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442 Chapter 20
the context of judges being judicious in their application of the principle of
transparency, it turns out that since it is the manner of the application and
not the identity or office of the implementer of the principle (in Klaaren’s
case, the judge), perhaps it could be argued that the concept, if meritorious,
could be applied to any context where the principle of transparency, or
open justice, was being considered?
This may only serve to take one back to first principles of the right of
access to information: that the right is no more absolute than any other
right, and that legally permissible exemptions to the right will exist, in the
public interest, based on a relationship between the exemption and an
understanding of the harm to the public interest that would be caused by
disclosure of the information. In this interpretation, it is hard to see what
the notion of ‘judicious transparency’ would add. However, Klaaren
positions his argument not in terms of the right of access to information,
but in terms of the looser idea of ‘transparency’, which may or may not
overlap with a legal right of access to information.
Indeed, while it may at first sight appear merely to add to the sense of
bewilderment, the final words of the key paragraph in Klaaren’s paper,
identified above, may turn out to be the most incisive: ‘As for its
substantive value, the substance of that value is indicated by the three
rights from which the concept of open justice has been constructed’
(freedom of expression, access to information and access to court). Thus,
the idea emerges not so much as a principle or doctrine, but as a value that
should infuse judicial decision making when applying the principle of open
justice. In other words, stripped down, judicious transparency is the
sensible and prudent application of open justice.
2 ‘Judicious transparency’ in practice
Klaaren’s first port of call is the media statement issued by the
Constitutional Court announcing its decision to lay a complaint against
the Judge President of the Western Cape High Court, Hlophe JP. He notes
that Hlophe JP ‘was not appraised of the allegations or their source’; ‘was
not asked for his version or comments’; ‘received no effective prior notice
of the intention to lodge the complaint’; and ‘was not told of the intention
to issues a media statement’. Klaaren notes further that the general public
were not given any details about the complaint (the media release having
been automatically sent to subscribers to the court’s electronic information
system), and were ‘left with nothing more than the knowledge that a
complaint with serious implications had been lodged’.
Thus, while the decision of the Court to release the media statement
was probably neither unlawful nor improper, it may well have been
imprudent and, therefore, injudicious. Indeed, if so, it would have been
interesting for Klaaren to apply his own understanding of ‘judicious