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438 Chapter 20
JP, and decisions by the JSC to hold closed hearings. Both events were the
subject of subsequent court decisions. Klaaren sets out to ‘cover the
expressed reasoning in these events’ and the ‘underlying situation’ as
publicly available.
Framed to avoid personalising the issues as being ‘a for or against
decision regarding Hlophe JP’, the analysis is especially welcome in this
respect. As with so much of the current South African political discourse,
the public debate of the issue was generally not characterised by either a
nuanced or dispassionate examination of the transparency issues, but often
personalised and partisan assumptions of positions for or against Hlophe
or the judges of the Constitutional Court.
It remains to be determined, however, how far Klaaren’s analysis goes
in shedding light on the underlying transparency issues. We suggest that it
does not go as far as it might. Take the bulwark of Klaaren’s analysis, the
concept of ‘judicious transparency’: What does this term in fact mean?
And is it a helpful concept? Klaaren does not really provide answers to
these questions; it is unclear exactly how the concept is to be defined and,
whilst Klaaren makes it clear that he regards the two legal decisions central
to the paper as correct, it is not clearly established why he believes this to
be so.
1 What is ‘judicious transparency’?
At first reading, the exact meaning of ‘judicious transparency’, as
advanced by Klaaren, is elusive and somewhat enigmatic, and the
explanation fragmentary. The use of the word ‘judicious’ is not that of its
plain language usage, namely, sensible and prudent, and ‘having or done
with good judgment’. 3 But nor does Klaaren mean ‘judicial’. Presumably
because the expression ‘judicial transparency’ would imply ‘transparency
by judges’ or transparency within the judicial branch of government, he
avoids this phrase though it seems reasonably clear that his application of
his own nascent principle of ‘judicious transparency’ is closer to ‘judicial’
than it is to the plain language ‘judicious’ because it is primarily concerned
with the judicial implementation of another principle, namely that of ‘open
justice’.
In turn, the meaning of ‘open justice’ has not been explicitly set out;
the meaning of the ‘practice of judges’ being ‘a particular form of
transparency’ is unclear (does this mean judicious transparency is limited
to decisions taken by judges, and has no application outside that sphere?);
and quite what content is derived from the relevant constitutional rights is
not clearly established. As to Klaaren’s argument that it is the ‘manner of
3 South African concise Oxford English dictionary (2007).