City of Cape Town v South African National Roads Authority Limited and Others (20786/2014) [2015] ZASCA 58; 2015 (3) SA 386 (SCA); [2015] 2 All SA 517 (SCA); 2015 (5) BCLR 560 (SCA) (30 March 2015)

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City of Cape Town v South African National Roads Authority Limited and Others (20786/2014) [2015] ZASCA 58; 2015 (3) SA 386 (SCA); [2015] 2 All SA 517 (SCA); 2015 (5) BCLR 560 (SCA) (30 March 2015)

Links to summary

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 20786/2014
Reportable
In
the matter between:
CITY
OF CAPE
TOWN
....................................................................................................
APPELLANT
and
SOUTH
AFRICAN NATIONAL ROADS AUTHORITY LIMITED
...........
FIRST
RESPONDENT
PROTEA
PARKWAYS
CONSORTIUM
....................................................
SECOND
RESPONDENT
N1/N2
OVERBERG
CONSORTIUM
.............................................................
THIRD
RESPONDENT
GTIMV
CONSORTIUM
..............................................................................
FOURTH
RESPONDENT
MINISTER
OF
TRANSPORT
.........................................................................
FIFTH
RESPONDENT
MINISTER
OF WATER AND ENVIRONMENTAL AFFAIRS
...................
SIXTH
RESPONDENT
MINISTER
OF TRANSPORT AND PUBLIC WORKS,
WESTERN
CAPE
PROVINCE
................................................................
SEVENTH
RESPONDENT
MINISTER
OF FINANCE, ECONOMIC
DEVELOPMENT
AND TOURISM, WESTERN
CAPE
PROVINCE
........................................................................................
EIGHTH
RESPONDENT
N2/T2
CRISIS
COMMITTEE
........................................................................
NINTH
RESPONDENT
THEEWATERSKLOOF
MUNICIPALITY
..................................................
TENTH
RESPONDENT
BREEDE
VALLEY LOCAL MUNICIPALITY
....................................
ELEVENTH
RESPONDENT
Neutral
citation:
City of Cape Town v South
African National Roads Authority Limited & others
(20786/14)
[2015] ZASCA 58
(30 March 2015)
Bench:
Ponnan, Saldulker and Zondi JJA and Van
Der Merwe and Gorven AJJA
Heard:
18 March 2015
Delivered:
30 March 2015
Summary
:
Open justice – court records by default should be open to the
public – any departure an exception and should be justified
–
high court’s adoption of implied undertaking rule and
interpretation of rule 62(7) of the Uniform rules - inconsistent
with
that constitutional principle.
ORDER
On
appeal from
: Western Cape Division,
Cape Town (Binns-Ward J, sitting as court of first instance):
judgment reported
sub nom South African
National Road Agency Limited v City of Cape Town & others
;
In Re: Protea Parkway Consortium v City
of Cape Town & others
[2014] 4 All
SA 497
(WCC).
1.
The appeal is upheld with costs including the costs of three counsel.
2.
The order of the court below is set aside and replaced with the
following:
‘
The
application is dismissed with costs including the costs of three
counsel.’
JUDGMENT
Ponnan
JA (Saldulker and Zondi JJA and Van Der Merwe and Gorven AJJA
concurring):
[1]
This appeal raises matters of the greatest public importance to the
people of Cape Town and the region, involving as it does
the
construction and tolling of principal motorways in a project to be
undertaken by an organ of State. And so one might say, with
apologies
to John Donne of course, perchance he for whom the toll tolls may be
so ill as not to know that it tolls for open justice.
[2]
The respondent, the South African National Roads Authority Limited
(SANRAL), an organ of State as defined in s 239 of the Constitution,

is responsible for the strategic planning, design, construction,
management, control, maintenance and rehabilitation of our national

roads. Pursuant to a tender and evaluation process SANRAL selected
Protea Parkways Consortium (PPC) as the preferred bidder and
Overberg
Consortium as the reserve bidder in respect of what is described as
the N1/N2 Winelands Paarl Highway Toll Project. The
appellant, the
City of Cape Town (the City), launched a review application in the
Western Cape High Court, Cape Town in terms of
rule 53 of the Uniform
rules of court seeking, inter alia, to review SANRAL’s decision
to award the tender to PPC.
[1]
SANRAL
furnished the City with the administrative record in terms of rule
53(1)
(b)
in two parts, marked respectively as, the ‘non-confidential
record’ and ‘the confidential record’. That

generated a dispute between the parties as to precisely what
constituted the rule 53 record. An exchange of correspondence
followed,
which culminated in a letter dated 25 October 2013 written
by the City’s attorney to SANRAL’s attorney recording:
‘
3.
The terms to which the parties have already agreed are in a series of
letters. For convenience, and to avoid any future dispute
as to what
was agreed, in what follows we collate the agreed terms, along with
the City’s position on the two issues discussed
in the previous
paragraph.
3.1
SANRAL will provide the City’s legal representatives with
copies of the documents forming part of the Rule 53 record which

SANRAL considers to be relevant but claims to be confidential, and
such representatives will sign the attached confidentiality

undertaking, which prevents them from using or disclosing such
documents except for purposes of the litigation, and then only either

in a manner agreed between the parties, or in accordance with any
directions by a judge or a court.
3.2
If in their opinion it is necessary, the City’s legal
representatives may disclose such documents to the City’s

officials and experts, subject to their also signing the
confidentiality undertaking.
3.3
The City may place any document or information which SANRAL or the
Consortium claim to be confidential before the court hearing
the
review application, either publicly or in closed affidavits,
arguments and hearings. If the parties cannot agree whether a

particular document should be dealt with publically or on a closed
basis, the parties will ask a judge or the court to decide that

question at a preliminary hearing. Any such preliminary hearing will
be closed, and the parties and the judge or court will be
able to
have sight of and refer to copies of the contested documents. The
parties will endeavour to agree suitable dates and arrangements
for
any such hearing.
3.4
SANRAL will provide the City with a list of documents and
information, including the bids by persons other than the Consortium,

which SANRAL proposes to exclude from the record on the basis of
irrelevance, so that the City can decide whether it wishes to
see
them. SANRAL will provide copies of any such documents or information
if the City requests them, provided that any document
or information
which is also claimed to be confidential will be subject to the
confidentiality undertaking.
3.5
The City records that at this stage it does not concede the validity
of any claim to irrelevance or confidentiality. In the
event of a
dispute, the City contends that the onus rests on SANRAL and/or the
Consortium to prove that a document is confidential
and/or may not be
produced in open court. SANRAL does not concede this and contends
that the issue of onus can be determined should
a dispute arise.’
[3]
In accordance with that agreement, each of the City’s
representatives furnished the envisaged confidentiality undertaking

to SANRAL. And prior to serving and filing its supplementary founding
affidavit (the SFA), the City supplied SANRAL with a copy
thereof.
The SFA made reference to both the ‘non-confidential’ and
‘confidential’ records provided by SANRAL
on the basis,
so the City contended, that the information was not confidential and
should immediately be made known to the public
in the public
interest. SANRAL then made application to the high court, seeking
orders that parts of the SFA be redacted prior
to it being formally
served and filed. SANRAL sought an order in the following terms:
‘
1.
The Confidentiality Undertakings signed by the parties to the Review
Application, and their legal representatives remain in force
and
binding, subject to any variations necessitated by the order granted
below;
2.
The Supplementary Founding Affidavit, including the annexures and
annexed affidavits (“the Supplementary Affidavit”)
is to
be redacted in accordance with the first and second schedules, copies
of which are attached hereto marked “NOM1”
and “NOM2”
respectively;
3.
The redacted Supplementary Affidavit may then be served and filed;
4.
After the service and filing of the Applicant’s (First
Respondent in the main application) Answering Affidavit, the
Supplementary
Affidavit may be further amended, so as to exclude the
redaction set out in the first schedule (NOM1);
5.
The amended Supplementary Affidavit, subject to the retention of the
redactions as set out in “NOM2” which will remain

effective, may then be served and filed;
6.
The full Supplementary Affidavit, without any redactions, may only be
provided to the Judge hearing the review application;
7.
Insofar as the Heads of Argument may refer to the contents of the
un-redacted portions of the Supplementary Affidavit, such Heads
of
Argument may only be provided to the Judge hearing the review
application;
8.
The review application is to be heard in camera, as and when any of
the aspects and/or information as set out in “NOM2”
is
raised and dealt with;
9.
The First Respondent is to pay the costs of the application.’
[4]
In support of the application, Mr Nazir Alli, SANRAL’s Chief
Executive Officer, stated:
‘
71.
SANRAL objects to the service and the filing of the Supplementary
Affidavit, and the annexures thereto, in its current format,
and has
identified two separate categories of documents, which are explained
below.
72.
The first category relates to information and documentation that
needs to be kept confidential until after the filing of SANRAL’s

answering affidavit in the Review Application. Such information and
documentation has been identified and described in the schedule

attached to the Notice of Motion as annexure “NOM1” (“the
First Schedule”). The first category of documentation
and
information must be kept confidential, as the failure to do so will
simply cause unjustified and unnecessary concern among
the general
public, and will result in unjustified antagonism and bias towards
SANRAL by the general public.
73.
The second category relates to information and documentation that
must be kept confidential at all times during the legal proceedings,

and thereafter. Such information and documentation has been
identified and described in the schedule attached to the Notice of

