BEFORE THE JUDICIAL SERVICE COMMISSION

In re:

The Complaints by the Constitutional Court and Judge President Hlophe


WRITTEN SUBMISSIONS OF THE FREEDOM OF EXPRESSION INSTITUTE


1.    The Freedom of Expression Institute (‘FXI’) submits these written submissions to the Judicial Service Commission (‘JSC’) in response to the JSC’s notification of 14 July 2008 which afforded an opportunity to all interested parties to address two issues: first, whether the pending hearing into complaints by the Constitutional Court and Judge President Hlophe (‘the hearing’) should be public; and secondly, if they are to be public, what media coverage should be permitted.

2.    The FXI is a not for profit non-governmental organisation which was established in 1994 to protect and foster the rights to freedom of expression and access to information, and to oppose censorship. The FXI’s primary objectives are to promote and defend freedom of expression; to oppose censorship; to advocate the right of equal access to information and knowledge; and to promote access to media and a free press.

3.    The FXI undertakes a wide range of activities in support of these objectives, including lobbying, education, monitoring, research, publicity, litigation and the funding of legal cases that advance these rights.

4.    In accordance with its mandate, the FXI wishes to make submissions on both questions set out in the JSC’s notification of 14 July 2008.

5.    In broad terms, the FXI submits that the hearing should be open to the public and that media broadcasting of the hearing should be permitted.

6.    The scheme of these submissions track those two issues in turn:

6.1.    In the first part of the submissions, the question whether the hearing should be open to the public is addressed by considering the following issues:

6.1.1.    The public interest in the hearing.

6.1.2.    The JSC, as an organ of state, is bound by the principle of openness which permeates the Constitution.

6.1.3.    The JSC’s Rules Governing Complaints and Enquiries in terms of section 177(1)(a) of the Constitution (‘the JSC Rules’) set the framework in which the question of openness must be evaluated.

6.1.4.    In line with that framework, the seven traditional justifications for the closure of judicial disciplinary proceedings are shown to be insufficient to justify closure of the hearing.

6.1.5.    The comparative approach of the United States and Canada to public access to judicial disciplinary proceedings evinces a strong trend towards openness when a complaint against a judge has been deemed sufficiently meritorious to warrant a formal hearing.

7.    The second part of these submissions proceeds on the assumption that the JSC determines that the hearing should be open to the public and advocates that the media be permitted to broadcast the hearings to the public on the following grounds:

7.1.    The media acts as the conduit for the public’s access to information.

7.2.    As a consequence of this important responsibility borne by the media, it is important that the media be permitted to use the tools of their trade in conveying information to the public.

7.3.    The public’s understanding and appraisal of the hearing will be enhanced if broadcasting is permitted.

8.    In the final section of these submissions, the main conclusions on the two issues presented for comment are drawn together.


PART A

The public interest in the hearing

9.    The complaints by the Constitutional Court and Judge President Hlophe strike at the core of the integrity of the judiciary in this country.

10.    Since the Constitutional Court’s public statement on 30 May 2008, few issues have occupied more public space than the implications of these allegations for the integrity and independence of our judiciary.

11.    The hearing will assess whether the impeachment of no less that fourteen judges should be recommended to Parliament. In the history of our democracy, their can be few issues of greater significance for the public’s confidence in the judiciary than this determination.

12.    As the body constitutionally charged with adjudicating complaints against judges, the JSC is responsible for preserving the integrity of the judiciary as a whole.

13.    Through its powers to investigate, reprimand and potentially to recommend the removal of judges where their conduct may threaten judicial integrity, the JSC is responsible for ensuring the institutional protection of the judiciary and, with it, public perceptions of the judiciary.

14.    As the Canadian Supreme Court has noted, maintaining the public’s confidence in the justice system not only ensures its effectiveness and proper functioning, but also promotes the general welfare and social peace by maintaining the rule of law:

Public confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to democracy founded on the rule of law.

Re Terrien [2001] 2 S.C.R. 3, 2001 SCC 35 at para 110

15.    In the light of this, the public’s manifest interest not only in the conclusions reached at the hearing but also the manner in which those conclusions are arrived at cannot seriously be disputed.

16.    The most effective guarantee to the public that the JSC’s ultimate decisions in relation to the complaints were fairly and impartially made, would be to open the hearing to the public.

