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440 Chapter 20
freedom of expression and the right to open judicial proceedings (including
rights of both public trial and access to court), which he defined as ‘the
right to open justice’. 5 Moseneke DCJ identified this systemic requirement
of openness as being grounded in founding values of the Constitution,
‘which enjoin our society to establish democratic government under the
sway of constitutional supremacy and the rule of law’, in order to ‘ensure
transparency, accountability and responsiveness in the way courts and all
organs of state function’. 6
The right to open justice informs ‘the media’s right to gain access to,
observe and report on the administration of justice’, but Moseneke DCJ
also noted that the cluster of rights which constitute the principle of open
justice ‘derive from the Bill of Rights and that important as these rights are
… they are not absolute’. 7 Moseneke DCJ pointed out further that it is not
unusual for democratic societies to limit open court hearings to protect fair
trial rights or the rights of vulnerable groups. 8
Despite, or perhaps because of, Klaaren’s passing mention of the
judgment, the reader is not exposed to the line of thought that flows from
the development of the idea of open justice in the Independent Newspapers
case. Klaaren does not explain exactly what this notion of open justice is,
and the precise way in which it is furthered by judicious transparency, or
how the two principles are connected. One senses that Klaaren is onto
something but, tantalisingly, the reader is left to his or her own devices in
making sense of the gaps in the line of argument (which may not be an
entirely bad thing).
Whilst Klaaren identifies the concept of open justice as deriving from
constitutional rights of freedom of expression, access to information and
access to court, he does not explain what specifically is derived from these
rights, and thus what the precise content of this principle of transparency
is. This complaint is not mere pedantry, for the lack of a clearly developed
argument makes a clear understanding of the concept of judicious
transparency difficult. For example, the Independent Newspapers judgment
deals specifically with the right of media coverage of and access to the
administration of justice as flowing from the principle of open justice. At
face value, this appears as if it would be relevant to the concept of ‘media
transparency’ also discussed by Klaaren, yet the principle of open justice is
expressly linked to, and used to define, judicious transparency. A further
issue is that, whilst the Court identifies possible limitations on the rights
comprising open justice in the context of open court hearings, Klaaren
does not expressly consider how and to what extent limitations may be
5 Independent Newspapers (n 6 above) para 39.
6 Independent Newspapers (n 6 above) para 40.
7
Independent Newspapers (n 6 above) paras 40 & 44.
8 Independent Newspapers (n 6 above) para 44.