Motion as annexure “NOM2” (“the Second Schedule”).
The second category of documentation and information
ought to be kept
confidential, as the failure to do so will not only cause harm and
damage to SANRAL, but also to the bidders in
the tender process, the
South African fiscus and economy and the general public. In addition,
the disclosure of such information
and documentation will fall foul
of SANRAL’s statutory obligations.’
Mr
Alli added:
‘
74.
As appears from the City’s correspondence and the City’s
submission, it is clear that the City’s aim in filing
the
Supplementary Affidavit is to enable the Press to report on the
contents of the Supplementary Affidavit and the annexures thereto.
75.
The City has attached Affidavits of “Experts” to the
Supplementary Affidavit and in the Supplementary Affidavit
the City
refers to certain costing implications of the Project and ultimately
SANRAL is criticized on a socio-economic basis.
76.
I do not intend to reply in this Affidavit, to the contents of the
Supplementary Affidavit, as this will be done, in detail,
in the
Answering Affidavit currently being prepared. I do however intend to
deal, in very general terms, with certain “observations”

made by the City’s “Experts”–
76.1
The “Expert” reports filed in support of the
Supplementary Affidavit also raise the same criticisms, as are raised

in the Supplementary Affidavit, and provide commentary on the
commercial and economic viability of the entire Project.
76.2
The “Experts” utilized by the City suggest that the
Project would ultimately result in a negative benefits-to-cost
ratio.
76.3
Naturally such conclusions and statements relating to the cost of the
project, and ultimately the effect thereof on the potential
road
users, may result in unjustified alarm being created amongst the
general public.
76.4
The “Experts’ are “predicting” the economic
and financial viability of the Project, by incorrectly
calculating
the cost benefit ratio.
77.
In a nutshell, the conclusions and calculations put forward by the
City’s “Experts” are simply wrong, and
would create
a false impression amongst the general public.
78.
I attach hereto some recent examples of press reports relating to the
Project, which clearly evidence the intention of the City
to disclose
information to the public by way of the media, marked “H1”
to “H7” respectively.
79.
In the circumstances, and in order to avoid unjustified alarm the
portions of the Supplementary Affidavit and the supporting

documentation, as described in the First Schedule should not be
released until after SANRAL has had an opportunity of filing its

Answering Affidavit and its own expert reports, which will deal with
and refute the allegations made.
80.
The Answering Affidavit will provide a proper response to the costing
predictions set out in the Supplementary Affidavit, and
will provide
appropriate answers to the fears expressed by the City’s
“Experts”. It would certainly be to the
benefit of the
general public to have “both sides of the story”, before
drawing any conclusions.
81.
SANRAL will accordingly contend for a procedural directive,
compelling the City and other Respondents to comply with the
confidentiality
undertaking in regard to this category pending the
filing of SANRAL’s Answering Affidavit in the Review
Application.
82.
It is clear from the correspondence referred to above that the City
seeks to file highly confidential and sensitive information
in
respect of the tender received with an outstanding tender process
still to be conducted in respect of the financing of the Project

(which process has not been finally concluded) as a public record.
This will allow access to and unfair advantage to the other
bidders,
potential competitors, financial institutions, and the public at
large to such documentation.
83.
This will make a complete mockery of a competitive process required
for the procurement of goods and services in a transparent
and fair
manner.
84.
SANRAL’s evaluation of the tenders is sensitive not only for
the reason of the confidential information discussed in relation
to
the tenderers, but also as SANRAL will be placed at a massive
disadvantage in its negotiations with the Preferred Bidder or
if
necessary the Reserve Bidder and the financiers concerned if the
documentation became public. The release of the documentation
and
information into the public records may frustrate the successful
conclusion of the negotiations with PPC. It is important that

confidentiality is observed by all the parties, especially since
negotiations are still to be finalized. Such confidentiality is

important not only to protect the integrity of SANRAL’s
evaluation and negotiation strategy, but also to protect commercially

sensitive or any proprietary trade information that the bidders might
have included in their proposals and which they would not
wish to be
made known to their competitors.
85.
The second category of documents encapsulate the following
sub-categories of documents which require protection –
85.1
Bidders’ commercial information;
85.2
Debt funding competition;
85.3
SANRAL’s Bid Evaluation.’
[5]
The response to those allegations by the City Manager, Mr Achmat
Ebrahim, on behalf of the City, was:
‘
8.
In essence, the issue for determination in both secrecy applications
is whether SANRAL and PPC have made a case for secrecy.
SANRAL and
PPC seek orders which courts such as ours, which are committed to
open justice and the upholding and protection of constitutional

principles and rights – such as accountability, transparency,
freedom of speech, and press freedom – grant exceptionally

rarely. The City contends that neither application makes out a case
for secrecy.
.
. .
84.
Having considered the information listed in NOM1 and NOM2 on the
basis of the case presented by SANRAL, the City is of the view
that
disclosure of that information will probably not cause any of the
harm which SANRAL alleges.
85.
That being so, SANRAL has failed to provide sufficient evidence to
make a case that disclosure of the information listed in
NOM1 and
NOM2 will probably cause harm. Even if SANRAL had pleaded a cause of
action (which is not the case), I respectfully submit
that this Court
is consequently unable to grant the secrecy orders on the grounds of
alleged harm.
.
. .
114.
SANRAL does not even suggest any legal basis or any cause of action
for its “procedural directive” imposing secrecy
in
respect of the first category of information. I am advised that there
is none.
.
. .
153.
Even if this court finds that the disclosure of specified information
would cause the harm alleged (which the City does not
accept), that
does not mean that SANRAL is entitled to the relief sought. I am
advised that SANRAL must establish a cause of action
for the
extraordinary secrecy orders which it seeks. Harm in itself is
insufficient. SANRAL has not pleaded any cause of action
for the
secrecy orders founded on the alleged harm.’
[6]
Accordingly, what called for determination on the papers as they
stood was whether: (a) the information in NOM1 and NOM2 was

confidential; (b) its disclosure would cause the harm to SANRAL, as
asserted by it; and (c) such harm provided a basis for secrecy.
The
high court (Binns-Ward J) decided all of those issues in the City’s
favour. It did so principally on the basis that SANRAL
had failed to
make out a case for the relief sought. It held:
‘
59.
. . . SANRAL would have to establish confidentiality in the true
sense or such similar basis for exclusivity, or show that its
wider
availability would be prejudicial to the fair and just determination
of the case. SANRAL has not sought to show any of these
things in
respect of the material identified in schedule NOM1. Its object in
respect of the NOM1 material is merely to avoid premature
publicity
to evidence obtained by the City through Rule 53(1)(b).
67.
. . . Indeed, the impression is given that the deponent to the
supporting affidavit made his statement before the content of

schedules NOM 1 and 2 to the notice of motion were settled. In my
view, it is not for the court, in the absence of sufficient
indication in the body of the supporting affidavit of a
particularised link between the items listed in schedule NOM 2 and
the
prejudice contended for, to have to search in the voluminous bid
documentation to see if a case could be made for SANRAL’s

position; cf.
Crown Cork
supra, at 1101F. Nor is it for a
respondent in such a situation to have to fathom the particularity of
the case it is expected
to meet.
68.
SANRAL’s founding papers failed to link the apprehended harm –
described by the deponent in the broadest terms –
with
particularised aspects of the documents concerned. There is no excuse
for this, especially considering that the parties had
agreed that the
court would be requested to hear the interlocutory applications
in
camera
.’
[7]
Having found that SANRAL had failed to make out a case in respect of
each of categories NOM1 and NOM2, the high court in paragraph
1 of
its order dismissed SANRAL’s application. That, one would have
thought, would have been the end of the matter. It was
not, because
the high court then saw fit to issue the following orders:
‘
3.
It is declared that the administrative record disclosed by SANRAL in
terms of rule 53(1)(b) of the Uniform Rules of Court is
subject to
the “implied undertaking rule” explained in the body of
this judgment, with the effect that no person, including
any
recipient of the supplementary founding papers delivered in terms of
paragraph 2 hereof, shall be permitted, unless authorised
thereto by
SANRAL or by the Court, on application, to disseminate, publish, or
distribute any part of the administrative record,
or any part of any
affidavit in the supplementary founding papers that quotes or
substantively reproduces the content thereof,
before the hearing of
the aforementioned pending review application.
4.
Paragraph 3 of this order shall not be construed to derogate from the
right of any party in the review application to refer to,
or in any
other manner deal with, the administrative record in any affidavit to
be delivered by it in the review application, provided
that the
dissemination, publication, or distribution of the affected parts of
any such affidavit shall likewise be limited by the
implied
undertaking rule.
5.
The papers in the current interlocutory applications, save to the
extent that their partial release into the public domain was

authorised in terms of the order obtained on 5 August 2014 at the
instance of Right2Know and Section 16, shall remain under seal,

subordinate to the degree of access permitted to the papers in the
review application, between now and the hearing of the review.
6.
There shall be no order as to costs in either
application.’
The
high court, although thereafter recognising ‘that the
application of the rule in the context of disclosure in the judicial

review process is unprecedented’, somewhat surprisingly
dismissed the City’s application for leave to appeal to this

court. The City appeals with the leave of this court. There is no
cross appeal by SANRAL. With the leave of the President of this

