Global Freedom of Expression

Mail and Guardian Ltd v. Judicial Service Commission

Closed Expands Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    July 29, 2009
  • Outcome
    Injunction or Order Granted
  • Case Number
  • Region & Country
    South Africa, Africa
  • Judicial Body
    First Instance Court
  • Type of Law
    Administrative Law, Constitutional Law
  • Themes
    Access to Public Information
  • Tags
    Public Officials

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Case Analysis

Case Summary and Outcome

The Judicial Service Committee’s decision to hold a closed preliminary hearing and investigation into the “incapacity, incompetence or misconduct” of Judge President Hlophe was set aside. The court ordered a new hearing, which would be open to the public and the media and would allow the media to make audio recordings of the proceedings.


Two groups filed applications before the High Court. The first application came from the Mail and Guardian and made two requests: 1) that the decision of the Judicial Service Committee (JSC) to appoint a subcommittee conduct a closed inquiry into allegations against Judge President Hlophe be reviewed and set aside or, in the alternative and 2) that the decision be set aside to the extent it denied the public and media access to the preliminary investigation into the judicial misconduct of Judge President Hlophe (paras 1, 10). The second application was brought by etv (Pty) Ltd and esat (Pty) Ltd, which also requested that the JSC decision barring the public and the media from the preliminary investigation be set aside, but also requested that the media be allowed to use audio recording equipment so they could broadcast parts of the preliminary investigation on their news programs (para 2).

The events leading to the filling of these applications began in July 2008, when the JSC “determined there was a prima facie case of incapacity, incompetence or misconduct against the Judge President” (para 7). The JSC announced it would accept written submissions from interested parties as to whether the complaints against the Judge President should be made public and whether the media should be allowed access, but decided that the hearing would be closed (para 7). Judge Willis set this decision aside, holding that the hearing would be public and that etv would be allowed to set up recording equipment (para 7). Thereafter, in April 2009, the hearing took place with the media and public present (para 8). The Judge President then appealed this decision, and Judge Tsoka found the April proceedings “unreasonable and unlawful” (para 9). After Tsoka’s ruling, the JSC decided to begin the hearing de novo as a closed hearing (paras 10, 11).

Decision Overview

The High Court first looked to the Promotion of Administrative Justice Act (PAJA) to determine if the JSC’s decision to bar the public and the press from the preliminary investigation of Judge President Hlophe fell within the scope of its powers (para 15).  The PAJA Rules require a three-stage procedure to bring cases for incapacity, gross incompetence, or gross misconduct (para 15). First, Rule 3 looks at “whether prima facie the conduct complained of would, if established, amount to such incapacity, incompetence or misconduct as may justify removal of the Judge” (para 15). Next, under Rule 4.3, in commissioning a preliminary investigation, this sub-committee “may hear evidence and report to the JSC regarding the further conduct” (para 15). However, Rule 4.3 is silent as to whether the preliminary investigation should be open to the public, and therefore, JSC’s discretion is inferred (para 15). The final stage falls under the purview of Rule 5, which prescribes the means for initiating a formal complaint inquiry (para 15). Under Rule 5.6, 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” (para 15).

Under South African jurisprudence, “[a]ny limitation on the right of the media must be in accordance with s 36 [of the Constitution] and proportional to the purposes which the limitation seeks” (para 19). Judge Malan began his analysis by reiterating the importance of the media’s right of access to judicial proceedings (para 17). To emphasize this relevance, he turned to South African case law, quoting the Constitutional Court’s decision in South African Broadcasting Corp Ltd v. National Director of Public Prosecutions, where the Court stated, “[t]he need for public information and awareness flows from the nature of our democracy…[t]he fact that courts do their work in the public eye is a key mechanism for ensuring their accountability” (para 17). Malan cited Sections 195(1)(g), 34, 41(1)(c), 59(1)(b), 52, 182(5), and 188(3) of the Constitution as provisions that support “a preference for openness in the conduct of public affairs” and reaffirmed the importance of the presence of the media to serve as a “watchdog of society [to keep] the public informed of matters of public interest” (para 19).

Malan, turning to the decision to bar the public and the media in this instance, found that the JSC had no “appreciation of the impact of their decisions on the constitutional rights of those affected” (para 19). Although he acknowledged the Judge President’s argument asserting the need for confidentiality in cases involving judicial conduct during preliminary stages, Malan rejected that this argument was apropos here because the case had “long progressed beyond the stage of preliminary investigation” (paras 20, 21). Malan found that, because there was already a prima facie determination of “incompetence, incapacity or misconduct,” the identity of the judge in question was already known, and the details were already in the public domain, the “public deserves access to the further proceedings” (para 21). He argued that because of the “immense public interest” surrounding this case, it was necessary that the public maintain access to the proceedings so as to help further dispel the negative public perceptions of the judiciary (para 22). Additionally, further exclusion of the media would lose sight of the fact that there had already been open hearings where Justices had already testified on the matter (para 23).

The High Court found that there was no reason to make the investigation confidential, and that there was “hardly a suggestion that the JSC took freedom of expression and the media into account at all in coming to their decisions.” Therefore, the High Court held that the JSC’s decision to hold the preliminary hearing/investigation into the conduct of Judge President Hlophe as closed to the public and media should be set aside (paras 24, 26). The High Court directed the JSC to allow media to attend the preliminary hearing/investigation and to permit the media to use audio recording equipment to broadcast the proceeding (para 26).

Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

Judge Malan set aside the Judicial Service Commission’s (JSC) decision to close Judge President Hlophe’s preliminary hearing/investigation to the public and the press and admonished the JSC, saying there was “hardly a suggestion that the JSC took freedom of expression and the media into account at all in coming to their decisions” (para 24).  This decision sets a strong precedent for the importance of freedom of expression and goes a long way to articulate and solidify the calculus that must be made within the South African judiciary when deciding cases that implicate freedom of expression, the rights of the press, and the right of the public to have access to information.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Official Case Documents


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