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Response to Klaaren 445
Furthermore, the characterisation of the issue as ‘ethical’ as opposed to
legal might itself be open to question. In footnote 31, Klaaren sets out the
extract from the SCA judgment in Langa v Hlophe, which provides the basis
for the suggestion that the complaint might be judged negatively from an
ethical point of view. It is notable that the SCA relied on the constitutional
injunction that all organs of state, including the judiciary, must ‘assist and
protect the independence, impartiality, dignity, accessibility and effectiveness
of the judiciary’. This is derived from section 165(4) of the
Constitution, and calls into question drawing a distinction between how
the complaint is viewed ethically and legally for, if the basis for an
argument that the judges’ conduct was ethically questionable was found in
the Constitution, is it not the case that such conduct is therefore also legally
suspect?
Klaaren concludes that judicious transparency can be seen in the
issuing of the Constitutional Court media statement for three reasons: the
importance of the subject matter, because it was a ‘statement by judges
about a judge and about judging’; the fact that it was done by judges and
thus ‘constituted a judicial practice’, rendering the judges potentially liable
for defamation; and in the ‘proper context’, beyond the narrow reasoning
of the SCA, taking into account the role of national intelligence agencies
and constituting ‘a broader attack on judicial independence’. Regarding
the latter ground, Klaaren remarks that ‘[t]his is judicious, appropriately
not as a judicial function, but rather as a non-judicial decision taken by
those entrusted to deciding judicially’. It is unclear how, particularly in
light of the arguments he has been advancing up to this point, Klaaren
regards a non-judicial decision as being an example of judicious
transparency. It may suggest, as certain other parts of the paper do, that
what determines judicious transparency is not the nature of the how of
transparency is exercised that makes it judicious so much as the identity of
who is making the transparency decision.
In which case, while perhaps less intellectually stimulating an exercise,
an approach that sought to define the parameters for judicial transparency
– such as openness around interviewing and application for judicial office,
conflicts of interest and private financial holdings – might have made for a
more useful contribution to both the theoretical understanding and
application of the principle of transparency at a time when the demand for
information disclosure as of right is growing and the dangers of secrecy –
in the judiciary as in all sites of public and private power – more and more
obvious.
What might the foundations of such a theory of ‘judicial transparency’
be? It is beyond the scope of this paper to develop a detailed theoretical
framework, but some basic components may be identified here (in the hope
that they might provoke further debate and thought). Firstly, the criteria
for judicial appointment ought to be clearly established and openly known.
Despite the JSC having been established under the 1996 Constitution,