Court, a range of public interest organisations – eleven in
all, were admitted as
amici
curiae
.
[2]
[8]
The high court issued the additional orders because of what it
described as:
‘
an
evident misapprehension by the parties as to the extent to which the
material that has been made available by SANRAL in terms
of Rule
53(1)
(b)
may be disseminated before the review application is heard, I
consider it appropriate to make an order with declaratory effect.
The
order that I propose to make will also address the concerns of those
respondents, such as the fourth and fifth respondents
in the review,
who have not been favoured yet with unexpurgated copies of the City’s
supplementary founding affidavits.’
Paragraph
3 of the high court’s order and the ancillary orders in
paragraphs 4 and 5 stem directly from the high court’s
adoption
of the implied undertaking rule (the rule). On that score the high
court stated:
‘
57.
I am thus of the view that if there be any doubt that the judgment in
Crown Cork
has not already done so, the time has come to hold unequivocally
that the implied undertaking rule does form part of our
law and
that it is of application in respect of material disclosed by a
respondent in review proceedings in terms of rule 53(1)
(b)
,
save to the extent that any part of the record on review was not
already a matter of public record before its disclosure in the

litigation. For the reasons discussed above, the rule serves an
important purpose; not only in upholding the constitutional right
to
privacy, but, equally importantly, in promoting the effective
administration of justice. Its application is susceptible to
adjustment to meet the effective administration of justice. Its
application is susceptible to adjustment to meet the exigencies
of
any case that might afford sufficient reason to depart from its
ordinary incidence. There is no sound reason, in my view, to
call its
constitutional compatibility into question.’
[9]
The rule had not been raised by SANRAL in its affidavit. The City had
thus not been called upon to answer that case. The high
court
prohibited the publication of all information from the rule 53
record, including ‘the non-confidential record’
until the
review application is called, whereas SANRAL’s case was that:
all such information, apart from NOM1 and NOM2, could
be made public
immediately; and the information in NOM1 must be kept secret only
until SANRAL filed its answering papers, not until
the hearing. The
high court further held that documents filed with the registrar are,
in any event, regulated by rule 62(7) of
the Uniform rules of court
(the subrule). According to the high court, that subrule regulates
access to such information and ‘provides
an important
administrative basis to support the implied undertaking rule’.
The subrule, so held the high court, ‘permits
the registrar to
give only any party to the cause and any person having a personal
interest therein . . . access to the documents
in the court file’.
The high court took the view that ‘public access to the content
of the court file in litigious
proceedings is permissible only after
the matter has been called in open court’.
[10]
In respect of both issues the high court appears to have
impermissibly ranged beyond that which it had been asked to
adjudicate.
For, when one compares SANRAL’s notice of
motion to the order that ultimately issued, it is clear that: (a)
SANRAL did not
secure the relief that it had sought; and (b)
conversely, the relief that issued was not sought by it. In that
regard the following
from
Fischer v Ramahlele
2014 (4) SA 614
(SCA) paras 13 and 14 is apposite:
‘
Turning
then to the nature of civil litigation in our adversarial system, it
is for the parties, either in the pleadings or affidavits
(which
serve the function of both pleadings and evidence), to set out and
define the nature of their dispute, and it is for the
court to
adjudicate upon those issues. That is so even where the dispute
involves an issue pertaining to the basic human rights
guaranteed by
our Constitution, for “(i)t is impermissible for a party to
rely on a constitutional complaint that was not
pleaded”. There
are cases where the parties may expand those issues by the way in
which they conduct the proceedings. There
may also be instances where
the court may mero motu raise a question of law that emerges fully
from the evidence and is necessary
for the decision of the case. That
is subject to the proviso that no prejudice will be caused to any
party by its being decided.
Beyond that it is for the parties to
identify the dispute and for the court to determine that dispute and
that dispute alone.
It
is not for the court to raise new issues not traversed in the
pleadings or affidavits, however interesting or important they
may
seem to it, and to insist that the parties deal with them. The
parties may have their own reasons for not raising those issues.
A
court may sometimes suggest a line of argument or an approach to a
case that has not previously occurred to the parties. However,
it is
then for the parties to determine whether they wish to adopt the
new point. They may choose not to do so because of
its implications
for the further conduct of the proceedings, such as an adjournment or
the need to amend pleadings or call additional
evidence. They may
feel that their case is sufficiently strong as it stands to require
no supplementation. They may simply wish the
issues already
identified to be determined because they are relevant to future
matters and the relationship between the parties.
That is for them to
decide and not the court. If they wish to stand by the issues they
have formulated, the court may not raise
new ones or compel them to
deal with matters other than those they have formulated in the
pleadings or affidavits.’
[3]
So
too, is the statement by Howie JA in
Western Cape Education
Department & another
v George
1998 (3) SA 77
(SCA) at
84E that it is desirable:
‘
.
. . that any judgment . . . be the product of thorough consideration
of,
inter alia
,
forensically tested argument from both sides on questions that are
necessary for the decision of the case.’
[11]
It nonetheless, remains, because the issues are not, primarily, about
factual disputes between the parties, but rather matters
of law that
will affect many litigants beyond the confines of this case, to
consider the correctness of the high court’s
judgment. But,
before turning to a consideration of the rule and subrule it would be
appropriate to first touch on some key principles
that inform that
discussion.
[12]
‘The open court principle is a venerable principle, deeply
rooted in western consciousness. And for good reason.’
–
so declared the Chief Justice of Canada, the Rt Hon Beverley
McLachlin PC, in an address to the
Middle
Temple
during
January 2014
entitled:
‘Is the open court principle sustainable in the 21st
century’.
[4]
The
Learned Chief Justice began by saying that the ‘open court
principle was rightly venerated as a key component of the rule
of
law’
.
She elaborated - the open court principle meant in practice that: (a)
court proceedings including the evidence and documents disclosed
in
proceedings should be open to public scrutiny; and (b) juries and
judges should give their decisions in public. (It did not
require
every aspect of the judicial process to be open, so that for example
judges’ deliberations could remain private,
and some evidence
might be protected by privilege). Open justice was important for
three reasons: First, it assisted in the search
for truth and played
an important role in informing and educating the public. Second, it
enhanced accountability and deterred misconduct.
Third, it had a
therapeutic function, offering an assurance that justice had been
done.
[13]
The principle of open justice, according to Chief Justice
Spigelman,
[5]
is one of the most
pervasive axioms of the administration of common law systems. It was
from such origins, so he states:
‘
that
it became enshrined in the United States Bill of Rights and, more
recently, in international human rights instruments such
as Article
14 of the International Covenant on Civil and Political Rights
(ICCPR) and Article 6 of the European Convention for
the Protection
of Human Rights, as adopted and implemented by the British
Human
Rights Act
1998.
In both cases the right is expressed as an entitlement to “a
fair and public hearing by an independent and impartial
tribunal
established by law.”’
[6]
The
significance of the principle of open justice, he adds,
‘
is
of such a high order that, even where there is no written
constitution, or a written constitution does not extend to the
principle,
the principle should be regarded as of constitutional
significance.
’
[7]
The tradition of open justice had its origins in England before the
Norman Conquest, when freemen in the community participated
in the
public dispensing of justice.
[8]
The tradition had spread from England, particularly to those parts of
the world which had adopted and retained that common law
heritage,
but was also observed and respected in civil law societies. The open
court principle was affirmed in England in the strongest
terms by the
House of Lords in the case of
Scott
v Scott
[1913]
AC 417
,
where Lord Atkinson had said (at 463):
‘
The
hearing of a case in public may be, and often is, no doubt, painful,
humiliating, or deterrent both to parties and witnesses,
and in many
cases, especially those of a criminal nature, the details may be so
indecent as to tend to injure public morals, but
all this is
tolerated and endured, because it is felt that in public trial is to
found, on the whole, the best security for the
pure, impartial, and
efficient administration of justice, the best means for winning for
it public confidence and respect.’
Later
in
R
v Legal Aid Board, ex parte Kaim Todner (a firm)
,
[9]
Lord
Woolf said:
‘
This
is the reason it is so important not to forget why proceedings are
required to be subjected to the full glare of a public hearing.
It is
necessary because the public nature of proceedings deters
inappropriate behaviour on the part of the court. It also maintains

