Case Summary and Outcome

South Africa’s Court of Appeal affirmed the principle of open justice when it held that court records are, by default, public documents; as such, they must be made available to the public as they are filed, even if court proceedings have not yet commenced.

Facts

The City of Cape Town brought before the Western Cape High Court an application requesting a review of the bidding process undertaken by the South African National Roads Authority Limited (SANRAL) for its selection of Protea Parkways Consortium as its preferred bidder and of Overberg Consortium as its reserve bidder on the N1/N2 Winelands Paarl Highway Toll Project (Project) (para 2). The Project involved “the construction and tolling of principal motorways” and was, therefore, an initiative of great public interest (para 1).

SANRAL provided the required administrative record under Rule 53(1)(b) of the Uniform Rules of Court and marked its documents as being part of either “the non-confidential record” or “the confidential record” (para 2). SANRAL requested that the High Court require that parts of the supplementary founding affidavit that referred to both the confidential and non-confidential records be redacted before it was allowed to be served and filed (para 3). Cape Town argued that the information, in addition to not being confidential, should be made known due to the public interest (para 3). SANRAL argued against the filing of unredacted court documents and placed the information therein as belonging to one of two categories: 1) “information and documentation that needs to be kept confidential until after the filing of SANRAL’s answering affidavit” and 2) “information and documentation that must be kept confidential at all times during the legal proceedings, and thereafter” (para 4). According to SANRAL, information in the first category must be confidential because not doing so would “cause unjustified and unnecessary concern among the general public”; information in the second category, on the other hand, must be kept confidential in order not to “cause harm or damage to SANRAL [and] also to the bidders…the South African fiscus and economy and the general public” (para 4).

Cape Town responded to SANRAL’s concerns by asserting that the type of secrecy SANRAL was requesting was granted rarely and that the disclosure of the information would not cause the level of harm SANRAL implied it would (para 5). The issues before the High Court were whether the information in the supplementary founding affidavit was confidential, whether the disclosure of such information would result in harm to SANRAL, and whether that harm would allow for secrecy (para 6).   The High Court found that SANRAL had not made a case for the relief sought, and therefore dismissed its application (para 7).

However, the High Court continued in its ruling to find that SANRAL’s disclosed administrative record was subject to the “implied undertaking rule,” which had “the effect that no person, including any recipient of the supplementary founding papers delivered…shall be permitted, unless authorised by SANRAL or by the Court, on application to disseminate, publish, or distribute any part of the administrative record, or any part of any affidavit in the supplementary founding papers that quotes or substantively reproduces the content thereof, before the hearing of the aforementioned pending review application” (para 7). The High Court also looked at Rule 62(7) of the Uniform Rules of Court, which it argued supported the implied undertaking rule; according to the High Court, Rule 62(7) “’permits the registrar to give only any party to the cause and any person having personal interest therein…access to the documents in the court file’” (para 9). According to the High Court, “‘public access to the content of the court file in litigious proceedings is permissible only after the matter has been called in open court’” (para 9).

The Supreme Court of Appeal then granted Cape Town’s application of appeal.

Decision Overview

In a decision by Ponnan JA, the Supreme Court of Appeal of South Africa opened its discussion on these facts with the concepts of an “open court” and “open justice” (para 12). Ponnan wrote that open justice, important because it “assist[s] in the search for truth and play[s] an important role in informing and educating the public…enhance[s] accountability and deter[s] misconduct [and] offer[s] an assurance that justice ha[s] been done,” has been established in international instruments, such as the International Covenant on Civil and Political Right, and across several jurisdictions, such as the United States, the United Kingdom, and Canada (paras 12-15). In South Africa, this principle is embedded in the constitution as well as having been affirmed by the Constitutional Court (para 16). In Independent Newspapers (Pty) Ltd v. Minister for Intelligence Services, the Constitutional Court “confirmed that the default position is one of openness and disavowed an approach that proceeded from a position of secrecy” (para 16).

The Court argued that parties are unfairly prejudiced when proceedings are not conducted in public and stated “it will be a dangerous thing for all litigants in both civil and criminal matters, for court documents, as a general rule to be inaccessible and unpublishable” (para 18). The Court reaffirmed that true democracy necessarily requires the right to freedom of expression and that the role the media plays in ensuring that the public is well-informed is a critical one (para 20).

The Court then turned to the lower court’s assessment of the “implied undertaking rule.” After examining the rules implications in foreign jurisdictions (paras 23-26), the Court firmly stated, “[t]he rule is not part of our law” (para 27). Ponnan found that the lower court erroneously—and against its own authority—adopted the rule as applicable to its proceedings (paras 27-30). Ponnan rejected the lower court’s Rule 53 argument (paras 36-38), affirming that the South African Constitution requires “the right of access to information held by the state” in section 32(1)(a) (para 38). He further stated that the Promotion of Access to Information Act 2 of 2000, enacted to give effect to section 32, established “a default position of openness” for state-held documents (para 38). The Court then turned to the subrule in the lower court’s Rule 62(7) argument, which it had interpreted to mean that only those with “a direct legal interest” had the right to access a court file (para 39). The Court rejected this strict interpretation of the rule, finding the rule, whose language reads “any person having a personal interest therein…may at his office, examine and make copies,” to require an interpretation that is “consistent with the unambiguous intent of every other rule in South African courts” (paras 40-42). The Court held that the lower court’s interpretation was not consistent with the Constitution and “severely limits the basic principle of open justice” (para 42).

The Supreme Court of Appeal of South Africa ultimately found that “[t]he animating principle therefore has to be that all court records are, by default, public documents that are open to public scrutiny at all times…any departure is an exception and must be justified” (para 47). Ponnan stated that the lower court’s ruling created “a default rule of secrecy” that impermissibly interfered with the principles of open justice on the ground that it is only through an understanding of the background and issues presented in the papers filed pursuant to a case that the public can be properly aware of and able to analyze and comprehend the scope and effect of the proceedings and of the court’s findings (para 47). Without this level of engagement, both the public and the media would be forced into the role of mere spectators (para 47).