Excluding the public is wrong!

Councillor Peter Myers’ DA-disciplinary hearing is scheduled to begin tomorrow, Thursday, 12 April 2018, at 9 am in Council Chambers, Clyde Street. We believe that excluding the public and the press from the hearing would be fundamentally wrong, contrary to the requirements of due process in a democracy, and a clear violation of the principles of natural justice. Accordingly, we are reprinting below our submission to the Panel last January, setting out our arguments. Note that, following arguments by Councillor Myers’ attorney, the Ratepayers will also be making an oral presentation tomorrow in support of the proposition that these proceedings must be open to the public. We assume that unless and until the Panel rules in Myers’ and our favour on this issue, the proceedings will be closed.

Our Ref: 23 January 2018
PMJ Open Hearing – 1
Mr Nicholas Gotsell
Manager: Federal Legal Commission & Compliance
P.O. Box 1475
Cape Town
8000
By email: nicholasg@da.org.za
RE: DEMOCRATIC ALLIANCE / CLLR PETER MYERS
Dear Mr Gotsell,

Councillor Peter Myers has been charged by the Democratic Alliance (“DA”) with various instances of misconduct. His disciplinary hearing is scheduled for 5-6 February. We would like to attend the hearing, however, we have been informed that whereas Councillor Meyers has no objection, the Panel have made a preliminary ruling that insufficient grounds have been provided why an open hearing should be held.

We believe that excluding the public from the hearing would be fundamentally wrong, contrary to the requirements of due process in a democracy, and a clear violation of the principles of natural justice.

Myers is much more than a party member. He was democratically elected by the citizens of Ward 10 to represent them on the Knysna Council. If the individuals who have laid charges against Myers have their way and the Panel of Judges votes against him, he will almost certainly be ejected from the DA. If he is ejected from the DA, he will lose his seat as a councillor.
So the potential outcome of this proceeding is much more than an internal, party matter. Instead, it will constitute a reversal of the will of the people who cast their votes for Myers in an open, democratic election. How can a proceeding that thwarts the democratically expressed will of the people, be held in secret? How can the citizens who voted for Myers be denied the right to witness his trial, and make up their own minds about the fairness of the proceedings and the outcome, whatever that may be?

It is no accident that the Bill of Rights in our country guarantees every accused person “the right to a fair trial, which includes the right-… (c) to a public trial…”. The right to a public trial is a core component of due process, enshrined in constitutions the world over. Secret trials are the hallmark of despotic regimes, not open democracies. Surely the DA does not want that sort of regime for South Africa, and would not want to set such an example with this disciplinary hearing?

A public trial is perhaps the most fundamental safeguard against judicial injustice, as was recognised by Enlightenment philosopher Jeremy Bentham, when he said: “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice.”

But there are other compelling considerations as well. It is no accident that s16(a) of the Bill of Rights guarantees “freedom of the press, and other media”. Without freedom of the press, no democracy can survive.

Where trials of political figures are held in secret, the press cannot do its job of witnessing the administration of justice, and reporting on the proceedings to the public. For the press plays a vital role as the conduit through which the public receives information regarding the operation of public institutions. If Councillor Myers’ hearing is closed, the press will have to rely on hearsay for its reports on the proceedings, and for its assessment of whether justice has been done.

Although there are exceptions to the principle that trials must be public, they are limited in number, and narrowly construed. The United Nations International Covenant on Civil and Political Rights represents a widely-accepted codification of the principles of natural justice in these matters. Article 14 of the ICCPR provides:

“The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement … shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

None of these exceptions apply here. Councillor Myers is not invoking his own right to privacy to keep the hearing secret—he supports a public hearing. There are no juveniles or children involved, and there is no matrimonial dispute. To our knowledge, no one is claiming that there are special circumstances where publicity would prejudice the interests of justice.

For all of these reasons, the Knysna Ratepayers Association believes that if justice is to be seen to be done in this case, Councillor Peter Myers’ disciplinary hearing must be open to the public. Accordingly, we request that the Panel amend its initial determination, and rule that the entire disciplinary proceeding shall be open to the public, and the press. We hereby request an opportunity to make oral representations to the Panel in this regard, and ask that this submission be placed before the Panel as a matter of urgency.

The Committee