the public's confidence in the administration of justice. It enables
the public to know that justice is being administered impartially.
It
can result in evidence becoming available which would not become
available if the proceedings were conducted behind closed doors
or
with one or more of the parties' or witnesses' identity concealed. It
makes uninformed and inaccurate comment about the proceedings
less
likely. If secrecy is restricted to those situations where justice
would be frustrated if the cloak of anonymity is not provided,
this
reduces the risk of the sanction of contempt having to be invoked,
with the expense and the interference with the administration
of
justice which this can involve.’
[14]
Likewise, in the Canadian Supreme Court in
Attorney General (Nova
Scotia) v MacIntyre
[1982] 1 SCR 175
at 185, Justice (later Chief
Justice) Dickson said:
‘
Many
times it has been urged that the “privacy” of litigants
requires that the public be excluded from court proceedings.
It is
now well established, however, that covertness is the exception and
openness the rule. Public confidence in the integrity
of the court
system and understanding of the administration of justice are thereby
fostered. As a general rule the sensibilities
of the individuals
involved are no basis for exclusion of the public from judicial
proceedings.’
With
the advent of the Canadian Charter of Rights and Freedoms, the open
court principle was recognised as a component of freedom
of
expression, protected by s 2
(b)
of the Charter.
[15]
In the United States of America,
Richmond
Newspapers v Virginia
[1980] USSC 154
;
448 US 555
(1980), observed that t
he origins of the modern criminal trial
in Anglo-American justice can be traced back beyond reliable
historical records. A summary
of that history showed that throughout
its evolution, the trial has been open to all who cared to observe.
Chief Justice Burger
pointed out that one ‘cannot erase from
people's consciousness the fundamental, natural yearning to see
justice done . .
.’ He added:
‘
The
crucial prophylactic aspects of the administration of justice cannot
function in the dark; no community catharsis can occur
if justice is
"done in a corner [or] in any covert manner." . . .
People
in an open society do not demand infallibility from their
institutions, but it is difficult for them to accept what they
are
prohibited from observing.’
More
recently,
the US Court of Appeals for the Sixth Circuit
strongly affirmed the open court principle when it stated:
‘
Democracies
die behind closed doors. The First Amendment, through a free press,
protects the people’s right to know that their
government acts
fairly, lawfully, and accurately . . . . When government begins
closing doors, it selectively controls information
rightfully
belonging to the people. Selective information is misinformation. The
Framers of the First Amendment “did not
trust any government to
separate the true from the false for us” . . . They protected
the people against secret government.’
[10]
The
court added that: ‘Open proceedings, with a vigorous and
scrutinizing press, served to ensure the durability of our
democracy.’
[11]
[16]
The idea that South African civil courts should be open to the public
goes back to 1813.
[12]
The
principle of open courtrooms is now constitutionally entrenched.
[13]
‘Publicity’, said the philosopher Jeremy Bentham, ‘is
the very soul of justice. It is the keenest spur to exertion,
and the
surest of all guards against improbity. It keeps the judge himself,
while trying, under trial.’
T
he
foundational constitutional values of accountability, responsiveness
and openness apply to the functioning of the judiciary as
much as to
other branches of government.
[14]
In
Independent
Newspapers
,
[15]
the Constitutional Court dealt with an application for access to
classified documents which formed part of an appeal record. National

security, so the Minister asserted, required that the documents not
be made available to the media and the public. The Constitutional

Court confirmed that the default position is one of openness and
disavowed an approach that proceeded from a position of secrecy,
even
in a case where the documents in question had been lawfully
classified as confidential in the interest of national security.
In
deciding whether to make the disputed documents publicly available,
the Court expressly recognised a cluster of related constitutional

rights and principles which capture the ‘constitutional
imperative of dispensing justice in the open.’
[16]
It concluded that open justice is a crucial factor in any
consideration of a request to limit public disclosure of a court
record.
[17]
Although the issue at stake concerned only access to the record –
all the court proceedings were held in public. Yet the
court still
emphasised the importance of openness and ordered that, despite
claims of national security, the vast majority of the
record should
be made publicly available.
[17]
There exists, as Moseneke DCJ put it, ‘a cluster or, if you
will, umbrella of related constitutional rights which include,
in
particular, freedom of expression and the right to a public trial,
and which may be termed the right to open justice.’
[18]
That
animating principle, it is submitted by the City and the
amici
,
is undermined by the judgment of the high court, which endangers a
range of overlapping and inter-related constitutional rights,
namely:
(a) the rights of litigants to a public trial in both civil and
criminal matters; (b) the right of the public to open justice;
(c)
the right of everyone to access information; (d) the right of a
litigant to freedom of expression; and (e) the media’s
right to
report on court proceedings. Those rights, so the submission goes,
are underpinned by the same broad principle, namely
a system where
court proceedings and court documents are, by default, open to the
public. The right to a public hearing in s 34
of the Constitution and
the right to a public trial in s 35(3)
(c)
is afforded to litigants in civil matters and accused persons in
criminal matters. The publicity of a trial usually serves as a

guarantee that the matter will be determined independently and
impartially. The glare of public scrutiny makes it far less likely

that the courts will act unfairly. In
Shinga
v The State
[19]
Yacoob
J put it thus:
‘
Seeing
justice done in court enhances public confidence in the
criminal-justice process and assists victims, the accused and the

broader community to accept the legitimacy of that process. Open
courtrooms foster judicial excellence, thus rendering courts
accountable and legitimate. Were criminal appeals to be dealt with
behind closed doors, faith in the criminal justice system may
be
lost. No democratic society can risk losing that faith. It is for
this reason that the principle of open justice is an important

principle in a democracy.’
[18]
As a general rule litigants are prejudiced when their proceedings are
not held in public. That is not to say that litigants
may not
sometimes wish to keep their litigation private or that there may not
be situations where a court may justifiably depart
from the default
rule that court proceedings are public. But it will be a dangerous
thing for all litigants in both civil and criminal
matters, for court
documents, as a general rule to be inaccessible and unpublishable.
For, it may be said that the right to public
courts, which is one of
long standing, does not belong only to the litigants in any given
matter, but to the public at large. Open
justice is, moreover,
required by
s 32
of the
Superior Courts Act 10 of 2013
, which
provides:
‘
Save
as is otherwise provided for in this Act or any other law, all
proceedings in any Superior Court must, except in so far as
any such
court may in special cases otherwise direct, be carried on in open
court.’
[19]
It needs be emphasised that courts are open in order to protect those
who use the institution and to secure the legitimacy
of the
judiciary, not to satisfy the prurient interests of those who wish to
examine the private details of others. The public,
said Langa CJ in
SABC
v NDPP,
‘is
entitled to know exactly how the judiciary works and to be reassured
that it always functions within the terms of the
law and according to
time-honoured standards of independence, integrity, impartiality and
fairness’.
[20]
Without
openness, the judiciary loses the legitimacy and independence it
requires in order to perform its function. Thus Moseneke
DCJ accepted
in
Independent
Newspapers
(para
43) that ‘the default position is one of openness’.
Accordingly, court proceedings should be open unless a court
orders
otherwise. The logical corollary must therefore be that departures
should be permissible when the dangers of openness outweigh
the
benefits. And by extension, the right of open justice must include
the right to have access to papers and written arguments
which are an
integral part of court proceedings (
Independent
Newspapers
para
41). That must follow axiomatically, it seems to me, because the
public would hardly be in a position to properly assess the

legitimacy or fairness of the proceedings if they could observe the
proceedings in open court but were denied access to the documents

that provide the basis for the court’s decision.
[20]
The
right to freedom of expression lies at the heart of democracy, and is
one of a ‘web of mutually supporting rights’
that hold up
the fabric of the constitutional order.
[21]
Section
32(1) of the Constitution guarantees everyone the ‘right of
access to information held by the state’. Citizens
and public
interest groupings rely on this right to uncover wrongdoing on the
part of public officials or for accessing information
to report on
matters of public importance. The Constitutional Court has noted that
the media has a duty to report accurately, because
the ‘consequences
of inaccurate reporting may be devastating.’
[22]
It
goes without saying that to report accurately the media must be able
to access information. Access to information is ‘crucial
to
accurate reporting and thus to imparting information to the
public.’
[23]
Whilst
s 32 of the Constitution guarantees the right of persons to access
relevant information, s 16 entitles them to distribute
that
information to others. Section 16(1)
(b)
of the Constitution provides: ‘Everyone has the right to
freedom of expression, which includes freedom to receive or impart

information or ideas’. Importantly, therefore, the right to
freedom of expression is not limited to the right to speak, but
also
to receive or impart information and ideas.
The
media hold a key position in society. Courts have long recognised
that an untrammelled press is a vital source of public information

