It is a trite principle of constitutional law that court proceedings should take place in the open. This principle, known as the open justice principle, has been described by our Constitutional Court in the following terms: “Since time immemorial and in many divergent cultures, it has been accepted that the business of adjudication concerns not only the immediate litigant, but is a matter of public concern which, for its credibility, is done in the open where all can see” (S v Mamabolo).
There are a number of reasons for the potency of the open justice principle. First, openness ensures that citizens know what is happening in our courts, and can use this knowledge to discuss or criticise the conduct of the proceedings in an informed manner. Secondly, the openness of court proceedings acts as a democratic check on the significant power of the judiciary; this is one way for the public and the media to act as a watchdog on judicial decisions.
Thus, Justice Zak Yacoob was not exaggerating in another Constitutional Court case (Shinga v the State), when he said that “closed court proceedings carry within them the seeds for serious potential damage to every pillar on which every constitutional democracy is based”.
But, like all principles and rights articulated in our Constitution, the open justice principle is not absolute and must yield where competing considerations require this result. For instance, most of us would agree with the rule that court proceedings involving children are not open to the general public.
Courts also have the power to exclude the media and the public from their proceedings in other circumstances, such as where national security interests are at stake.While restrictions such as these are in principle defensible, it is important that our courts function according to the general presumption that justice must be dispensed in the open – that any restrictions on this principle should be exceptional.
The party seeking to close the court hearing should bear a considerable burden to persuade a court that its proceedings should be closed. It is also important that courts allow representations from third parties such as the media, before making the decision to hear a case in camera.
While the open justice principle is of clear application to court proceedings, one question that often arises is whether a similar rule should apply to inquiries or tribunal hearings on matters of public concern. My submission is that all inquiries into matters that will affect the public ought to be conducted in the full glare of publicity.
For instance, just this year, South Africa has witnessed one of the most important inquiries to have taken place in our democracy – namely the inquiry under the National Prosecuting Authority Act, chaired by Frene Ginwala, into whether Vusi Pikoli, the suspended National Director of Public Prosecutions, is unfit to hold that office (the inquiry recently heard closing arguments from the parties).
Ginwala should be commended for making it clear from the outset that the general rule was that the inquiry would take place in public (subject to national security issues being heard in camera), and indeed even television cameras were allowed in the hearing.
The other equally important hearing that is on the cards is by the Judicial Service Commission (JSC) into the complaints made by Judge John Hlophe against the judges of the Constitutional Court, and the Constitutional Court’s complaint against Hlophe (assuming that his application to court to stop the hearing from taking place does not succeed).
This hearing, which will determine the factual disputes between the parties, is a matter of significant public interest; the very fact that complaints and counter-complaints have been levelled by senior members of the judiciary is unprecedented in our country, and probably in most democracies around the world. The details of the complaints by the judges are firmly in the public domain.
The Constitutional Court has alleged that Hlophe sought improperly to infl uence the Constitutional Court’s decision in the Jacob Zuma and Thint group of companies’ appeals (which the Constitutional Court subsequently decided in favour of the National Prosecuting Authority).
Hlophe countered in his complaint that the judges of the Constitutional Court had breached the Constitution in a number of respects, including in that his dignity and rights to procedural fairness had been trampled upon.
At stake in this hearing is the integrity of the judges of our highest court, and the integrity of a Judge President of our High Court. The consequences of the hearing by the JSC include the possibility that any or all of these judges might face impeachment by the National Assembly of Parliament, which will also be unprecedented in our democracy.
In these circumstances, it seems to me that the principle of open justice must apply to the hearing that the JSC intends to hold into the complaints, and to all subsequent hearings. (At the time of going to print the Commission had not indicated whether its hearing would be in public.)
Conducting such seminal inquiries as the Ginwala inquiry and the JSC hearing in the open, ensures that speculation and gossip is avoided, which enhances the quality of public discourse. It is appropriate to refer to the comments of Lord Salmon in his 1966 report of the Royal Commission on tribunals of inquiry, submitted following the Profumo affair in the United Kingdom: “The public naturally distrusts any investigation carried out behind closed doors.
Investigations so conducted always tend to promote the suspicion, however, unjustified, that they are not being conducted sufficiently vigorously and thoroughly or that something is being hushed up. Publicity enables the public to see for itself how the investigation is being carried out and accordingly dispels suspicion.
Unless these inquiries are held in public, they are unlikely to achieve their main purpose of restoring the confi dence of the public in the integrity of public life. And without this confidence, no democracy can survive”.
These remarks are of clear application to the kinds of inquiries we have seen in South Africa in recent times, and no doubt will continue to see in the future. And that is exactly the point – we must continue to see these inquiries at work, and not be kept in the dark on spurious and unmotivated grounds. Government must function in the sunshine, not the dark. The fabric of our democracy should not be threatened by the kind of secrecy that is reminiscent of our apartheid past.
Dr Dario Milo is partner at Webber Wentzel attorneys. Milo, who also lectures part-time at Wits University, is the author of Defamation and Freedom of Speech, published by Oxford University Press.
- This article first appeared in The Media magazine (September 2008).