As vital as it is to a well-functioning democracy, the principle of “open justice” is probably not something that most ordinary South Africans think about every day. But as investigative journalists, we are obsessed with it.
Which is why we were dismayed to see that open justice was largely ignored by leadership in the judiciary when formulating rules for the running of courts under lockdown – that was, until last week.
“Sunlight is the best disinfectant”
This famous aphorism by Justice Brandeis of the US Supreme Court is often used to illustrate the cleansing effect of transparency: public officials are more motivated to follow the rules and act properly when the harsh light of public scrutiny is on them. This is especially important in the context of courts.
Open justice calls for courts to be accessible to the public. In ordinary, non-pandemic times, this includes allowing the public to attend court to observe public hearings and to access court records, which are considered public documents.
But even in ordinary times, not everyone is able to go to court in person. The media steps in to shed light on court proceedings by reporting on cases that concern the public interest.
The vital role played by the media in ensuring that the public is informed about court proceedings was confirmed by the Supreme Court of Appeal (SCA), which highlighted the interrelatedness of freedom of the press and the principle of open justice.
In Van Breda v Media 24 Limited the SCA wrote: “The media, reporting accurately and fairly on legal proceedings and judgments, make an invaluable contribution to public confidence in the judiciary and, thus, to the rule of law itself”.
All of this underscores the importance of open justice and the media. The question is: does open justice become less important in times of national disaster?
Media access to courts during Covid-19
The courts are among our most powerful tools for promoting transparency and accountability. Yet, at the start of the lockdown period, authorities took a minimalist approach to open justice, suggesting that while it was a concern, it was not a priority.
Directions issued by Minister of Justice and Correctional Services Ronald Lamola at the start of the lockdown designated the media as “persons with a material interest” in court cases and permitted them to access court premises.
While the various High Courts issued directives specific to their jurisdictions in the ensuing weeks, very few of them provided for anything more than the minister’s directions did.
Some divisions of the High Court fared better, such as Gauteng, which had started moving the filing of court documents online at the beginning of this year.
Many courts attempted to continue to hold hearings, either by teleconferencing or through virtual hearings held over platforms like Zoom.
The move to the digital courtroom is long overdue and would ordinarily be welcomed in the context of open justice.
However, when implemented under the cloud of Covid-19, the result was opacity: hearings held over Zoom and the like were known only to litigants and held, in effect, in secret.
Court rolls were only sporadically published on the website of the Office of the Chief Justice (OCJ), without indication of how the matter would proceed.
Further, registrars’ offices were off-limits to journalists seeking access to court records: the only recourse was to phone the under-staffed and over-stretched registrars’ offices and request a copy be scanned and sent electronically. (We tried this on 12 May and are still waiting for the requested record from the KwaZulu-Natal High Court.)
The net effect was that anyone expecting the same degree of openness from the courts as during non-lockdown conditions would be severely disappointed.
But there was no reason for this to be the case: a few simple and relatively inexpensive interventions could restore access to the courts to a degree roughly equivalent to pre-lockdown conditions.
AmaBhungane’s advocacy interventions
Since the beginning of the lockdown, amaBhungane has engaged with court officials, many of whom assured us that access would be granted upon request. To us, this was not enough.
Concerned that over a month of lockdown had gone by without any official directive regarding court access, amaBhungane wrote to Judge President Dunstan Mlambo of the Gauteng Division of the High Court on 12 May, requesting that features that enable open justice in ordinary circumstances be replicated for virtual hearings.
In particular, that:
- the media be given the ability to peruse court rolls in respect of upcoming hearings remotely, such as on the website of the OCJ;
- court rolls be sufficiently detailed so that the media has sufficient time to request access to observe the proceedings;
- where oral argument is dispensed with by agreement between the parties, that the media be allowed to read the written submissions;
- the media be provided with electronic access to court records by request to the Registrar; and
- the media be provided with access to virtual court hearings.
The letter included a proposed draft directive with specific provisions to address these issues.
The Judge President’s response
On 4 June, Judge President Mlambo issued a Protocol Regarding Media Access to Court Proceedings, which goes some way to addressing the concerns we raised in our letter.
It creates a procedure that journalists can use to access court proceedings held virtually. It also provides that virtual hearings should ideally be recorded, and those recordings be made available to the Court and the public via the OCJ’s website, where feasible.
The protocol addresses access to court records only in relation to those records that are already filed electronically (via Gauteng’s CaseLines electronic filing system).
The protocol is a marked improvement from the previous position, where functional media access to court proceedings was treated almost as an afterthought.
The Gauteng Division of the High Court should be applauded for its receptiveness to engagement on this issue, and for taking the first step of issuing the protocol.
That said, if measured against the standard of the open courtroom that we expect under ordinary circumstances, the protocol has some way to go. In addition, the protocol is not given the same status as directives and does not appear on the OCJ’s website, meaning that its reach may be limited, compromising its effectiveness.
Nonetheless, the issuing of the protocol is progress, and only increases our determination to make sure that open justice is observed in all courts during lockdown — and beyond.
Our new immediate goal is to use the example of the Gauteng High Court to call on other courts to issue directives or protocols that specifically address media access to court proceedings under lockdown.
We have also thought about what this means for access to courts in the longer term. At some point, the lockdown will end, but this is no reason to return to business as usual. Rather, the time is ripe to push for more innovative and impactful avenues of access.
Some measures, such as access to court records through the CaseLines system, should be retained post-lockdown and expanded as more and more courts adopt online filing. The digitisation of paper-based records would also be a great benefit to access.
The Eastern Cape High Court should be commended for publishing some of its virtual proceedings on YouTube.
There is no reason that other courts could not do the same, particularly in matters of public interest. This would also help to de-mystify the court process for members of the public who are otherwise unable to step into a courtroom.
We will continue to advocate for these and other measures to bring the workings of the court system out into the open.
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A thin silver lining in the unprecedented Covid-19 crisis is that our systems have been tested for their adaptability in times of crisis.
The courts may have had an imperfect adjustment to the virtual courtroom — but in the upheaval caused by the lockdown, there lies a nugget of opportunity: to create systems that embrace open justice to the fullest extent, to the benefit of our democracy.
*Photo: Johannesburg High Court, 21 February 2018, Ashraf Hendricks/GroundUp.