(see
Grosjean
v American Press Co.
[1936] USSC 33
;
297
US 233
(1936)).
Grosjean
recognised that ‘since informed public opinion is the most
potent of all restraints upon misgovernment, the suppression or

abridgement of the publicity afforded by a free press cannot be
regarded otherwise than with grave concern’.  In this

country the media are not only protected by the right to freedom of
expression, but are also the ‘key facilitator and guarantor’

of the right.
[24]
The media’s right to freedom of expression is thus not just (or
even primarily) for the benefit of the media: it is for the
benefit
of the public.
[25]
In
Khumalo
v Holomisa
,
[26]
the
Constitutional Court put it thus:
‘
In
a democratic society, then, the mass media play a role of undeniable
importance. They bear an obligation to provide citizens
both with
information and with a platform for the exchange of ideas which is
crucial to the development of a democratic culture.
As primary agents
of the dissemination of information and ideas, they are, inevitably,
extremely powerful institutions in a democracy
and they have a
constitutional duty to act with vigour, courage, integrity and
responsibility.’
When
justice is open, court reporting is a crucial avenue for public
knowledge about what the government does. It is particularly

important where the government is one of the parties in a case and
where other sources of information are limited.
[21]
Not all information is readily revealed by the State and even
powerful media organisations sometimes face great difficulty
in
obtaining information in some areas. In an environment of secrecy,
journalists become vulnerable to off-the-record briefings
and
strategic leaks by government. In this context, open justice is
particularly important because through court cases information
can be
exposed and tested in ways that may not otherwise be possible. The
judicial process generally shrinks from hearsay. Witnesses
swear to
the truth and if they lie make themselves open to prosecution for
perjury.  The rules of evidence, which regulate
what is
revealed, are applied by an independent judiciary. The whole process
is thus designed to limit the extent to which parties
can craft and
shape information for public consumption. In
Scott
(at 477), Lord Shaw of Dunfermline
famously warned ‘in the darkness of secrecy, sinister interest
and evil in every shape
have full swing.’
[22]
Dr Lawrence McNamara
[27]
makes
the point that:
‘
As
well as helping to ensure the fairness of trials and being a
dimension of free speech rights, open justice also has broader
implications for democratic governance and government accountability.
The government derives its authority from the democratic process.

Executive action should, in theory at least, be carried out in the
public interest. The public are able to express this interest
through
a variety of forums and channels, the most obvious being general
elections.  In order for the public to be able to
express its
opinion in an informed way, it is heavily reliant on the media’s
ability to scrutinize the executive.’
T
he
big-picture view of open courts is thus that it protects those on
trial not just from the unfair application of the law, but
crucially
and in the long term, from unfair laws.
[28]
Open
justice therefore serves democracy as much as it serves justice. It
allows voters to review the outcomes of current laws and
to advocate,
if needs be, for law reform.
[29]
This
is an essential feature of a flourishing democracy, because, and this
cannot be emphasised enough, more openness and visibility
about
government activities helps to build citizens’ trust in their
government. Even where national security is concerned
and there are
frequent restrictions on public access to evidence or information, as
Dr McNamara points out, limiting public access
to evidence on
national security grounds is invariably controversial because the
decision to impose restrictions will often be
based on information
which is itself secret and cannot be publicly tested.
[30]
[23]
Reverting then to the judgment of the high court – it did not
provide a precise formulation of the implied undertaking
rule.
[31]
Jenkins
J first coined the expression ‘implied undertaking’ in
1948 (
Alterskye
v Scott
[1948]
1 All ER 469)
.
Until
then, the court often required an express undertaking before ordering
production of particularly confidential or sensitive
documents.
In
Home
Office v
Harman
[1982]
1 All ER 532
(HL),
it
was held that the rule continued to bind the parties to a matter even
after the hearing. That aspect of the rule was successfully

challenged before the European Commission of Human Rights.
[32]
As
a result, in 1987 the legislature changed the law so that it would no
longer be a contempt of court to make public material contained
in
documents compulsorily disclosed in civil proceedings once those
documents had been read out or referred to in open court.
[33]
In
April 1999 the Rule was codified in the Civil Procedure Rules 1998
(CPR) as a self-contained provision.
[34]
The
English codification sought to introduce uniformity in part because
prior cases were inconsistent.
The
general rule under CPR r. 31.22 is that a party to whom a document
has been disclosed may use such document only for the purposes
of the
proceedings in which it is disclosed. There are three exceptions
however, namely, where: (a) the document has been read
to or by the
court, or referred to, at a hearing that has been held in public; (b)
the court gives permission; or (c) the party
who disclosed the
document, and the person to whom the document belongs agree.
While
the rule generally binds third parties, a court may grant the Crown
leave to use material covered by the rule as evidence
for the
prosecution in criminal proceedings.
[35]
In
some cases third parties are not bound and a court may, in the public
interest, allow a third party to use material disclosed
in breach of
the rule without leave of a court.
[36]
[24]
The rule is applied in Australia,
[37]
but
does not appear to have found universal favour. In a minority
judgment in
Hearne
v Street
[2008]
HCA 36
(6 August 2008),
Kirby
J pointed out that there has been recognition in both England and
Australia that the rationale for the rule is looking ‘rather

threadbare’ and that the arguments for a court continuing to
uphold and enforce the rule left him ‘unconvinced’.
There
appear to be differences in the application of the rule there. The
Australian Federal Court Rules provide that the rule ceases
to apply
to any document after it has been read to or by the court or referred
to in open court in such terms as to disclose its
contents unless the
court otherwise orders.
[38]
In
the State of Victoria, however, there is a distinction between
original documents that exist independently from and generally
prior
to the litigation and those produced solely for the purposes of
litigation such as witness statements. In the case of the
former, the
rule remains in force even if those documents had been tendered in
evidence in open court and, in the latter, the rule
applies only
until the witness statement passes into evidence.
[39]
The
rule generally applies to third parties, including journalists and
other non–parties who acquire the documents and who
are
compelled to seek leave to be released from the undertaking to be
able to use it.
[40]
In
Victoria, third parties are permitted to inspect the documents to
determine whether they wish to use them and whether they wish
to
apply for them to be released from the undertaking.
[41]
A
court may in the public interest grant a release from the rule to
allow for evidence to be used in a criminal investigation and

prosecution.
[42]
[25]
The rule was first introduced in Canada in 1985. In some provinces,
the rule exists as part of the common law while Ontario,
Manitoba and
Prince Edward Island have codified the rule.
[43]
The
implementation varies significantly across Canadian jurisdictions. An
issue on which there is no uniformity is whether the rule
remains
operative for an indeterminate period or expires when the information
to which it pertains is introduced in open court.
The divergence
arises from the tension between wanting to preserve confidentiality
on the one hand and a resistance to creating
the anomalous situation
that third parties can access information but the recipient of the
discovery cannot use it on the other.
For that reason, the rule
usually ceases to apply once the discovered document is presented in
open court. In three provinces -
British Columbia, Alberta and Nova
Scotia - the rule ceases to operate only when the court so
orders.
[44]
Unlike
in England and Australia, the Canadian Supreme Court
[45]
refused
to grant a release from the rule to allow material covered by it to
be used as evidence in the prosecution of serious criminal
charges.
[26]
The rule does not form part of the law in the United States of
America. It is for the party making production to obtain an
express
agreement of confidentiality from the receiving party or a protective
order from court. Absent an express confidentiality
agreement between
the parties or an order of court, there are no restrictions on the
uses to which materials received on discovery
may be put. If the
agreement seeks to maintain confidentiality beyond the pre-trial
stage it is likely to raise public policy and
First Amendment issues.
Once the material is filed at court, the principle of public access
to court records creates a presumption
that the material will be
available to the public.
[46]
[27]
The rule is not part of our law. Only three earlier reported South
African authorities have referred to the rule. In the first,
Crown
Cork
&
Seal
Co Inc & another v Rheem
South
Africa (Pty) Ltd & others
1980
(3) SA 1093
(W), Schutz AJ, recognised at the commencement of his
judgment that there appears to be no direct authority in South Africa
as
to whether a court ‘may place limitations upon a litigant’s
ordinary right of untrammelled inspection and copying of
documents
discovered by his opponent . . .’. After usefully summarising
the position as it obtained in England, the learned
judge posed the
question (at 1098F-G) whether the ‘English practice may be
adopted in South Africa, and if it may, whether
it should?’
Implicit in that statement, it seems to me, was the recognition that
the English practice was not yet a part
of our law. Although he did
thereafter state (at 1099H) that in his view ‘it is open to a
South African court to adopt the
English practice’, he
proceeded to decide the matter in accordance with our rule 35(7). I
do not read the rest of the judgment
as having, one way or the other,
affirmatively answered the question earlier posed by the learned
judge. The high court appears
to have been plagued by similar
uncertainty when it stated: ‘[I]f there be any doubt that the
judgment in
Crown
Cork
has not already done so, the time has come to hold unequivocally that
the rule does form part of our law. . .’.
[47]
In
the second -
Replication
Technology Group & others v Gallo Africa Ltd
2009
(5) SA 531
(GSJ) - which considered whether documents disclosed
during arbitration proceedings between the parties could be relied
upon in
related contempt proceedings, Malan J stated (para 17) that
he did not have to determine whether the rule forms part of South
African
law because the use of the documents in question was
permitted by a recognised exception to the rule in that case. The
third –
Mathias
International Ltd & another v Baillache & others
2015 (2) SA 357
(WCC) – also a judgment by Binns-Ward J, held
in the context of Anton Piller proceedings that the applicant’s
supporting
affidavit in the
ex
parte
application
brought in that case to obtain a search order had contained such an
implied undertaking. The high court accepted that
no South African
court had made any ‘explicit determination’ that the rule
is part of our law and that we have hitherto
regulated access to and
dissemination of information forming part of the court record or
discovered documents which were regarded
as confidential, without any
invocation of the rule.
[48]
[28]
In adopting the rule, the high court appears to have invoked its
inherent power to regulate its own processes in terms of s
173 of the
Constitution.
[49]
That
our courts were endowed with such power even in our
pre-constitutional era is evident from the following dictum of
Corbett
JA: ‘There is no doubt the Supreme Court possesses an
inherent reservoir of power to regulate its procedures in the
interests
of the proper administration of justice . . . ‘.
[50]
Courts
now derive their power from the Constitution itself.
[51]
As
it was put by the Constitutional Court in
SABC
v NDPP
:
[52]
‘
This
is an important provision which recognises both the power of Courts
to protect and regulate their own process as well as their
power to
develop the common law. . . .  The power recognised in s 173 is
a key tool for Courts to ensure their own independence
and
impartiality. It recognises that Courts have the inherent power to
regulate and protect their own process. A primary purpose
for the
exercise of that power must be to ensure that proceedings before
Courts are fair. It is therefore fitting that the only
qualification
on the exercise of that power contained in section 173 is that Courts
in exercising this power
must take into
account
the interests of justice.’
(Footnotes omitted.)
But
the Constitutional Court did remind us that ‘it is a power
which has to be exercised with caution
[53]
and
sparingly having taken into account the interests of justice in a
manner consistent with the Constitution.’
[54]
[29]
In addition, s 39(2) of the Constitution makes it plain that, when a
court embarks upon a course of developing the common law,
it is
obliged to ‘promote the spirit, purport and objects of the Bill
of Rights.’
[55]
This
ensures that the common law will evolve, within the framework of the
Constitution, consistently with the basic norms of the
legal order
that it establishes.
[56]
The
Constitutional Court has already cautioned against overzealous
judicial reform. Thus, if the common law is to be developed,
it must
occur not only in a way that meets the s 39(2) objectives, but also
in a way most appropriate for the development of the
common law
within its own paradigm.
[57]
Faced
with such a task, a court is obliged to undertake a two-stage
enquiry: It should ask itself whether, given the objectives
of s
39(2), the existing common law should be developed beyond existing
precedent - if the answer to that question is a negative
one, that
should be the end of the enquiry.  If not, the next enquiry
should be how the development should occur and which
court should
embark on that exercise. None of these considerations merited even a
mention in the judgment of the high court.
[30]
Even were it open to the high court to invoke s 173, that section
does not empower a court to create a procedural rule in the
absence
of a lacuna. And it has not been suggested that the existing law is
insufficient. Moreover, s 173 did not empower the high
court to make
a law of general application.
Independent
Newspapers
[58]
stressed that a court had to consider the competing rights or
interests at stake on a case by case basis to ensure a fair trial.