The principle of openness

17.    As an organ of state, the JSC is bound, in terms of section 195(1)(g) of the Constitution, to foster transparency in the discharge of its functions and to provide the public with “timely, accessible and accurate information”.

18.    In addition to this, its procedures ought to be informed by the principle of openness which is entrenched in numerous provisions of the Constitution:

18.1.    section 34 provides that "[e]veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum";

18.2.    section 41(1)(c) provides that all organs of state must "provide effective, transparent, accountable and coherent government for the Republic as a whole";

18.3.    section 59(1)(b) states that the National Assembly "must conduct its business in an open manner, and hold its sittings, and those of its committees, in public" (see also section 188(1) in relation to provincial legislatures);

18.4.    section 59(2) provides that the National Assembly "may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open an democratic society" (see also section 188(2) regarding provincial legislatures);

18.5.    section 182(5) states that any report issued by the Public Protector must be open to the public unless exceptional circumstances require that it be kept confidential; and

18.6.    section 188(3) states that the Auditor-General's reports must be made public.

19.    The FXI submits that the extension of the principle of openness to judicial disciplinary proceedings has at least five benefits:

19.1.    Open hearings enhance the public’s respect for the law by confirming that the most stringent of ethical standards for public officials are being fairly enforced.

First Amendment Coalition v Judicial Inquiry and Review Board 784 F.2d 467, dissenting judgment of Adams ACJ at 486, citing Richmond Newspapers Inc. v. Virginia, 448 US 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) at 595 (Brennan J concurring)

Comment, ‘A First Amendment Right of Access to Judicial Disciplinary Proceedings’ 132 U. Pa. L . Rev. 1163 (1984) at 1181.

19.2.    Openness secures a “community therapeutic value” by providing a chance for the public to verify that a public agency, such as the JSC, is enforcing ethical rules fairly against those who are charged with meting out justice.

First Amendment Coalition v Judicial Inquiry and Review Board 784 F.2d 467, dissenting judgment of Adams ACJ at 486, citing Press-Enterprise Co v Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) at 508-9 and Richmond Newspapers Inc. v. Virginia, 448 US 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) at 2823-24 (plurality)

19.3.    An open hearing acts as security for testimonial trustworthiness - as in the criminal trial context, public scrutiny would discourage perjury or other misconduct.

Shaman and Begue ‘Silence Isn’t Always Golden: Reassessing Confidentiality in the Judicial Disciplinary Process’ 58 Temple L.Q. 755, 771 (1985)

19.4.    Public access to the hearing fosters the integrity of judicial proceedings:

Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Moreover, openness is a principle component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.

Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43 at para 25

19.5.    Openness has an educational benefit by informing the public about matters relating to the functioning of government.

First Amendment Coalition v Judicial Inquiry and Review Board 784 F.2d 467, dissenting judgment of Adams ACJ at 486, citing Richmond Newspapers Inc. v Virginia, 448 US 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) at 575


The JSC Rules

20.    Consistent with the principle openness, JSC Rule 5.6 stipulates that:

The JSC shall be entitled to permit the media and public, subject to such restrictions as may be considered appropriate, to attend any enquiry unless good cause is shown for their exclusion.

21.    The presumption of openness prescribed in this Rule should, it is submitted, provide the framework for the JSC’s determination whether to open the hearing to the public.

22.    The effect of a presumption of openness is to require justification (‘good cause’ in the language of Rule 5.6) for the closure of the hearing.

23.    Traditionally, there have been seven justifications offered for the closure of judicial disciplinary hearings. In the FXI’s view, none of these is sufficient in the present matter to justify denying the public access to the hearing.

Seven justifications for closure

24.    There appear to be seven traditional justifications for the closure of judicial disciplinary proceedings. These include:

24.1.    protecting the judiciary from frivolous and unfounded complaints;

24.2.    allowing a judge to recognise and correct his or her mistake;

24.3.    resolving the compliant prior to formal proceedings by allowing a judge to resign or retire without public embarrassment;

24.4.    protecting the constitutional right of privacy of the judge;

24.5.    protecting the participants and witnesses in the hearing from undue pressure and recrimination, thereby encouraging people to come forward with complaints;

24.6.    facilitating the investigatory process; and

24.7.    maintaining public confidence in the judiciary.

