Johannesburg Bar grants media access to Menzi Simelane disciplinary

2014-02-26 17:14

In a ground-breaking decision by the Johannesburg Bar, two media houses have been granted access to the disciplinary inquiry of Advocate Menzi Simelane, the former director-general of the justice department.

This is the first time the Bar council has opened a disciplinary hearing to the media.

In the decision, handed down today by the advocates appointed to conduct Simelane’s inquiry, the panel unanimously ruled that “the constitutional imperative of open justice is applicable to disciplinary enquiries of the Bar council”.

The inquiry, which consists of advocates Sias Reynecke, Danie Berger and Dali Mpofu, appointed by the Bar to preside over the matter, ruled that the “Johannesburg Society of Advocates is much more than an ordinary voluntary association. Its members perform an essential role in the administration of justice, interacting with members of the public and the judiciary in all the courts on a daily basis ... there can be no doubt that the society and its members have a very public profile”.

Members of the inquiry also ruled that it “is certainly in the public interest that the manner in which the society disciplines its members is not shrouded in secrecy”, arguing if the process was not transparent “conspiracy theories will thrive”.

“We therefore conclude that the default position concerning disciplinary enquiries of the Bar council must be that the press is entitled to attend the proceedings and to report thereon, unless the circumstances of the particular case justify a denial of access.”

Lawyers representing City Press, Beeld, Rapport, The Times and the Sunday Times had argued that the default position should be that such hearings are closed but could be opened to the press upon application.

But the disciplinary hearing has decided in favour of pro forma prosecutor Mike Hellens’ argument.

During the hearing of arguments for media access in October, Hellens said the Bar had decided that its practice of holding disciplinary inquiries behind closed doors, especially after 1994, had “simply been wrong”.

He argued that the default position should be that such hearings were open to the press, but could be closed.

The inquiry’s members did not agree with Simelane’s argument that a publicised hearing would unjustifiably violate his constitutional rights to dignity and privacy, finding that the charges against Simelane had “no bearing on his privacy but on his conduct and testimony in the public sphere”.

“It is not objectively reasonable for a member of society to feel insulted by the press reporting on the proceedings of an inquiry by a fellow advocate.”

The members of the inquiry have, however, asked that online commentary sections be turned off for stories on the hearing and have asked that media houses provide details of the Twitter identities of those assigned to cover the case.

This is so that they can be “called to account” for tweets that unlawfully defame Simelane.

The disciplinary charges against Simelane relate to his testimony before the Ginwala Commission of Inquiry.

If the misconduct charges are proven, it could result in a recommendation that Simelane be disbarred.

In the disciplinary enquiry of the Johannesburg Bar Council into the conduct of Adv Menzi Simelane held at...

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