The Judicial Service Commission denies trying to hide anything by holding a private preliminary inquiry into the complaint lodged by Constitutional Court judges against Cape Judge President John Hlophe.

"Any suggestion that the JSC has got ulterior motives m'lord, by going back to the beginning is to be rejected and dealt with forthrightly with contempt," JSC counsel Bashier Valli told the High Court in Johannesburg on Tuesday during an urgent application by the media to have the inquiry open to the public.

Avusa, the Mail&Guardian and e.tv had argued that the inquiry, a fresh start on the complaint as ordered by a court earlier this year, should be open. They forwarded public interest, transparency and confidence in the judiciary as motivation.

Lawyer Kate Hofmeyr said the JSC had already found there was a prima facie complaint to investigate and could not go back on this now, nor could the media now be excluded, after being allowed to cover it before.

Several judges had already given evidence in public during a hearing in April on their complaint that Hlophe allegedly made an inappropriate approach regarding the case of then ANC president Jacob Zuma, who has since taken office as president of the country.

The case had received wide publicity and there was keen public interest.

Steven Budlender, representing e.tv which wants to feed sound from the inquiry, said: "We have seen five-sixths of the movie, we have heard the evidence of five judges... and we have not heard in public the evidence of the other side."

The JSC believes initial inquiries should be closed to allow the parties to speak freely, and to prevent judges from being embarrassed by frivolous complaints.

Valli said the JSC was acting lawfully and in its best interests to avoid being "mired in squabbles" that question its processes.

He said the hearing would only be a committee of three people — advocate Marumo Moerane, advocate Ishmael Semenya and Gauteng Judge President Bernard Ngoepe out of the 10-person complaints committee, and other JSC members.

There would be no cross examination, no legal evidence, the judges concerned would not be present and although legal representatives would be there, they would not be allowed to speak.

The three just wanted to know more about the matter as their only knowledge of it probably came from the media, and this was "not the most reliable information".

The JSC was not refusing to do anything, or trying to prevent a hearing, or disobeying any order by not allowing an initial inquiry to be open, so it could not be accused of violating administrative justice rights or the constitution.

It was just trying to go about its work "with dignity and decorum".

He rejected a submission that the media had a right to attend, saying: "They are not complainants, not witnesses, they are not any part of the complaint."

He wanted to know if the media thought it should also be allowed to be party to a police investigation.

"It's preposterous m'lord, absurd."

He said the press liked to present itself as "protectors of everything", but had its own bottom line to worry about, "especially when its printing presses are on the backfoot".

He added: "It can also be very voyeuristic, it consists sometimes of people with the unenviable talent of turning serious debate into pornography and this is not what the JSC needs."

John Newdigate, for Hlophe, said Hlophe would abide with whatever the court decided, but felt the case had received widespread publicity, sometimes negative "to the point of being virulent".

Judgment is expected at 8am on Thursday, hours before the JSC's inquiry is believed to be scheduled.

Sapa

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