Keyt ‘Reconciling the Need for Confidentiality in Judicial Disciplinary Proceedings with the First Amendment: A Justification Based Analysis 7 Geo. J. Legal Ethics 959 (1993-1994) at 966

25.    A number of the justifications set out above apply only to those aspects of the judicial disciplinary process which precede a decision to conduct formal hearings into a complaint. As a consequence of this, the first to third justifications do not apply to the present matter given that the JSC has already determined that the Constitutional Court and Judge President Hlophe have made out a prima facie case of gross misconduct within the meaning of section 177(1)(a) of the Constitution and, as a consequence, that their complaints should be the subject of a formal hearing.

26.    Therefore, in order to assess whether there is good cause for the closure of the hearing to the public, it is necessary to evaluate the remaining traditional justifications.

27.    These relate to protecting the privacy interests of the judges; encouraging the lodging of complaints; facilitating the investigatory process; and maintaining public confidence in the judiciary.

Protecting privacy interests

28.    In so far as the privacy justification is concerned, it is clear that this justification for closure is more persuasive at the stage of proceedings before a formal hearing is held.

29.    Even baseless complaints may have the tendency to damage a judge’s reputation. For this reason, the confidentiality of the disciplinary process up until the determination that a prima facie case for impeachment has been made out, may be justified. However, after the JSC has determined that a prima facie case exists, there can be no threat of the injury which a baseless compliant may cause to a judge’s reputation.

30.    Once a determination has been made that a prima facie case of misconduct has been established, albeit only on the papers before the JSC, the public’s right to be informed of governmental proceedings becomes heighted and must, we submit, outweigh any remaining privacy interest which the judge/(s) may have.

Encouraging the lodging of complaints

31.    The particular facts which gave rise to this hearing diminish the force of the argument that proceedings should remain closed in order to encourage people to lodge complaints against judicial officers.

32.    Such an argument only has force where it would be possible, in adjudicating the complaint, to keep the identity of the witnesses and complainant confidential.

33.    That is simply not the case in the present matter.

34.    In this matter, the complaint against Judge President Hlophe emanates from the Constitutional Court itself after an alleged attempt was made by Judge President Hlophe to influence the outcome of a number of cases in which judgment is pending before the Constitutional Court and which relate to the President of the ANC’s upcoming corruption trial.

35.    Furthermore, Judge President Hlophe’s complaint against the Constitutional Court arose as a response to the complaint lodged against him.

36.    Thus both the identity of the complainants and the potential witnesses have already been publicly disclosed. As a result, opening the hearing to the public cannot in any way discourage the future reporting of judicial misconduct.

37.    If anything, opening the hearing to the public may encourage the lodging of such complaints in the future if the public is reassured that the process was handled evenly and fairly.

Enhancing the investigative process

38.    In so far as the enhancement of the investigative process is concerned, it is unclear in what particular respects the investigation of the complaints may be advanced by the closure of the hearing to the public unless the contention is that the witnesses will be more frank and forthcoming in their evidence if the hearing is closed.

39.    If this is the rationale for the closure of the hearing, it may have serious negative implications for the public’s confidence in the process.

40.    The JSC Rules prescribe that any witness testifying at an enquiry into judicial misconduct will be required to take the oath or affirm the truth of their testimony (Rule 5.9). The taking of the oath places an onerous duty on those testifying which may give rise, if it is not observed, to a charge of perjury against the witness.

R v Beukman 1950 (4) SA 261 (O) at 263

41.    This is the ordinary consequence which attaches to the giving of evidence in judicial proceedings. If the same rules relating to the giving of truthful evidence apply to witnesses who testify at a formal hearing before the JSC into alleged judicial misconduct as they do to witnesses before courts of law presided over by those very same judges, the question may legitimately be raised as to why judges accused of misconduct should be afforded any greater protection from public scrutiny than the members of the public whom they are called on to judge.

42.    If it is deemed necessary for the formal hearings into allegations of judicial misconduct to be closed in order to enhance the candidness of the witnesses or the extent of their evidence, this would send a worrying message to the public that different rules apply to judges than to ordinary citizens.

