported by the majority of members.
The very nature
of the disciplinary process may indeed require different decisions
from time to time concerning the procedures
to be followed. It does
not follow, however, that because no final decision has been reached
as to the complaint and counter-complaint
that the JSC may disregard
rules of procedural fairness in varying or amending earlier decisions
(see
Earth
Life Africa (Cape Town v Director-General: Department of
Environmental Affairs & Tourism
2005(3)
SA 156 (C) para 64).
[15] The decisions of the
JSC appear to be 'administrative action' and falls to be reviewed
under the Promotion of Administrative
Justice Act. They are
'decisions' of an 'administrative nature' and which adversely affect
the rights of the applicants. I need
not say more about their
standing to lodge this application. However, if my conclusion is
incorrect a case for constitutional review
has been made out. The JSC
Rules provides for a procedure in three stages for the adjudication
of complaints alleging incapacity,
gross incompetence or gross
misconduct. The first stage is dealt with in Rule 3 and requires the
JSC to determine 'whether prima
facie the conduct complained of
would, if established, amount to such incapacity, incompetence or
misconduct as may justify removal
of the Judge in terms of section
177(1) of the Constitution.' This determination was made by the JSC
on 5 July 2008 as is confirmed
by the affidavit of Mpati J in earlier
proceedings which was annexed to the Mail and Guardian application
(see paras 38, 39 41
and 42 at 267-8 and para 45 at 270 and para 9.3
at 350 of the first and second respondents' answering affidavit). In
addition,
in the application proceedings before Tsoka, Maiuleke and
Willis JJ only the proceedings of 7 and 8 April 2009 were set aside
and
not also those proceedings preceding them. Where a preliminary
investigation is appointed it may hear evidence and report to the
JSC
regarding the further conduct of the matter in which case the JSC
must resolve whether to accept the recommendations of the

sub-committee (Rule 4.3). Rule 4.3 is silent on the question whether
a preliminary investigation should be open to the public and
it
follows that a discretion is given to the JSC. The final stage of the
process is set out in Rule 5 which provides for a formal
enquiry into
the complaint. Rule 5.6 provides that the 'JSC shall be entitled to
permit the media and public, subject to such restrictions
as may be
considered appropriate, to attend an enquiry unless good cause is
shown for their exclusion.' The JSC commenced a formal
enquiry on 1
April 2009 but, as I have said, the proceedings of 7 and 8 April 2009
were set aside.
[16]
The Justices pointedly made the remark in their letter of 28 July
2009 that they did not object to the proposed procedure but
added
that 'this was because they were unaware that any decision was being
contemplated by the JSC and were not heard on the issue'.
They
nevertheless abide the decision of this court and have not taken part
in these proceedings except to this limited extent.
I am not
altogether certain that they or the Judge President are entitled to
determine the nature of the enquiry or hearing (in
other words 'the
procedure') being complainants or interests they have that deserve
consideration in this respect. As far as the
Judge President is
concerned, I have already referred to his statement that he abides
the decision and expressed his willingness
to appear before the JSC.
My decision will be made on other grounds.
[17]
The media's right of access to the formal enquiry was emphasised by
the judgement of Willis J. I need not dwell on the considerations

referred to by him. They are not really disputed. The public and the
media attended the hearings of 1, 4, 7 and 8 April 2009. The
judgment
of Tsoka J did not affect any of the rights enjoyed by the media or
the public in any resumed hearing. Nor would the decision
of the JSC
of 8 June 2009 to commence the formal enquiry de novo affect those
rights. At the risk of labouring the point reference
may perhaps be
made to
South
African Broadcasting Corp Ltd v National Director of Public
Prosecutions and Others
2007
(1) SA 532
(CC):
'[27]
Ultimately, however, what is central to the issue is not the
responsibility and rights of the SABC as a broadcaster. What
is at
stake is the right of the public to be informed and educated ...
[28]
The
need for public information and awareness flows from the
nature
of
our democracy. Public participation on a continuous basis provides
vitality to a democracy. ... A vibrant and independent media

encourages citizens to be actively involved in public affairs, to
identify themselves with public institutions and to derive the

benefits that flow from living in a constitutional democracy. Access
to information and the facilitation of learning and understanding
are
essential for meaningful involvement of ordinary citizens in public
life. This corresponds to the vision in the Preamble to
the
Constitution of laying the foundations for a democratic and open
society in government is based on the will of the people.
It also
reflects the foundational principle of democratic government which
ensures accountability, responsiveness and openness.
[29]
This case, then, is not essentially about the rights of the SABC.
Rather it concerns the right of South Africans to know and
understand
the manner in which one of the three arms of government functions,
namely, the Judiciary. This is a strong constitutional
consideration.
The right of the people
to
be informed of judicial processes presupposes that courts are open
and accessible. The fact that courts do their work in the public
eye
is a key mechanism for ensuring their accountability.'
[18] It was argued on
behalf of the JSC that their decision could be justified with
reference to the new members that joined the
committee; by the powers
they have to vary earlier decisions and by the provisions of s 178(6)
enabling them to regulate their
own procedures. As i have said, i
think they do have the power to embark on a new preliminary hearing:
this power seems to be necessarily
implied. It could well be that an
administrative decisions stands until set aside but the JSC has the
power to regulate its own
conduct and can vary or change decisions
made. This, it seems, they have done by implication. However, this
power does not absolve
them from acting in accordance with the
Constitution
(President
of the RSA v SARFU and Others
1999
(10) BCLR 1059
(CC) para 148).
[19]
I am not sure that the decision to commence a preliminary
investigation is in breach of Willis J's order. However, this is
not
the end of the matter. Our constitutional scheme embraces a
preference for openness in the conduct of public affairs (cf ss

