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Response to Klaaren 441
imposed in the case of judicious transparency (although he evidently does
not see judicious transparency as being unlimited transparency).
Indeed, the explanation becomes increasingly vague, with one of the
other sources for judicious transparency being identified as ‘the direct
implementation by judges of the constitutional principle of openness’.
How this constitutes judicious transparency is again rather obscure,
particularly since, as already discussed, the precise scope and content of
the constitutional principle of openness has not been established. Klaaren
does provide reference (in footnote 22) to an article in which he subjects
the Court’s decision in Independent Newspapers to detailed and careful
analysis, and provides deeper discussion of the concept of open justice. 9 In
this article, Klaaren notes the significance of open justice in South African
society, but also that ‘openness has not been given much attention thus far
in the South African constitutional project’. 10 Nonetheless, all four
judgments in the Independent Newspapers case are, in Klaaren’s view,
essentially coherent within the framework of open justice. 11 Klaaren also
sees great significance in the fact that the subject matter of Independent
Newspapers were court records and documents in respect of which
intelligence agencies had made national security claims – such matters are
said to be the ‘heartland’ of open justice, since ‘courts and the public are
the classical articulation of civil society’. 12
But is it the fact that it is courts or other such bodies acting which is
important, or the nature of their actions? Noting that openness was at the
core of many (then) current political disputes, Klaaren comments that a
relevant aspect of open justice is ‘the extent to which the concept can be
used to interrogate the judiciary’s own practice’. 13 This statement is
echoed in the key paragraph of Klaaren’s original piece, which states that
‘[a] practice of judges related to demands for openness, judicious
transparency is a particular form of transparency’ – so it is a ‘judicial
practice’ – which is not concerned with the ‘individual dignity of any
particular judge’ – so it is not about judicial transparency (as noted above) -
but that the ‘manner of implementation’ is ‘what makes it particularly
judicious’ – implying that, in fact, it is the nature of the practice, or
implementation of the principle of openness, that is what makes it
‘judicious’. In other words, we are back to the plain language meaning:
Judicious transparency is where a judge applies the principle of
transparency in a prudent and sensible fashion, showing ‘good judgment’,
that renders it ‘judicious’. It is the juxtaposition of the notion of ‘judicious’
with judicial practice that is confusing. While the argument is framed in
9 J Klaaren ‘Open justice and beyond: Independent Newspapers v Minister for Intelligence
Services (In re: Masetlha)’ (2009) 126 SALJ 22.
10 Klaaren (n 11 above) 32.
11 As above.
12
Klaaren (n 11 above) 34.
13 Klaaren (n 11 above) 32.