Last week, the Supreme Court of Appeal (SCA) handed down its decision in the appeal by the City of Cape Town against a Western Cape High Court decision which had dramatically undermined the principle of open justice.
The City of Cape Town (the City) is reviewing the decision of the SA National Roads Authority (Sanral) to, amongst other things, declare parts of the N1 and N2 national roads as toll roads. In the course of this review application, Sanral applied to court to restrict the City from referring to what it alleged to be Sanral’s confidential information in one of the City’s affidavits in the review. The information had been obtained by the City pursuant to the rules of court, which obliged Sanral to make available the administrative record of its decision.
Now this application by Sanral is standard in cases involving confidential information – what happens is that the parties to litigation try to agree to a confidentiality regime that will apply to certain information. If a regime cannot be agreed upon, the party seeking secrecy can approach the court to rule on the matter. Such applications are always considered on the basis that granting secrecy would depart from the general rule of openness, and secrecy will only be permitted exceptionally.
The Western Cape High Court ruled that Sanral had not made out a case for the confidentiality it contended for. But the court then did something extraordinary – it ruled that the administrative record which Sanral had filed was in any event covered by the “implied undertaking” rule, which had the effect that the record could not be made public without Sanral’s or the court’s consent, until the main review case was heard in court. This rule, which comes from the law in the United Kingdom, provides that documents discovered by a party in litigation cannot be used for any collateral purpose (such as making the documents public). The rule also hits any document – such as the City’s affidavit – which quoted from the administrative record.
And the court then went event further – holding that rule 62(7) of the Uniform Rules of Court had the effect that in any event, the public cannot access the content of a court file until the case is called in court.