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Response to Klaaren 443
transparency’ to the decision. Instead, he turns to two court decisions and,
while there are comprehensive and clear explanations as to what the courts
found, the analysis only hints at a more interesting engagement and
critique. Concerning the courts’ treatment of the issuing of the media
statement, Klaaren notes that the judgment of the South Gauteng High
Court was ‘somewhat convoluted’, and notes the division of the judges,
but does not discuss how either the majority or the minority arrived at their
decisions. Beyond noting that the Court ultimately decided in favour of
Hlophe JP, no basis is set for the subsequent discussion of the Supreme
Court of Appeal (SCA) judgment.
The SCA judgment receives more attention, with Klaaren pointing out
that the SCA identified two distinct questions for consideration, one being
whether the media statement was unlawful for publishing the fact that a
complaint had been made to the JSC and, second, whether Hlophe JP
should have been heard prior to the complaint being made. Klaaren
observes that the High Court had viewed the laying of the complaint and
the issuing of the media statement as one issue, and had thus not dealt with
the ‘precise question of publication’. Klaaren comments that the SCA
‘clearly linked’ its decision on the lawfulness of the publication with the
issue of the lawfulness of the laying of the complaint, and points out that
the SCA’s reasoning is ‘significantly circumscribed’, being focused on the
need for public disclosure of the complaint and the circumstances
surrounding it, in order to protect the independence of the Constitutional
Court and the integrity of the administration of justice. Klaaren notes that
‘[t]his is an argument based on the Court’s core judicial function’, but sees
the statement as also suggesting that the Constitutional Court thought it
likely that the incidents would become known, and ‘thus did not appear to
have total confidence in the informational integrity of its own decisionmaking
processes’. Klaaren concludes his discussion by noting that the
appeal turned on the SCA’s finding that the possible truth of the allegation
had to be considered in determining the lawfulness of the publication of the
media statement, and thus ‘without actually examining or determining the
truth of the media statement, the SCA was able to determine the statement
not to be unlawful’.
This is an interesting framing of the decision, but unfortunately
Klaaren does not develop his analysis of it much further. There are hints at
a more provocative engagement with the Court’s reasoning than the paper
actually provides. Despite his careful analysis of the decision, Klaaren does
not disclose initially whether he agrees with the SCA or not, although in
part three of the paper he asserts that ‘[t]he final legal determinations’ – one
of which must be the SCA’s decision – ‘were correct as a matter of law’.
An analysis of the SCA decision might have benefited from some linking
of the decision to previous case law. For example, the lawfulness of the
publication of the complaint could have been considered in light of existing
South African case law on defamation, but no such context is given. This
becomes problematic when Klaaren asserts that the decisions were legally