According to the Constitutional Court, when there is a claim for
secrecy in respect of part of the court record, ‘the court
is
properly seized with the matter and is obliged to consider all
relevant circumstances and to decide whether it is in the interests

of justice for the documents to be kept secret and away from any
other parties, the media or the public.’
[59]
Independent
Newspapers
did
not authorise or contemplate the adoption by a court of a new rule
which would apply indiscriminately to all cases without regard
to the
circumstances.
[31]
A court attempting to transplant a rule from a foreign jurisdiction
should of necessity have regard to the differing constitutional

contexts between that country and this. The Constitutional Court
recently affirmed that the following principles apply in considering

the use of foreign law:
[60]
‘
(c)
The similarities and differences between the constitutional
dispensation in other jurisdictions and our Constitution must be

evaluated. Jurisprudence from countries not under a system of
constitutional supremacy and jurisdictions with very different
constitutions
will not be as valuable as the jurisprudence of
countries founded on a system of constitutional supremacy and with a
constitution
similar to ours.
(d)
Any doctrines, precedents and arguments in the foreign jurisprudence
must be viewed through the prism of the Bill of Rights
and our
constitutional values.’
All
law, in this country, must be grounded in constitutional values and
respect must be given to the fundamental rights set out
in the Bill
of Rights. The adoption of a rule from another country must be
considered in that context and in particular against
a constitutional
right of access to information held by the State regardless of the
reason, and a right of access to privately-held
information required
for the exercise or protection of any right.
[61]
[32]
In procedural matters, s 171 of the Constitution makes plain that
‘[a]ll courts function in terms of national legislation
and
their rules and procedures must be provided for in national
legislation’. A further bar to the adoption of the rule would

thus seem to be the doctrine of the separation of powers. There are a
number of reasons why a court is ill-suited to adopting the
rule.
They include the following: the rule, on the face of it, would appear
to be at odds with the default Constitutional position
- which makes
openness, access to information and free expression the norm, and
requires justification of an exception. The rule,
by contrast, makes
secrecy the default position. The content, timing, duration, ambit,
limitations on and enforcement of the rule
are complex matters
involving controversial and difficult policy considerations. This is
evident from the fact that where the rule
does apply in comparable
foreign jurisdictions, its content is not uniform. Questions of
whether such a rule is necessary, and
if so its content, are matters
that may well require public debate and consideration. This is a
legislative and not a judicial
task. If there is a deficiency, the
remedy lies in appropriate legislation or the amendment of Uniform
rules of court.
[62]
[33]
Although the high court shied away from any attempt at formulating
the rule, from its references to other jurisdictions, one
may infer
that it intended the rule to have some - if not all - of the
following attributes: A party may use discovered documents
only for
the litigation in which it is engaged and not for a ‘collateral’
or ‘ulterior’ purpose. Impermissible
‘collateral’
use includes use of information in different legal proceedings, use
as evidence of a serious criminal
charge, and the dissemination,
publication or distribution of discovered information in a pending
case. The rule applies not only
to the documents discovered, but also
to information derived from those documents and covers even innocuous
information that is
not confidential. The rule binds any third party
who receives the discovered documents. The rule applies as well to a
rule 53 record.
It ceases to apply at the latest when the matter is
placed before the court for hearing. Both the court and the party
making discovery
may authorise their dissemination, publication or
distribution. In matters of public interest, the court would tend to
allow general
access to the content of a court file at an earlier
stage, once pleadings in the case have closed and application has
been made
for a hearing date, or such a date has been fixed.  A
court may relax or modify the rule to meet ‘the exigencies of a

case that might afford sufficient reason to depart from its ordinary
incidence.’
[34]
In the event, and notwithstanding the fact that it had not properly
defined the rule, the high court appears to have been in
favour of
reformulating the rule - from what is not exactly clear:
‘
to,
in general, allow public access to the content of the court file,
including any information subject to the implied undertaking
rule
that has been included in the pleadings or affidavits, once a matter
has been set down for hearing, rather than only after
the matter had
been called in court, because this would conduce to more effective
open justice without unduly impinging on the
parties’ rights of
privacy. . .’
[63]
But
declined to do so because:
‘
I
do not consider that the current case affords a suitable basis to
undertake the exercise. It is one that in any event probably
would be
more appropriately addressed by the Rules Board after a process of
public participation.’
[64]
The
high court thus appears to have seen only the reformulation of the
rule, but paradoxically, not its adoption or initial formulation,
as
a matter for the Rules Board.
[35]
The high court held that the rule applies to discovered documents and
that since rule 53(1)
(b)
is ‘an incident of discovery in our law, by parity of
reasoning’ the rule derived from English law applies to rule

