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444 Chapter 20
correct, without having provided the legal basis by which to assess that
correctness, nor a clear analysis and explanation of why this is so. A
second problem is that a clear link is not drawn between the analysis of the
court decisions and the transparency thesis which Klaaren advances.
There is even less critical analysis regarding the decisions relating to
the openness of the JSC hearing, with Klaaren contenting himself with
setting out a concise overview of the various decisions. But again, more
critical engagement with some of the issues would have been welcome. For
instance, regarding the court application by various media organisations to
open the JSC hearings, Klaaren does not link this to his comments about
‘media transparency’. He notes the JSC’s arguments that the dignity of the
process needed to be protected, but does not assess this argument in light
of the different theories of transparency which he later discusses. Klaaren
then notes Willis J’s finding that the dignity of the judiciary would be
enhanced by the hearings taking place in public. What are the implications
of this finding for Klaaren’s theories of transparency? Is this an example of
‘media transparency’, since this was the outcome of a review brought by
media organisations, and thus presumably according with their vision of
transparency? Or is it an example of’ ‘judicious transparency’? If the latter,
why? What distinguishes transparency of either kind in this instance?
Similarly, the decision by Malan J 14 to open a preliminary hearing which
the JSC had closed does not receive comment. And yet, one might ask
whether this was it a good example of transparency – and of what kind?
Were there any special features of a preliminary hearing which might
impact on the analysis?
These issues suggest that there are significant unanswered questions
about the exact content and parameters of the principle of openness
advocated by Klaaren which, regrettably, the paper never delineates
amply.
3 Concluding comments
Klaaren disavows any comment on whether or not the laying of the
complaint by the Constitutional Court judges was ‘politically wise or
ethically necessary’, since the issue is said to be beyond the focus of the
paper. Nonetheless, a long paragraph is devoted to it and, in light of this,
it was perhaps necessary for the author to give some sense of his own view
on whether or not the complaint was advisable or justifiable. Klaaren
suggests that the SCA judges indicated that, as an ethical (rather than a
legal) matter, the Constitutional Court judges’ actions might be judged in
a more negative light. How is this position reconciled with the claim that
there is judicious transparency in the issuing of the media statement?
14
Mail and Guardian Limited & Others v Judicial Service Commission & Others (09/30894)
[2009] ZAGPJHC 29 (29 July 2009).