Press Release: Open Justice affirmed by the Supreme Court of Appeal

In a ring­ing affir­ma­tion of the impor­tance of open jus­tice, the Supreme Court of Appeal (SCA) today upheld the appeal of the City of Cape Town against a West­ern Cape High Court judg­ment handed down last August.

The mat­ter has its gen­e­sis in the South African National Roads Agency (SAN­RAL) ask­ing the High Court to order that some of its admin­is­tra­tive doc­u­ments remain con­fi­den­tial dur­ing lit­i­ga­tion brought by the City of Cape Town against SANRAL’s plans to toll major roads in the province.

The High Court dis­missed all of SANRAL’s claims for con­fi­den­tial­ity. How­ever, it held that there was a rule pre­vent­ing the City of Cape Town from dis­trib­ut­ing the doc­u­ments that SAN­RAL had been required to pro­vide to the Court and the City of Cape Town. It also held that, con­trary to the uni­form prac­tice at the time, mem­bers of the pub­lic or the media were not enti­tled to obtain copies of court doc­u­ments from the Reg­is­trar of the High Court.

The result was to sig­nif­i­cantly decrease exist­ing access to court doc­u­ments, par­tic­u­larly in chal­lenges to the legal­ity of gov­ern­ment con­duct.

The City of Cape Town appealed the judg­ment to the SCA.

Eleven civil soci­ety, aca­d­e­mic and media groups joined together as amici curiae and advanced argu­ments pro­mot­ing open jus­tice and account­abil­ity. The group included organ­i­sa­tions that engage in lit­i­ga­tion in the pub­lic inter­est, and on whom restricted access to court doc­u­ments would have a dire impact.

The amici included Cor­rup­tion Watch, the Demo­c­ra­tic Gov­er­nance and Rights Unit, the Legal Resources Cen­tre, the M&G Cen­tre for Inves­tiga­tive Jour­nal­ism (amaB­hun­gane), the Open Democ­racy Advice Cen­tre, the Right2Know Cam­paign, Section16, SECTION27, the Socio-Economic Rights Insti­tute, the South African His­tory Archive, and the South African National Edi­tors’ Forum. The amici were rep­re­sented by the Legal Resources Cen­tre.

The SCA endorsed many of the argu­ments advanced by the amici. It recog­nised that the High Court’s judg­ment infringed the rights and prin­ci­ples in the Con­sti­tu­tion guar­an­tee­ing free­dom of expres­sion, access to infor­ma­tion and access to courts, and under­mined the legit­i­macy and effec­tive­ness of the judi­ciary.

Pon­nan JA, on behalf of the SCA, stated that, “The ani­mat­ing prin­ci­ple there­fore has to be that all court records are, by default, pub­lic doc­u­ments that are open to pub­lic scrutiny at all times. … [A]ny depar­ture is an excep­tion and must be jus­ti­fied.”

“Secrecy”, the SCA held, “is the very antithe­sis of account­abil­ity. It pre­vents the pub­lic from know­ing what deci­sion was made, why it was made, and whether it was jus­ti­fi­able.” It upheld the City’s appeal and replaced the High Court judg­ment with an order dis­miss­ing SANRAL’s ini­tial appli­ca­tion for con­fi­den­tial­ity.

Impor­tantly, the Court also affirmed that open jus­tice is nec­es­sary to hold gov­ern­ment to account and, fur­ther, that the effec­tive­ness of the court sys­tem requires such open­ness. It held: “Thus where open­ness is most sorely needed – the con­sid­er­a­tion of gov­ern­ment con­duct – the high court judg­ment lim­its open­ness the most. The blan­ket of secrecy it throws over pre­vi­ously open pro­ceed­ings under­mines the legit­i­macy and effec­tive­ness of the courts.”

The SCA declared that all doc­u­ments filed in court are pub­lic doc­u­ments, open for pub­lic view at any time (unless spe­cific leg­is­la­tion or a court orders oth­er­wise) and that there is no lim­i­ta­tion on par­ties dis­trib­ut­ing court doc­u­ments, par­tic­u­larly in reviews of gov­ern­ment con­duct.

The amici wel­come the SCA judg­ment as a strong and nec­es­sary endorse­ment of the need for open­ness, not only in court pro­ceed­ings, but in all gov­ern­ment activ­ity.