53(1)
(b)
.
Rule
53,
[65]
which
governs review proceedings in this country, is home-grown. In
Jockey
Club of South Africa v Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(A) at 660, Kriegler AJA explained:
‘
Not
infrequently the private citizen is faced with an administrative or
quasi-judicial decision adversely affecting his rights,
but has no
access to the record of the relevant proceedings nor any knowledge of
the reasons founding such decision. Were it not
for Rule 53 he would
be obliged to launch review proceedings in the dark and, depending on
the answering affidavit(s) of the respondent(s),
he could then apply
to amend his notice of motion and to supplement his founding
affidavit. Manifestly the procedure created by
the Rule is to his
advantage in that it obviates the delay and expense of an application
to amend and provides him with access
to the record. In terms of para
(b) of subrule (1) the official concerned is obliged to forward the
record to the Registrar and
to notify the applicant that he has done
so. Subrule (3) then affords the applicant access to the record. (It
also obliges him
to make certified copies of the relevant part
thereof available to the Court and his opponents. The Rule thus
confers the benefit
that all the parties have identical copies of the
relevant documents on which to draft their affidavits and that they
and the Court
have identical papers before them when the matter comes
to Court.) More important in the present context is subrule (4),
which
enables the applicant, as of right and without the expense and
delay of an interlocutory application, to “amend, add to or

vary the terms of his notice of motion and supplement the supporting
affidavit”. Subrule (5) in turn regulates the procedure
to be
adopted by prospective opponents and the succeeding subrules import
the usual procedure under Rule 6 for the filing of the
applicant's
reply and for set down.’
Kriegler
AJA emphasised at 662C:
‘
Our
Rule 53 and our practice for the review of decisions by extrajudicial
tribunals differs
toto caelo
from Order 53 of English practice. Indeed, virtually all they have in
common is the number.’
[36]
Rule 53 exists to facilitate applications for review. Thus the simple
equation by the high court of discovery to a rule 53
disclosure
appears inappropriate and unjustified. In terms of rule 53, the right
to require the record of the proceedings of a
body whose decision is
taken on review, is primarily intended to operate for the benefit of
the applicant.
[66]
While
there is a similarity between trial discovery and review proceedings,
inasmuch as in both a party is compelled to make disclosure
for the
purposes of litigation there are fundamental differences between the
two. Unlike rule 53, discovery is only undertaken
after the pleadings
have closed. The object of mutual discovery is to give each party
before trial, all the documentary material
of the other party so that
each, after the contours have already been drawn, can consider its
effect on his own case and his opponent’s
case and decide
whether to carry on at all and, if so, how to carry on the
proceeding. Discovered documents do not form part of
the record, and
are not before the court unless a party decides at the trial to make
use of them. It is therefore quite possible,
even likely, that many
of the documents which were discovered will never see the light of
day in court. In those cases, there may
possibly be reason to argue
that such privacy interest as originally existed, continues to exist
unless and until the documents
are used in the litigation. Review, on
the other hand, usually arises from the exercise of a statutory or
public power. When an
applicant in review proceedings files its
supplementary affidavit, after having had sight of the record, it is,
in effect fully
stating its case for the first time. Here, the City
has used the material in question for the purpose for which it was
provided,
namely in its SFA. The material is relevant. The high court
found that the information is not confidential or secret in the sense

that it requires sealing or other protection. It saw ‘no reason
why, when the review application gets to be heard, [the documents]

should be kept secret’. The approach of the high court appears
to be that the rule protects the right to privacy. The privacy,
so it
seems, would come to an end ‘at the latest’ when the
matter is placed before the court for hearing. What remains

unexplained though is what privacy can possibly exist in material
that: (a) has been used for the purpose for which it was provided;

(b) is relevant to the litigation; (c) is not secret or confidential;
and (d) in any event will be disclosed in due course.
[37]
Discovery impinges upon the right to privacy of the party required to
make discovery. According to Lord Denning MR,
[67]
‘
compulsion
is an invasion of a private right to keep one’s documents
private’. But while there is an interest in protecting
privacy
there is also the public interest in discovering the truth. The
purpose of the rule therefore is to protect, insofar as
may be
consistent with the proper conduct of the action, the confidentiality
of the disclosure. Litigants must accordingly be encouraged
to make
full discovery on the assurance that their information will only be
used for the purpose of the litigation and not for
any other purpose.
In that sense, so the thinking goes, the interests of the proper
administration of justice require that there
should be no
disincentive to full and frank discovery.
[68]
Those
considerations can hardly apply in respect of documents disclosed by
a public body in rule 53 proceedings. And, as rule 53
will only ever
apply to the disclosure of documents by public bodies, I entertain
some doubt as to whether such body can invoke
the right to privacy to
protect from disclosure documents relied upon by it to make its
decisions. That does not mean that public
bodies never have a claim
to keep their documents confidential. But any claim of
confidentiality arises from other interests such
as security or
perhaps even the privacy rights of persons mentioned in the
documents, but not from its right to privacy. It must
be remembered
that SANRAL did not plead any reliance on the right to privacy. It
claimed only a confidentiality right and not a
privacy right, and
then only in respect of the material in NOM2. That confidentiality
claim was rejected by the high court. The
production of the
administrative record is inherently necessary for a court to
undertake the task of determining the regularity
of the proceeding
sought to be impugned. ‘Without the record a court cannot
perform its constitutionally entrenched review
function’
(
Democratic
Alliance v Acting NDPP
2012 (3) SA 486
(SCA) para 37).
[38]
Section 32(1)
(a)
of the Constitution affords everyone ‘the right of access to
information held by the state’. Section 32(2) requires
national
legislation to be enacted to give effect to that right. The Promotion
of Access to Information Act 2 of 2000 (PAIA) is
the national
legislation in question. It establishes, in accordance with s 32 of
the Constitution, a default position of openness
in relation to
documents held by the State. Once a record is obtained under PAIA
there are no restrictions on how the information
may be used. PAIA
does not prevent persons who have obtained documents from the State
from further distributing them. Those documents
are public documents
and can be made publicly available. However, a person, in the
position of the City, who may obtain those self-same
documents
through review proceedings is, on the approach of the high court,
prohibited from using them and, what is more, would
appear to commit
an offence by doing so. In importing the rule into South African law,
the high court held that its breach would
lay the person concerned
‘open to being committed for contempt of court’. Without
quite appreciating it, the high court
appears to have created a new
crime or extended the definition of an existing crime. But, as
Schreiner ACJ observed in
R v Sibiya
1955 (4) SA 247
(A) at 256G-H, ‘it
is not for the Courts to create new crimes, nor is it for the Courts
to give an extended definition to
a crime’. And, in
Jayiya
v MEC for Welfare, Eastern Cape
2004
(2) SA 611
(SCA), this court held that the definition of contempt of
court may not be extended by a court.
[39]
Turning to the subrule: The high court interpreted the subrule
restrictively to permit only persons with a direct legal interest

access to a court file. Anyone else who seeks access must apply to
court. This interpretation applies to all court documents and
in all
cases (not just documents produced by way of discovery or in terms of
rule 53). It effectively seals court records which,
at least before a
hearing, would no longer be treated as public records. It does so
without regard to whether their contents are
in fact confidential or
should be secret, or whether it in fact serves a public interest that
it be available. The high court’s
approach to the subrule was
informed by its view that the subrule is ‘an important
administrative basis to support the implied
undertaking rule’.
The restriction of public access was so that ‘the effect of the
implied undertaking rule would not
be materially curtailed’.
The high court noted in its judgment that the parties had approached
the matter on the assumption
that once the pleadings had been filed
at court they became ‘generally open to the public’. But
that was in accordance
with the then prevailing practice in the high
court.
[40]
Rule 62(7) reads: ‘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’. {move next sentence back}
Section
39(2) of the Constitution enjoins courts when interpreting any
legislation and when developing the common law to promote
the spirit,
purport and objects of the Bill of Rights. That requires courts when
interpreting a statute (or in this instance a
rule of court) to avoid
an interpretation that would render the statute unconstitutional and
adopt an interpretation that would
better promote the spirit, purport
and objects of the Bill of Rights. The purpose is to find a
reasonable interpretation which
saves the validity of the subrule.
The subrule must be understood in the context of the whole of rule
62. Rule 62 deals with technical,
procedural and oftentimes plain
mundane matters. It is concerned with the preparation, filing and
inspection of documents. It specifies
the type of ink and paper that
must be used; deals with numbering and indexing; and affords the
registrar the power to refuse to
accept documents that do not comply
with the rule. It would thus be somewhat surprising that if the
drafters had meant to drastically
restrict access to court documents,
they would have done so in terms of the subrule. In the context of
the rule as a whole, the
subrule is better read as doing no more than
permitting the copying and examination of court records, which must
occur with the
registrar’s leave, at his or her office, rather
than as a substantive prohibition on access.
[41]
The high court held that ‘the expression “personal
interest” in the context of rule 62(7) connotes something

equivalent to a direct legal interest’.
[69]
It
thus interpreted the subrule to mean that the registrar may only
provide access to: (a) parties; and (b) those with a direct
legal
interest in the case. That requires the registrar to make a
determination as to whether or not a party has a direct legal

