President of Tribunal Ngoepe and Chief Justice Maya ‘still consulting’ on media attendance

UPDATE: SABC is reporting on Sunday morning that Monday’s hearing will deal only with preliminary matters.

BY RAY HARTLE

On Monday, October 7, 2024, the judicial tribunal deliberating over the complaint of sexual harassment against the Eastern Cape Judge President Selby Mbenenge will convene for the first time. But you will not know what happens at the hearing because, at this stage, it will be held in camera, closed to the media and, consequentially, closed to the public.

There will be no livestreaming of the proceedings by any of the electronic media, including the national public broadcaster, the SABC.

There will be no contemporaneous reporting by journalists from other media.

Instead, one of the most significant misconduct investigations by the judiciary into the alleged behaviour of one of its own, will occur without any publicity and without the reporting by independent journalists and members of the media, so that the public can see justice being done.

If the Mbenenge tribunal was regarded by some as a first, crucial test for the new Chief Justice Mandisa Maya, since she was sworn in on September 1, she has failed it.

The JSC Act stipulates that tribunal hearings to inquire into allegations of incapacity, gross incompetence or gross misconduct against a judge, may only be attended by:

• The judge against whom a complaint was lodged, and their legal representative, if one has been appointed.
• The person who lodged the formal complaint against the judge and which is the subject of the hearing, and their legal representative.
• Persons subpoenaed or called as a witness, with or without their legal representatives.
• Employees in the Office of the Chief Justice assigned to provide investigative and administrative support to the tribunal.

However, section 29 (3) of the JSC Act also provides for a determination by a tribunal president, in consultation with the chief justice, that “if it is in the public interest and for the purposes of transparency… all or any part of a hearing of a tribunal must be held in public”.

I wrote to the JSC and the OCJ on September 17 asking – among other questions – what arrangements were in place to accommodate media coverage of the tribunal, how much time had been allocated to the hearing, and what directives had been issued by the president of the tribunal.

On September 19, the secretary of the JSC, Mbali Songca, responded that the hearing had been set down from October 7 to 11.

Importantly, the statement noted that the president of the tribunal hearing the complaint against JP Mbenenge, retired judge president of Gauteng Bernard Ngoepe, was “still in consultation with the Chief Justice as to whether or not the hearing or part of the hearing will be open or in camera”.

In a follow up question on September 23, I asked Songca if, before deciding whether or not the hearing or part of the hearing will be open or in camera, the president of the tribunal or the CJ would invite “submissions from public interest entities, and / or including the media, regarding the desirability of holding the hearing or part of the hearing in open proceedings or in camera.

On September 25 Songca wrote that Ngoepe’s response “is that the parties have indeed been asked to make submissions, and they have done so. As far as the rest of your query is concerned, the response is that the Tribunal does not wish to deal with the matter through the media”.

This response is quite bizarre. It answers a question – relating to the parties to the complaint being invited to make submissions – which I did not ask. And it does not answer the question I did ask – whether public interest entities would be invited to make submissions.

As things stand, we must assume that no public interest entities have been invited to provide input before Ngoepe makes a decision, that Ngoepe and Maya are confident that they require no other input – except that which has been invited from the parties to the tribunal themselves.

On October 3 I wrote to Songca again, asking if a decision had yet been made regarding the proceedings being open or in camera. I pointed out that it would be useful to have a decision ahead of time so that arrangements can be made by journalists intending to attend and cover the hearing.

Songca’s response a day later: “I have been directed to refer you to the email correspondence of 25 September 2024.”

In other words, there will be no journalists at the hearing on Monday.

SABC television news reported early Sunday morning that it “understood” Monday’s tribunal hearing would deal with preliminary matters only, ahead of a future hearing to hear evidence.