THE default position on public access to court documents ought to be one of openness and transparency, the Supreme Court of Appeal heard on Wednesday.
The appeal court was hearing argument against a judgment that significantly diminished the ability of the public and the media to get their hands on documents filed in the High Court and to publish what is in them — up until the case is called in open court.
The judgment was the result of a preliminary skirmish over documents in a dispute between the City of Cape Town and the South African National Roads Agency (Sanral) over the latter’s decision to toll national roads near the city. Sanral argued that some of the documents it had to hand over to the city were confidential. It went to court to try and keep them secret.
Western Cape High Court Judge Ashley Binns-Ward rejected Sanral’s argument that the documents were confidential. But he said that, in any event, Sanral’s application was unnecessary because under Uniform Rule of Court 62(7), the registrar could give court documents only to "parties to the litigation or those who have a personal interest therein".
A personal interest meant "something equivalent to a direct legal interest", not "mere curiosity", the judge said.
The parties to the litigation were similarly prohibited from making court documents public, through an "implied undertaking" to the court. Judge Binns-Ward said it was "now time" to hold "unequivocally" that the implied undertaking was part of South African law.
At the Supreme Court of Appeal on Wednesday, counsel for the city Geoff Budlender SC gave 10 reasons why Judge Binns-Ward’s judgment was wrong. These included that the implied undertaking rule was not part of South African law. And, even if it was, it did not apply to cases in which the actions of organs of state, like Sanral, were being challenged.
The basis of the rule was to protect privacy rights, but organs of state did not have a right to privacy, he said.
Counsel for a number of friends of the court — including the South African National Editors Forum — Wim Trengove SC said the High Court’s interpretation of rule 62(7) made it unconstitutional in that it breached the right of access to information and the principle of open justice.
He said the Constitutional Court had already said, in a "decisive" judgment, that when it came to court documents, the default position was one of openness. "Obviously the High Court judgment interferes with this principle. Its interpretation of rule 62(7) creates a default rule of secrecy for all court records," Mr Trengove said.
Mr Budlender’s first reason for challenging the judgment was that the High Court had given orders that Sanral had not asked for. Neither rule 62(7) nor the implied undertaking rule were raised in Sanral’s application, he said.
Counsel for Sanral Johan Wasserman SC faced a number of questions from the bench on this score. Justice Nathan Ponnan suggested that the order granted by the High Court "bears no resemblance" to the one sought by Sanral.
Mr Wasserman said the court had given Sanral what it wanted in a "roundabout way". He said Sanral’s sole purpose was to protect the confidentiality of "a limited number of documents" up to a certain point.
Judgment was reserved.
Geoff Budlender SC. Picture: CESR
THE default position on public access to court documents ought to be one of openness and transparency, the Supreme Court of Appeal heard on Wednesday.
The appeal court was hearing argument against a judgment that significantly diminished the ability of the public and the media to get their hands on documents filed in the High Court and to publish what is in them — up until the case is called in open court.
The judgment was the result of a preliminary skirmish over documents in a dispute between the City of Cape Town and the South African National Roads Agency (Sanral) over the latter’s decision to toll national roads near the city. Sanral argued that some of the documents it had to hand over to the city were confidential. It went to court to try and keep them secret.
Western Cape High Court Judge Ashley Binns-Ward rejected Sanral’s argument that the documents were confidential. But he said that, in any event, Sanral’s application was unnecessary because under Uniform Rule of Court 62(7), the registrar could give court documents only to "parties to the litigation or those who have a personal interest therein".
A personal interest meant "something equivalent to a direct legal interest", not "mere curiosity", the judge said.
The parties to the litigation were similarly prohibited from making court documents public, through an "implied undertaking" to the court. Judge Binns-Ward said it was "now time" to hold "unequivocally" that the implied undertaking was part of South African law.
At the Supreme Court of Appeal on Wednesday, counsel for the city Geoff Budlender SC gave 10 reasons why Judge Binns-Ward’s judgment was wrong. These included that the implied undertaking rule was not part of South African law. And, even if it was, it did not apply to cases in which the actions of organs of state, like Sanral, were being challenged.
The basis of the rule was to protect privacy rights, but organs of state did not have a right to privacy, he said.
Counsel for a number of friends of the court — including the South African National Editors Forum — Wim Trengove SC said the High Court’s interpretation of rule 62(7) made it unconstitutional in that it breached the right of access to information and the principle of open justice.
He said the Constitutional Court had already said, in a "decisive" judgment, that when it came to court documents, the default position was one of openness. "Obviously the High Court judgment interferes with this principle. Its interpretation of rule 62(7) creates a default rule of secrecy for all court records," Mr Trengove said.
Mr Budlender’s first reason for challenging the judgment was that the High Court had given orders that Sanral had not asked for. Neither rule 62(7) nor the implied undertaking rule were raised in Sanral’s application, he said.
Counsel for Sanral Johan Wasserman SC faced a number of questions from the bench on this score. Justice Nathan Ponnan suggested that the order granted by the High Court "bears no resemblance" to the one sought by Sanral.
Mr Wasserman said the court had given Sanral what it wanted in a "roundabout way". He said Sanral’s sole purpose was to protect the confidentiality of "a limited number of documents" up to a certain point.
Judgment was reserved.
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