43.    Such a message may give rise to a vision of the judiciary against which Frankfurther J cautioned many years ago. According to Frankfurter J, we have no general authority to:
 
 “protect the court as a mystical entity or the judges as individuals or as annointed priests, set apart from the community and spared the criticism to which in a democracy other public citizens are exposed”.

Bridges v California 314 US 252, 291-2 (1941) (Frankfurter J dissenting)


Maintaining the public’s confidence in the judiciary

44.    The contention that the public’s confidence in the judiciary would be enhanced by closure of the hearing does not withstand scrutiny.

45.    Although the JSC may have legitimate concerns about the implications of the outcome of the hearing for the public’s confidence in the judiciary, it is not appropriate to seek to allay that concern by closing the doors of the hearing.

46.    In order for this sort of justification for closure to be valid it would have to be the case that a more favourable image of the judiciary would be maintained by an uninformed public than by a public which witnesses the regulation of the judiciary.

47.    Given the attention which this matter has already received in the media and, as a consequence of this, the public’s heightened interest in the process and outcome of the hearing, it could only have a negative impact on the public’s confidence in the judiciary if it were now to be barred from seeing for itself the standards against which the judges are assessed and the manner in which those standards are applied and conclusions are drawn.

48.    Indeed, nothing could be more injurious to the public’s confidence in the judiciary than a statement by the body constitutionally tasked with its oversight that the evaluation of these serious complaints of misconduct must be kept from public scrutiny.

49.    Thus, the FXI submits that none of the traditional justifications for the closure of judicial disciplinary proceedings constitutes ‘good cause’ for denying the public access to the hearing. This is a consequence not only of the particular facts surrounding the development of this matter but also the failure, at the level of principle, of these argument to justify the closure of such inquiries after it has been determined that a prima facie case of gross misconduct has been made out.

Comparative approaches

United States

50.    In 33 of the 50 states in the United States of America, if after a preliminary investigation of a complaint, the relevant judicial conduct committee determines that there is probable cause of an ethics violation and a formal hearing is necessary, the confidentiality which attaches to the proceedings up until that point ceases. As a result, the formal charges, the judge’s answer, and the subsequent proceedings (including the hearing and the commission’s decision) are public.

Gray ‘How Judicial Conduct Commissions Work’ 28 Justice System Journal (2007) 405, 413

51.     As Gray notes in her recent discussion of judicial conduct commissions in the US, New York is one of the states in which formal disciplinary hearings are closed. However, she notes that the State Commission on Judicial Conduct has urged for many years that the hearings be opened to the public. In its 2006 annual report, the Commission contended that “if the charges and hearing portion of a Commission matter were open, the public would have a better understanding of the entire disciplinary process”. Moreover, the Commission highlighted the fact that maintaining the confidentiality of the proceedings is often beyond the Commission’s control because subpoenas are issued, witnesses are interviewed and prepared to testify, and judges consult with judicial colleagues, staff and others and “word spreads”. As a consequence, the Commission noted that “as more ‘insiders’ learn of the proceedings, the chances for ‘leaks’ to the press increase, often resulting in published misinformation and suspicious accusations as to the source of the ‘leaks’”.

Gray ‘How Judicial Conduct Commissions Work’ 28 Justice System Journal (2007) 405,413-4

52.    The Commission’s observations have particular relevance in the present case where, notwithstanding the JSC’s best efforts, both the Constitutional Court’s statement to the JSC and Judge President Hlophe’s response thereto have been leaked to the media.

53.    Given the JSC’s limited ability to prevent such ‘leakages’, there is a strong argument in favour of opening the hearing in order for the speculation and inaccuracies, often associated with such leaks, to be eradicated.

Canada

54.    In Canada, judicial misconduct proceedings are governed by the Canadian Judicial Council Inquiries and Investigations By-Laws promulgated under the Judges Act R.S.C. 1985, c. J-1.

55.    The Canadian approach to judicial misconduct proceedings involves a two-stage process akin to the JSC’s processes.

56.    As the Ontario-Court of Appeal noted in the case of Hryciuk v Ontario 31 OR (3d) 1, 139 DLR (4th) 577 at paras 35-7:

The two-stage process represents a clear statutory intention that not all complaints about judges should be subject to public scrutiny. … On the other hand, there is a significant public interest in having some complaints aired publicly … to maintain public confidence in the judiciary.  The Judicial Council has, therefore, been charged with responsibility for screening allegations against provincial court judges, and to determine, after an investigation and/or a hearing, whether the complaint raises a genuine issue about the judge’s capacity to continue to perform her or her judicial functions….

