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)

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)

The JSC set its own standard that hearings should be open to the public and media unless good cause is shown for exclusion. The court found that the JSC failed to provide sufficient, objective reasons to justify closing the hearing. The stated reason of protecting dignity was vague, unsupported, and did not demonstrate how exclusion would serve that purpose. The principle of open justice, endorsed by the Constitution and common law, requires transparency in matters of public importance, especially where the judiciary itself is under scrutiny. The applicants established a clear entitlement to relief, and the JSC did not meet its burden to justify departure from openness. Accordingly, the...

Citation
[2009] ZAGPJHC 12
Parties
Applicant: eTV (Pty) Ltd; Applicant: esat (Pty) Ltd; Applicant: AVUSA Media Ltd; Applicant: Independent Newspapers (Pty) Ltd; Applicant: Mail and Guardian Ltd; Applicant: Freedom of Expression Institute; Applicant: Media24 (Pty) Ltd; Applicant: The Centre for Applied Legal Studies; Respondent: Judicial Service Commission; Respondent: Judge Lex Mpati; Respondent: Judge John Hlophe
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
31 March 2009
Case Number
13712/09,13647/09
Procedural Posture
Urgent Application / Application to Set Aside Administrative Decision and for Mandatory Relief
Outcome
Application granted; the JSC's decision to exclude the public and media from the hearing is set aside and the hearing is ordered to be open.
Judges
Willis
Legal Topics
Open Justice, Promotion of Administrative Justice Act, Freedom of Expression, Public Access to Hearings, Judicial Review, Media Rights
Constitutional Law Administrative Law Telecoms and Media Open Justice Promotion of Administrative Justice Act Freedom of Expression Public Access to Hearings Judicial Review +1 more

Case Brief

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Parties

eTV (Pty) Ltd

Applicant

esat (Pty) Ltd

Applicant

AVUSA Media Ltd

Applicant

Independent Newspapers (Pty) Ltd

Applicant

Mail and Guardian Ltd

Applicant

Freedom of Expression Institute

Applicant

Media24 (Pty) Ltd

Applicant

The Centre for Applied Legal Studies

Applicant

Judicial Service Commission

Respondent

Judge Lex Mpati

Respondent

Judge John Hlophe

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Administrative Decision and for Mandatory Relief

Legal Issues

  1. 1 Whether the Judicial Service Commission (JSC) showed good cause for excluding the public and media from the hearing concerning Judge President Hlophe.
  2. 2 Whether the JSC's decision to hold the hearing behind closed doors was lawful and consistent with its own rules and the Constitution.
  3. 3 Whether the applicants are entitled to relief directing that the hearing be open to the public and media.

Ratio Decidendi

The JSC set its own standard that hearings should be open to the public and media unless good cause is shown for exclusion. The court found that the JSC failed to provide sufficient, objective reasons to justify closing the hearing. The stated reason of protecting dignity was vague, unsupported, and did not demonstrate how exclusion would serve that purpose. The principle of open justice, endorsed by the Constitution and common law, requires transparency in matters of public importance, especially where the judiciary itself is under scrutiny. The applicants established a clear entitlement to relief, and the JSC did not meet its burden to justify departure from openness. Accordingly, the...

Court Disposition

Application granted; the JSC's decision to exclude the public and media from the hearing is set aside and the hearing is ordered to be open.

Orders

  • The decision by the Judicial Services Commission taken on 28 March 2009, that the hearing in the matter of the Justices of the Constitutional Court and Judge-President Hlophe would not be open to the public or the media is set aside.
  • The hearing is to be open to the public and the media.