THE COURT ORDERLY

THE bodies charged with investigating the acquisition of arms were already shrouded in controversy when they decided to hold a public inquiry.

Allegations of political pressure and a publication containing allegations of serious impropriety regarding the investigation of private conduct of the public protector, even if unproven or baseless, should have guaranteed the most punctilious effort to ensure an inquiry that would engender public confidence. Instead, the decision to transform an information-gathering exercise into a public hearing was itself a peculiar one. What added to the suspicion about the nature of the hearing was the embargo placed on the press.

When permission was sought to broadcast proceedings live on radio and television, the authorities refused. Ironically, among the reasons given were that such broadcasts might negatively affect witnesses, constitute an invasion of their privacy and compromise security. Yet these were the very reasons why the whole idea of holding such hearings in public was considered to be so odd.

The decision to allow the public to attend the hearings but not to hear them on radio or see them on television finally reached the courts. Judge Eberhardt Bertelsmann, on behalf of a full bench of the Pretoria High Court, found that the media's right to freedom of expression had been curtailed by the decision of the authorities.

So the question arose whether their right had been justifiably limited.

The press argued that once the public protector decided to hold the inquiry in public, he was obliged to give effect to their constitutional right of freedom of expression.

Judge Bertelsmann and his colleagues were unpersuaded. As the judge wrote: "It is clear that the panel adopted a cautious approach to the task of striking a balance between the applicants' fundamental right to use tools of their trade and the concerns of other parties involved in the investigation.

"The tribunal may have placed a stronger emphasis on the need to protect witnesses and to preserve the integrity of evidence than another tribunal might have done under similar circumstances.

"Had this been an appeal, I might well have come to the conclusion that the tribunal erred on the side of circumspection. On review, however, it cannot be said that the tribunal exercised its discretion in a fashion which is not rationally related to the purpose with which the powers with which the tribunal has been entrusted have been given to it."

This is a very strange approach to a constitutional challenge. The challenge was that the media's constitutional right to freedom of expression had been unjustifiably limited.

The reader may well ask about the difference between this case and the case in which the King commission on cricket and former cricket captain Hansie Cronje were compelled to permit media coverage. Judge Bertelsmann's answer is that King "dealt with allegations of bribery in relation to the cricket sporting code and could consequently not be logically extended to the investigation in this case." Presumably the difference discovered by the Transvaal judges concerns the need for the public protector to enjoy confidentiality in his work.

There are two answers to this conclusion. First, it forgets that it was the public protector who proclaimed the need for transparency in this inquiry. Second, if there is a factual distinction between King and Selby Baqwa, the public protector, this cannot explain why the legal test for constitutional review was so differently conceived in the two cases.

It is regrettable that the court adopted so deferential an approach to the decision of the public protector. The ability of the media to report fully and the opportunity that the citizenry may gain the maximum of information on matters of public interest is a precious right that should not be limited so easily in a democracy.

In this case it was the public protector who chose to go the open route. He should not have been allowed to change his mind for the reasons that the court accepted. As with so much in the arms debacle, it is the public who is the loser.

With acknowledgement to Business Day.