195(1)(g), 34, 41(1)(c), 59(1)(b), 52, 182(5), 188(3) of the
Constitution). Moreover, the public is entitled to know how the
judiciary
functions and that it functions consistently with the
principles of independence, fairness and impartiality. The media is
the watchdog
of society keeping the public informed of matters of
public interest to enable them to make informed choices about
government and
democracy. See the remarks on freedom of the press and
s 16 of the Constitution in
Dotcom
Trading 121 t/a Live Africa Network News v King NO
2000(4)
SA 973 (C) paras 59 ff;
SABC
and Others v Public Protector and Others
2002
(4) BCLR 340
(T) 347 ff. Any limitation on the right of the media
must be in accordance with s 36 and proportional to the purposes
which the
limitation seeks. Organs of state exercising discretionary
powers are required to do so with appreciation of the impact of their

decisions on the constitutional rights of those affected. No such
appreciation is apparent from the answering affidavit of the
JSC (see
the discussion in
Dotcom's
case
supra).
[20]
The Judge President referred to foreign literature and jurisprudence
on the need for caution and confidentiality during any
preliminary
investigation into a judge's conduct. I accept the need for such
caution and confidentiality during the early period
of any
investigation. Confidentiality would encourage the filing of
complaints but also protect judges from unwarranted and vexatious

complaints and maintain confidence in the judiciary by avoiding
premature announcements of groundless complaints. Moreover, it
would
facilitate the work of the disciplinary authority by giving it
flexibility to accomplish its functions through voluntary
retirement
or resignation (see the Judge President's answering affidavit at page
375 para 15). Confidentiality is required to protect
a judge from
frivolous and unfounded complaints; to allow a judge to recognise and
correct his or her own mistakes; to resolve
the complaint prior to
formal proceedings and to protect the privacy of the judge.
[21]
However, none of these considerations apply in this matter. This case
has long progressed beyond the stage of a preliminary
investigation.
The JSC according to its own papers has already determined that there
is a prima facie case of incompetence, incapacity
or misconduct. The
identity of the judge involved is known as are the names of the
complainants. Some of them have already testified
in open public
hearings. An order made by Willis J ensured the openness of the
hearings
and
access to
the media and the public to them. The details of the complaint and
counter-complaint are in the public domain: not only
in the media but
also in the form of affidavits in the various court proceedings. The
complaints are not frivolous and have indeed
been made by the
Justices of the Constitutional Court. The public deserves access to
the further proceedings.
[22] The reasons
advanced by the JSC do not justify the closed nature of the proposed
proceedings. Any benefit that may or might
have been be gained by a
hearing 'outside the intrusive glare of publicity' will be discounted
by negative perceptions of the judiciary
and the administration of
justice in general. This matter has attracted immense public interest
and has been the subject of a debate
in the media. There is every
need to ensure the public's continued access to the issues.
[23] The JSC has also
referred to various aspects of the preliminary investigation such as
the fact that no oath will be administered,
only legal
representatives of the parties would be allowed, and that no findings
of fact will be made. These considerations, it
was submitted,
justified the closed nature of the investigation. To my mind, this
does not justify the exclusion of the media and
the public. Nor do I
think does the contention that the closed nature of the investigation
will allow the parties to speak 'freely
without the pressures of a
witness in a public hearing'. This objection loses sight of the fact
that some of the Justices have
already testified in an open hearing.
There is no suggestion, and there can be none, that the Justices or
the Judge President will
be intimidated and not speak 'freely'.
Finally, neither the Justices nor the Judge President oppose the
relief sought. I fail to
see how the purpose and objective of the
preliminary investigation would be defeated by an open investigation.
[24] The answering papers
hardly contain any justification for the decision to hold the
investigation confidential. Nor is there
any suggested justification
for limiting the rights of the media under s 16(1} of the
Constitution (cf
Giddey
NO
vJC
Barnard and Partners
[2006] ZACC 13
;
2007
(5) SA 525
(CC) para 15 ff;
Dotcom
Trading v King and Others
2000
(4) SA 973
(C) paras 47 ff). There is hardly a suggestion that the
JSC took freedom of expression and the media into account at all in
coming
to their decisions (cf
SABC
& Others v Public Protector & Others
2002
(4) BCLR 340
(T) 353).
[25] In these
circumstances, I am entitled, whether under s 8(1)(c)(ii)(aa) PAJA or
otherwise to substitute my own decision for
that of the JSC. See
Commissioner
Competition Commission v General Council of the Bar of South Africa
and Others
2002
(6) SA 606
(SCA) paras 14-5). The result appears to be a foregone
conclusion and there is a need that matters be expedited.
[26] An order is made;
Reviewing and setting
aside and substituting the first respondent's decision taken on 22
July 2009 that the preliminary hearing/investigation
of the
complaint of the Justices of the Constitutional Court and the
counter-complaint of the Judge President will not be open
to the
public or the media;
Directing
the first respondent to:
(i)
permit
representatives from the media to attend the preliminary
hearing/investigation; and
(ii)
permit
the applicants in both applications to set up such equipment as is
necessary in order to obtain a sound recording of the
preliminary
hearing/investigation for the purposes of broadcasting it in the form
of live or delayed broadcasts, and broadcasts
on news and /or current
affairs programmes.
(c)
Directing
the first respondent to pay the costs of the applicants in both
applications.
Malan
J
J
udge
of the High Court