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.
So these two rulings – that the implied undertaking rule applied to judicial review administrative records (and indeed all documents provided under compulsion of the rules of court) and that rule 62(7) was to be interpreted to exclude public access – were devastating to the media and the ability to access court records before cases are heard in court. And it is no answer to say the issue is one of timing and all will be revealed at the court hearing in due course for three reasons : first, cases take a long time to wind their way through the legal system to a hearing date; secondly, some cases that are filed are settled or postponed indefinitely and never see a hearing date; and thirdly, because open justice demands earlier access.
Enter the Supreme Court of Appeal. Justice Ponnan – who authored the unanimous decision of the appeal court – is fast becoming one of my favourite judges. He participated, for example, in the unanimous SCA ruling granting the Mail & Guardian access to the Khampepe-Moseneke report, last year.
In the Sanral case, Justice Ponnan comprehensively unpacked the principle of open justice – drawing on learning from Canada, Australia, England and the USA. He then examined our own rich jurisprudence on the issue – the leading case being Independent Newspapers v Minister for Intelligence. This case established the general principle that the default rule is one of full access to court proceedings and also court documents – even in cases involving national security (which was implicated in that case). The Independent Newspapers case did not, however, deal with the position of accessing court documents before the court hearing.
Turning to the decision of the Western Cape High Court, the SCA held that the “implied undertaking” rule, which the High Court held prohibited the publication of the administrative record, was not part of our law. It was impermissible for the High Court to have adopted the rule because it did not comport with the default constitutional rule of openness, and because the court’s adoption of the rule was a “legislative and not a judicial task”.
Also, Justice Ponnan continued, the High Court did not give Rule 62(7) of the Uniform Rules of Court a proper constitutional interpretation. This rules states that: “Any party to a cause, and any person having a personal interest therein, with leave of the registrar on good cause shown, may at his office examine and make copies of all documents in such cause“. Now Justice Ponnan does some impressive linguistic gymnastics – that “personal interest” should, in a constitutional context, mean “any person who is personally interested” in the case. So a journalist who is personally interested in the case qualifies.
As pleased as I am that the SCA re-interpreted Rule 62(7) in this way, I think it does strain the language of the rule to give it this interpretation. As we argue in our book, A Practical Guide to Media Law, the better view is that Rule 62(7) is unconstitutional. Of course, this route of striking the rule down as unconstitutional was not available to the SCA, as this was not pleaded. At least Justice Ponnan’s approach to the interpretation of the rule has the virtue of certainty – we now need not await another test case on the validity of Rule 62(7). On the SCA’s approach, the rule permits public access to the court file, without further ado.
And so, in sum, “court records are, by default, public documents that are open to public scrutiny at all times. While there may be situations justifying a departure from that default position – the interests of children, State security or even commercial confidentiality – any departure is an exception and must be justified”.
Having penned this brilliant exposition of open justice and its immediate application to court documents from the moment they are filed, one can even forgive Justice Ponnan’s introductory pun, for which he apologises to John Donne: “perchance he for whom the toll tolls may be so ill as not to know that it tolls for open justice”.
Bottom line of the judgment, settling this debate once and for all: once a court document has been filed, it is a public document and can be accessed by the public. So the principle of open justice begins when court documents are filed. Journalists can also report on the document from then, obviously ensuring they do not in so doing fall foul of any other law, such as the law of defamation.