A victory for open justice

2012-08-11 12:36

Acentury ago, US Supreme Court Justice Louis Brandeis made the statement that “sunshine is said to be the best of disinfectants”. It has long been accepted that court proceedings are in principle open to the public and the media.

The Constitution provides that freedom of expression not only entails the right to express opinions, but also the right to receive and impart information.

And it is precisely in this respect that the media plays a key role in realising the public’s right to freedom of expression.

The Constitution opened up various other forums to the media and thus the public at large.

The proceedings before the Hefer commission of inquiry into allegations against former national director of public prosecutions Vusi Pikoli were broadcast live.

Likewise, the Judicial Service Commission in 2009 was forced to allow the media to cover their hearing into the complaint lodged by Constitutional Court judges against Cape judge John Hlophe.

The boundaries of openjustice were recently again placed under the spotlight by virtue of an urgent court application brought by Media24, Avusa Media and M-Net, seeking access by the media to the National Prosecuting Authority’s (NPA) disciplinary hearing of prosecutor Glynnis Breytenbach.

The NPA opposed the application, arguing that disciplinary proceedings by an employer against an employee are by their very nature private and that the public therefore has no legitimate interest in such proceedings.

But North Gauteng High Court judge Ronel Tolmay disagreed.

She found that the NPA is “no ordinary employer”, but in fact a public institution with a particular constitutional mandate to prosecute crimes “without fear, favour or prejudice”.

Tolmay found when allegations arise that the NPA or any of its members have acted in breach of its constitutional duties, it becomes a matter of “inherent and critical public interest” in which the public has an “undeniable right” to be fully informed.

The court ruled that, given the controversy around Breytenbach’s suspension, the disciplinary hearing could no longer be described as private.

Tolmay emphasised that the presence of the media is necessary to “restore the credibility of the NPA” so as to avoid a “constitutional crisis”.

The print media was given full access to the hearing and, subject to certain restrictions, the broadcast media too.

The numerous media reports over the past couple of weeks, giving a day-by-day account of Breytenbach’s hearing, would not otherwise have seen the light.

The judgment is an important milestone in the development of the law around openjustice.

It is a victory for the right of the public to be fully informed about the functioning of important state institutions such as the NPA.

It also sends a strong message that state institutions are accountable to the public.

The days of justice behind closed doors are over. This judgment is indeed a ray of sunshine in our jurisprudence.

»De Klerk is a media attorney in Johannesburg. He acted on behalf of Media24 in this matter

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