In this way, judges are protected from routine vulnerability to public opprobrium when the complaints are spurious; but neither are they immune from public scrutiny when the complaint has sufficient merit that the Judicial Council recommends that an inquiry take place. (emphasis added)

57.    Consistent with this observation, in terms of clause 6(1) of the by-laws, any hearing of the Inquiry Committee shall be conducted in public unless, subject to subsection 63(6) of the Judges Act which empowers the Minister to determine that an hearing is to be held in public, the Inquiry Committee determines that the public interest and the due administration of justice require that all or any part of a hearing be conducted in private.

58.    This, like the JSC Rules, creates a presumption in favour of open hearings.

59.    Since its inception in 1971, the Canadian Judicial Council has referred eight complaints to an Inquiry Committee for formal investigation. All eight of these inquiries have been held in public.

http://www.cjcccm.gc.ca/english/conduct_en.asp?selMenu=conduct_inquiry_en.asp

60.    The approaches in Canada and the United States set out briefly above evince a strong preference for formal hearings into judicial misconduct to be open to the public. This, it is submitted, is in accordance with respect for the open justice principle which is a hallmark of both legal systems.

61.    The relevance of this comparative data for the JSC’s determination is clear: two of the jurisdictions, to which our courts regularly turn for guidance in rights’ matters, display a marked preference for opening formal judicial disciplinary hearings to the public. In Canada, 100% of such inquiries have been open to the public and in the US, two-thirds of the states adopt this approach.

62.    Moreover, the similarities between the Canadian rules governing judicial misconduct inquiries and their South African counterpart enhances the relevance of the Canadian approach to public access to formal hearings. Both sets of rules create a presumption in favour of openness. It is therefore significant that in its application of those rules, the Canadian Judicial Council has never seen fit to close a formal hearing to the public.





PART B

The role of the media

63.    Section 16 of the Constitution guarantees everyone the right to freedom of expression. This includes the freedom of the press and other media and the freedom to receive or impart information and ideas.

64.    The Constitutional Court has articulated the importance of the right of the public to receive information and ideas and the role which the media plays in being the conduit through which the public receives such information.

The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the rights to freedom of information are respected. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out our constitutional mandate. As Deane J stated in the High Court of Australia,

‘.... the freedom of the citizen to engage in significant political communication and discussion is large dependent upon the freedom of the media.’

The media thus rely on freedom of expression and must foster it. In this sense they are both bearers of rights and bearers of constitutional obligations in relation to freedom of expression.. . .

In a democratic society, then, the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigour, courage, integrity and responsibility.

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) at para 22-4

See, further, South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 (1) SA 523 (CC) at para 42

65.    Furthermore, the Constitutional Court has emphasised the importance of the open justice principle in our constitutional scheme and has recognised that it gives rise to an entitlement on the part of the public ‘to know exactly how the judiciary works and to be reassured that it always functions within the terms of the law and according to time-honoured standards of independence, integrity, impartiality and fairness’.

South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 (1) SA 523 (CC) at para 32

66.    It is important to emphasise that any request by the media to broadcast the hearing must be understood as a request by the public’s representative in the hearing to provide information to the broader public.

Stepniak ‘A Comparative Analysis of First Amendment Rights and the Televising of Court Proceedings’ 40 Idaho L. Rev 315 (2003-2004) at 348

67.    It is as an example of the discharge of their role as a conduit for information to the public, that any request by the media to broadcast the hearing must be approached.

68.    While the FXI supports the finding that the media be permitted to broadcast the hearing, it is important to emphasise that its submissions in this regard speak to the broad principles supporting such a result, as opposed to the detailed exposition of the proportionality analysis which will need to be conducted by the JSC in the light of the information furnished by those media representatives who wish to broadcast the hearing.

69.    Although not specifically deciding the issue, in the case of South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others, the Constitutional Court assumed that the right to freedom of expression included the media’s right to televise court proceedings.

