Cllr Myers hearing starts today

Peter Myers DA disciplinary hearing started today. Both sides presented their arguments on why the proceedings should be open or closed. The KRA argued that the proceedings should be open. Their brief today may be found below. Footnotes have been omitted in the interest of brevity. The panel is scheduled to rule on this point first thing tomorrow.

Oral argument before the DA Panel in Councillor Peter Myers’ disciplinary hearing, presented today, Thursday, April 12th, on behalf of the KRA

My name is Christopher Gould, and I’m here today as chairman of the Knysna Ratepayers Association to request that you exercise your discretion to rule that the disciplinary hearing of Councillor Peter Myers be open to the public. I should point out that my request has the backing of our entire 10-person committee, with no dissenters.

The Rules of Disciplinary Hearings in terms of Chapter 11 of the Federal Constitution do not address the issue whether hearings of this type should be open or closed to the public. However, the possibility that such hearings can be open was clearly recognized by Mr. James Selfe, the chairman of the DA’s Federal Executive, when, with regard to another DA disciplinary hearing—that of suspended Cape Town Mayor Patricia de Lille, he recently said that the DA, and I quote: “doesn’t have a particular problem“ with the proceedings being open. Selfe said: “We accept that there are arguments both in favour of a closed session and an open session in view of the public interest in the case. In the end, that decision will have to be taken by the panel. It’s not a decision that the party [takes].”

Why, then, should the proceedings in the case against Councillor Peter J. Myers be open?

Firstly, for the very reason cited by James Selfe in his comment above: public interest in the case. On January 31st, we posted our written submission to this panel in favor of a public hearing on our Knysna Ratepayers Facebook page. Since then, it has garnered 2,252 views. In Knysna, that is a very impressive score. In fact, it is the second largest number of views we have had for any post on our Facebook page so far this year—even more than our posts regarding Councillors’ decision to pay themselves the maximum allowable remuneration == and is surpassed only by our post on the ongoing pollution of the Knysna estuary. The DA’s dissatisfaction with Councillor Myers and the steps taken against him have also been extensively reported in the local press, notably on October 12th, 20th and 25th 2017, and February 1st, 2018 . If it is open to the public, we expect that this proceeding itself will also be broadly covered in the print and social media. In short, there is and will continue to be considerable public interest in this case.

Secondly, because of the potential impact of this proceeding on a relationship that is far more important than the one between Peter Myers, and the Democratic Alliance. Whilst closed proceedings may be appropriate in matters that exclusively involve a relationship between a group and one of its members—say, a member of a bridge club caught marking the cards– this is not such a matter. Peter Myers is first and foremost an elected public representative, accountable to his constituency, and only then, a party member. This proceeding has the potential to result in Myers’ removal as an elected representative. That outcome would destroy the relationship between Myers’ and those who voted him in on a reform ticket.

In a perfect world, those constituents in fact would be the ones to decide whether they want to terminate their relationship with him, their representative. That being impossible within the context of this proceeding, I submit that they should at least have an opportunity to observe the proceedings, and if they cannot attend personally, to read about them in the press.

In other words, I submit that this Panel would be wrong to take a narrow, formalistic view of this hearing as a purely internal, party matter, when its potential outcome is so much broader than that. Myers was elected as a reformer. If this reformer is to be stripped of his mandate, those who elected him to work toward reforming the Knysna administration, to finally set us on the path to clean governance and effective service delivery in this town, are at least entitled to an opportunity to witness those proceedings.

Thirdly, because, like most constitutions, our Constitution looks with disfavor on judicial or quasi-judicial proceedings that are conducted in secret. It is no accident that our Bill of Rights 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. A public trial is perhaps the most fundamental safeguard against judicial injustice. Admittedly, Councillor Myers is not faced with a potential deprivation of liberty or a fine, as he would be if he were being tried for a criminal offence in a court of law, where he would automatically have the benefit of the due process guaranteed by the Constitution. However, he does face the possibility of substantial reputational damage, and the loss of a vested right which was not acquired from the DA, but rather from the people he represents—the right to represent them up to the conclusion of his term of office. For that reason, I submit that the due process safeguard of a public hearing should be applied to this proceeding as well.

And then there is freedom of the press, guaranteed by section 16(a) of the Bill of Rights.
When 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. Should the press be denied access to a case that has aroused such public interest?

Finally, there are the principles of natural justice. International conventions codifying those rules stress the importance of a public hearing. Article 6(1) of the European Convention on Human rights provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing.” Similarly, article 14 of the United Nations International Covenant on Civil and Political Rights 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.” None of those exceptions apply here. And Councillor Myers himself has asked that these proceedings be public.

To sum up: Mr James Selfe, the chairman of the DA’s Federal Executive, has recognized that a panel constituted like this one has discretion to rule that a disciplinary hearing be open to the public, and recently said that he “doesn’t have a particular problem” with such a ruling. Mr Selfe identified public interest as an important factor in making such a determination, and as we have shown, there is considerable public interest in Knysna in these proceedings. Secondly, the DA is not a bridge club, and it would be wrong for this Panel to take a narrow, formalistic view of this hearing as a purely internal, party matter, when its potential impact is so much greater. The key relationship at issue here is not the narrow relationship between Councillor Myers and his party, rather, it is the relationship between Myers and the people who elected him. And although they cannot determine the outcome, they should at least be given an opportunity to witness the proceedings. Finally, the constitutional principles of procedural due process and freedom of the press, and the rules of natural justice, both stress the importance of a public trial or hearing.

For all of these reasons, I respectfully request that this Panel rule that the remainder of these proceedings shall be open to the public.

Respectfully submitted,

Christopher Gould
Chairman, Knysna Ratepayers Association