In a strange turn of events, the Western Cape High Court on Thursday 28 August dismissed SANRAL’s application to keep the documents and proceedings concerning the proposed tolling of the N1 and N2 in the province secret, but explained that the court rules meant that the file was not open to the public anyway. What does it all mean?
In fact, SANRAL was actually unable to convince the Court that the disclosure of all or some of the documents would be prejudicial to it. SANRAL’s argument was that they didn’t want the documents containing the City’s version of events in the public domain until their own version was.
SANRAL apparently merely wanted to avoid premature publicity in relation to information obtained by the City of Cape Town:
This question about whether court files should be open in general wasn’t actually the main focus of the arguments, as I understand it. The civil society amici (friends of the Court) were asked to leave the Court while the matter was argued, so I am working on conjecture, to some extent, but I understand the essence of the two-day argument was whether or not there was information in the papers that should be kept secret – essentially, was anything actually bad going to happen if the documents were released?
But the Court took another approach in coming to its decision. The Court determined that the documents should remain sealed until such time as they are presented in open court in main review proceedings, which have yet to be scheduled. This is due to a rule called the ‘implied undertaking’ rule. The effect of this is that, until documents are presented in open court, no journalist or other interested party can access the documents, except on a formal application to court.
The current practice in the Cape High Court is that anyone can go and get the legal documents in a case from the court file. It has always been assumed that these documents are public.
This judgment, however, says they are not public, until the matter is disposed of. The judge has told the registrar not to let anyone see the court files, which they previously could see.
The court considered the dicta of Moseneke in the judgment, from which I quote:
From the right to open justice flows the media’s right to gain access to, observe and report on, the administration of justice and the right to have access to papers and written arguments which are an integral part of court proceedings subject to such limitations as may be warranted on a case-by-case basis in order to ensure a fair trial. Sec 41 
He also says:
I agree with the submission made by Independent Newspapers that ordinarily, the starting point is that court proceedings and so too court records must be open to the public…Once the documents are placed before a court, they are susceptible to its scrutiny and direction as to whether the public should be granted or denied access.
So, the judge in the SANRAL matter asks, when are the “documents placed before a court”? This question takes us all somewhere entirely unexpected. He answers: only when the matter is heard.
The way the logic works is this. Let’s say we are having an argument about a contract. If we don’t agree on what actually happened, we have to have an argument about the facts. In that case, the parties actually call witnesses, and the parties exchange things like bank statements, which become evidence. That’s called ‘discovery’. As in, I just discovered my husband has a secret bank account. Now, no one wants their bank details made public. So the practice is that those documents are not spread about by the lawyers in the matter – when you get those documents, you don’t call the media. In some cases, like divorces, there is a rule that journalists can’t report on the proceedings. So you can see how that makes sense. That’s the logic behind the rule.
In applications, however, the rule is that there is no dispute on the facts, and that all the evidence will be in facts agreed by the parties. The court is merely needed to rule on what the law is on the facts. (It’s a cheaper, quicker option, so parties tend to fudge how much they really agree or disagree, but that is another matter.) And once those documents are in the court file, then it has been accepted that just getting copies of them is pretty much part of doing business.
Now, not so much. The court says that the history of this issue in other jurisdictions is to only allow the documents to be made available once the matter is actually called. Also, the rule of court actually says:
So you have to have a personal interest “herein”. This will severely restrict the ability of the media to report on these matters, or for a public debate on the issue to be held. Given that the Court has already determined that the documents do not contain information that could reasonably justify keeping them secret, it is difficult to see that this restriction is necessary. Is this rule in keeping with our Constitution?
And what knock-on effect will this have on other matters before the courts? So, in the Spy Tapes case, what will this mean? Judge Cameron said in a minority dissenting Supreme Court of Appeal decision that:
[The Promotion of Access to Information Act or] PAIA does not apply to records requested for criminal or civil proceedings after the commencement of proceedings where ‘the production of or access to that record for the purpose [of the proceedings] is provided for in any other law’ (s7). The effect of this provision is that where an applicant/plaintiff is entitled to obtain a document by discovery, the statute’s provisions do not apply.
So we know, at least, that you cannot request any such records in terms of PAIA. Does that now mean those records which are part of litigation are then sealed from the public unless they bring a court application?
The notion that transparency and access to information are essential in order to allow people to enjoy rights is now elementary to the legal system. For example, it is now trite that the right to a fair trial may be undermined if an accused person is refused access to the contents of the criminal docket. It is also now well accepted that the right to just administrative action is predicated upon the furnishing of reasons for decisions. The Constitutional Court has also held that where there is a legitimate basis to seal court records, the openness of court proceedings should be limited as little as is necessary to achieve the aim. The limitation on open justice must be properly tailored and proportionate to the end it seeks to attain. This judgment is assuredly not the last we shall hear on the question of toll roads in the Western Cape, nor, most likely, on the question of court files, and who may see them. DM
 independent newspapers (pty) ltd v minister for intelligence services (freedom of expression institute as amicus curiae) in re: masetlha v president of the republic of south africa and another (independent (cct38/07)  zacc 6; 2008 (5) sa 31 (cc); 2008 (8) bclr 771 (cc) (22 may 2008)
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