South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 (1) SA 523 (CC) at para 25

70.    This approach is consistent with that adopted by the Full Bench in the case of Dotcom Trading 121 (Pty) Ltd v King N.O. and Others 2000 (4) SA 973 (C):

It is true . . . that the applicant in this matter was not denied access to the proceedings; that applicant’s journalists could make notes and that applicant could broadcast the contents of the evidence placed before the Commission, even verbatim if it is so wished. Non constat, however, that the refusal to allow applicant to broadcast the proceedings or to make a sound recording of the proceedings does not constitute an infringement of applicant’s rights in terms of section 16(1)(a) of the Constitution. It is almost self-evident in my view that the prohibition of the direct radio transmission of proceedings by a radio broadcaster constitutes a limitation on what is essential to the activities of that medium of communication. I have heard no argument and I can see no reason in logic why a limitation on what constitutes the very essence and distinguishing feature of the radio broadcasters’ medium of communication does not constitute an infringement of the radio broadcasters’ freedom which is enshrined in section 16(1)(a). It is not without reason, so it appears to me, that the section 16(1)(a) of the Constitution does not limit its guarantee to the freedom of the press, but specifically extends this freedom to other media of communication and expression as well. Each of these media of communication and expression has its own distinguishing features and each of them can be limited in a different way. The video camera most probably provides the ultimate means of communication. But radio also has its advantages over the print media. Not only the words spoken, but the emphasis, the tone of voice, the hesitations, etcetera can be recorded and communicated. To prevent the radio broadcaster from recording the evidence is to deprive him of that advantage over the print media.
Consequently, the argument that a prohibition of radio broadcasters’ rights to broadcast directly does not interfere with the rights of that medium because it still has the same rights as the print media, in my view, amounts to a non sequitur. The equivalent of the newspaper journalist’s shorthand notes to the radio broadcaster is not shorthand notes, but an audio recording. (emphasis added)

At paras 43-5

See further     South African Broadcasting Corporation Ltd v Thatcher and Others [2005] 4 All SA 353 (C) at paras 39 – 41

    SABC and Others v Public Protector and Others 2002 (4) BCLR 340 (T) at 350D-E

71.    Although the FXI accepts that the right of the media to use the tools of their trade is not absolute, and may be subject to limitation in terms of section 36 of the Constitution, it is important to stress that in determining whether to allow broadcasting of the hearing, the JSC will be required to ensure that the extent of the impairment of right to freedom of expression is proportional to the purpose it seeks to achieve.

South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 (1) SA 523 (CC) at para 42

72.    As highlighted above, that proportionality enquiry can only be undertaken in the light of the submissions to the JSC by the media representatives who are in a position to set out the extent of the broadcasting envisaged and the requirements necessary to facilitate such broadcasting.

73.    However, it is important to highlight that in conducting the proportionality analysis, the JSC ought to consider that permitting broadcasting of the hearing will:

73.1.    afford the public an opportunity to assess the conduct of the hearing themselves, without any editorial alteration by reporters;

73.2.    provide an opportunity for the public to assess, first hand, the general demeanour of the witnesses, their vocal intonations, hesitancies and the conviction with which they deliver their evidence; and

73.3.    promote access to information about the hearing to the illiterate among the members of the public who would be unable to follow the conduct of the hearing if the only mechanism for obtaining this information was via the printed media.

CONCLUSION

74.    The FXI submits that the hearing ought to be open to the public on three principle grounds:

74.1.    First, opening the hearing will have numerous benefits which include: enhancing the public’s respect for the law; providing a ‘community therapeutic value’; securing testimonial trustworthiness; fostering the integrity of judicial proceedings; and providing a valuable educational opportunity.

74.2.    Secondly, none of the traditional justifications for the closure of judicial disciplinary proceedings can justify the closure of this particular hearing.

74.3.    Thirdly, the comparative approaches of the US and Canada point strongly in favour of allowing public access to the hearing.

75.    In so far as the extent of media coverage of the hearing is concerned, the FXI supports the media’s right to broadcast the hearing. Allowing broadcasting will enable the media to use the tools of their trade most effectively in providing information about the hearing to the public – an obligation which is it constitutionally obliged to discharge.

KATE HOFMEYR
Chambers
Sandton

Instructed by:
FREEDOM OF EXPRESSION INSTITUTE
Ref: Melissa Moore
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22 July 2008