interest in the matter. It is entirely unclear how the high court
envisioned this determination would be made by the registrar.
[42]
The subrule uses the phrase ‘personal interest’. The
qualifier ‘personal’ can equally well be read
to mean any
person who is personally interested in the matter. The
amici
submitted that there are several pointers that this is not only the
only plausible - but also a preferable - interpretation of
the
subrule. First, the rules of this court,
[70]
the Constitutional Court,
[71]
the Land Claims Court,
[72]
the Labour Court
[73]
and the Magistrates’ Court,
[74]
all state that ‘any person’ may make copies of all court
documents in the presence of the registrar (or clerk). Only
the
Uniform rules qualify the phrase ‘any person’ with the
words ‘having a personal interest therein’.
Yet there
appears to be no reason in logic that would suggest that the
difference in wording requires a different approach in practice
in
the high court. The phrase ‘any person having a personal
interest therein’ is clearly capable of referring, as the
other
rules do, simply to ‘any person’. The ambiguity in the
meaning should therefore be resolved by adopting the meaning
that is
consistent with the unambiguous intent of every other rule in South
African courts on the issue. Second, this is how the
rule has in fact
been interpreted in practice. Prior to the high court judgment, that
was the practice in that court. With a few
exceptions, it remains the
default practice in most, if not all, the other divisions that any
person may obtain access to court
documents. This thus appears the
most natural interpretation of the subrule. Third, such an
interpretation, moreover, coheres with
how the phrase is used
elsewhere in the rules. The only other place the phrase ‘personal
interest’ appears is in rule
57. That rule requires an
application for the appointment of a
curator
ad
litem
to be accompanied by an affidavit of a person who knows the patient,
and two medical practitioners. If the person ‘has any
personal
interest in the terms of any order sought’ the affidavit must
disclose the ‘full details of such relationship
or interest’.
In addition, the medical practitioners should be people ‘without
personal interest in the terms of the
order sought’. It is
meant to capture those people who have an intimate or financial
relationship with the patient. That
appears to demonstrate that
‘direct legal interest’ is not the necessary, let alone
the most obvious, meaning of ‘personal
interest’ when the
phrase is used in the Uniform rules. In my view there is much to be
said for these submissions by the
amici
.
Textually, it appears the most plausible. It does not seek to give
the term personal interest a stretched or unnatural meaning.
It
adopts the ordinary meaning that: (a) is consistent with the
constitutional right to open justice; (b) is compatible with the

position in all other comparable courts as expressed in the rules and
as given effect to in practice; and (c) fits with the other
uses of
personal interest in the Uniform rules. Clearly, there is nothing
inherent in the use of the word interest that requires
it to be
interpreted to mean direct legal interest.
[75]
Indeed, it is the interpretation advanced by the
amici
that best promotes constitutional rights. It is, therefore, the
interpretation that this court should endorse. The high court’s

interpretation is inconsistent with the Constitution. It severely
limits the basic principle of open justice, and the rights to
public
hearings, freedom of expression and access to information for the
reasons described earlier. And it relies on a contrived
textual
interpretation. It makes the high court an outlier, with far more
restrictive rules of access than any other superior court.
It should
be rejected for all those reasons.
[43]
With a view to limiting the degree of violation, the high court held
that: (a) ‘the court may permit an inspection of
the record at
any time if it is appropriate to do so, and due cause is shown for a
departure from the usual consequences of the
rules’; and (b)
the prohibition in each instance operates only until the case is
called in open court. Neither procedure
materially ameliorates the
restriction, inasmuch as: First, an applicant, having no access to
the court file, may well have great
difficulty in making out a case
as to why such access should be granted. Such person is thus expected
to show ‘good cause’
without having had sight of the
papers, and would have to approach a court blindfolded, so to speak.
It may thus prove well-nigh
impossible for any third party to
intervene. In any event one would imagine that such an applicant
would need the papers before
the hearing in order to assess whether
or not they even wish to intervene. Second, the public generally may
have as legitimate
an interest in cases that never get heard in open
court, because they are settled or withdrawn, as in cases that are
called in
open court. It is not clear to me how or why the interest
of either the litigants or the public would materially alter simply
by
virtue of the fact that the matter has been called in open court.
One way or the other the parties have still chosen to engage in
court
proceedings. Even if a matter settles, it seems to me, that it should
still be subject to the requirement of openness, more
especially
where litigation involves public entities. For, the public will have
as real an interest in evaluating the court papers
to determine
whether the decision to settle or withdraw was justified. Third, it
is not possible for the media to report accurately
on court
proceedings if they can only access the documents once the case is
called. It is vital that the public be able to have
access to court
records prior to the hearing so that they can follow the proceedings
in open court. Without prior access to the
papers, the proceedings
will have less meaning for them. Moreover, having access to papers in
advance allows journalists to prioritise
reporting on matters of
public interest. Fourth, cases that are settled may also provide
vital evidence that reveals wrongdoing
and the public would be
entitled to know whether a case was properly settled, or whether the
settlement was influenced by some
improper motive. That can only be
determined by access to the papers. Fifth, an application for access
to papers is an additional
cost in time and money. In many cases,
people who otherwise have an interest in the matter may be unable to
afford an application
for access. While the high court attempts to
paint this option as enhancing access, in reality, it may prove an
insuperable barrier
to many, particularly litigants with limited
funds. This not only negatively affects access to justice, it may
disadvantage courts
who will be deprived of the benefit of the
submissions that
amici curiae
make.
[44]
Both the rule and the high court’s interpretation of the
subrule thus impinge on open justice by preventing the public
and
media from being able to scrutinise court proceedings before a matter
is heard. But there is a strong default position in our
law against
prior restraints on publication.
[76]
Prior
restraints ‘should only be ordered where there is a substantial
risk of grave injustice.’
[77]
A
blanket rule can hardly, without more, meet that high threshold. If
the rule and the subrule apply as found by the high court,
they
appear in my view to be almost certainly inconsistent with the
Constitution. The blanket and default prior restraint on publication,

as well, could hardly pass constitutional muster. The high court
pointed out that the City did not challenge the constitutionality
of
the subrule or bring a counter-application seeking leave to depart
from the incidents of the subrule. But the City could hardly
have
brought a counter-application or challenged a law: (a) which was not
then in use or relied upon by SANRAL but employed by
the high court
in support of a right to privacy, which was not pleaded; and (b) on
the basis of an interpretation which was not
advanced by SANRAL and
emerged only in the high court judgment.
[45]
In the present case, the demand for accountability arises with
particular force because of what is in issue in the review
proceedings. Secrecy 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. As Ngcobo CJ pointed out in
M&G
Media
,
‘[i]t is impossible to hold accountable a government that
operates in secrecy’.
[78]
On
that score
Justice
Brandeis of the US Supreme Court famously remarked that ‘[s]unlight
is said to be the best of disinfectants’;
electric light the
most efficient policeman.’
[79]
It
is a matter of fundamental importance to the administration of
justice that members of the public, who are directly affected
by the
controversial issue of tolling, be allowed access to all of the
arguments, the court records and the hearing of the review.
The
controversy would deepen if SANRAL were to ultimately succeed in
having the review application dismissed after a partially
secret
hearing. That would not serve the public interest or the interests of
justice.
[46]
Our law and practice already impose limits on the dissemination of
material produced by discovery or in terms of rule 53. They
include:
(a) the law of defamation; (b) the
actio
injuriarum
which protects both dignity and privacy, and which prevents the
publication of private facts’;
[80]
(c)
a court’s discretion under rule 35(7) to limit inspection of
discovered documents which are confidential (as in
Crown
Cork
);
(d) statutes which restrict publication of private and confidential
information;
[81]
and
(e) any reasonable limitation on the use of material which a court
may order in a particular case, exercising its power in terms
of s
173, to prevent an abuse of the rules of discovery or rule 53. There
are cases where parties have – as the City did
here –
voluntarily provided express confidentiality undertakings, or where
the courts have granted orders, tailored to the
circumstances of the
case, to protect allegedly confidential information, and provided
mechanisms to resolve disputes.
The
principle of open justice has its limits of course and concomitantly
a commitment to open justice does not mean that there should
always
be unrestricted reporting, nor that there may not be good and genuine
reasons why information should sometimes be restricted.
But whether
that be so, falls to be determined on a case by case basis. To be
sure, the science is unlikely to be exact and so
the task may not be
an easy one. Yet it can be accomplished if the court identifies and
carefully evaluates what is at stake on
both sides of the issue.
If
indeed the high court was satisfied that a proper case had been made
out (it evidently was not) it could have fashioned appropriate
relief
to meet the exigencies of the particular case instead of
impermissibly laying down – as it did - blanket rules.
[47]
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. 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. The high
court’s judgment,
which is inconsistent with that basic principle with regard to both
the rule and subrule, cannot be endorsed
by this court. Its
interpretation of the subrule creates a default rule of secrecy for
all court records. In addition, its application
of the rule limits
the ability of litigants to ensure publicity when they challenge the
actions of the State. In order meaningfully
to exercise the right to
open justice, members of the public (and the media) cannot simply be
relegated to the role of spectator.
While the gist of the matter may
be apparent to a person attending the hearing, it is only through an
understanding of the background
and issues raised on the papers that
proper comprehension and critical analysis of the proceedings, and
ultimately the court’s
findings, is possible. This is
especially so in motion proceedings, which are based on the
affidavits before the court and their
annexures, and where oral
evidence is not given in open court. This means that court challenges
to government action will be less
open than they currently are. 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.
[48]
It follows that as the high court was correct in dismissing SANRAL’s
application, costs, including those of three counsel
(which it was
accepted was necessary), obviously should have followed that result.
For the rest, the order of the high court cannot
stand and falls to
be set aside. In the result:
1.
The appeal is upheld with costs including the costs of three counsel.
2.
The order of the court below is set aside and replaced with the
following:
‘
The
application is dismissed with costs including the costs of three
counsel.’
_________________
V
M Ponnan
Judge
of Appeal
APPEARANCES:
For
Appellant: G Budlender SC (with him N Bawa and R Paschke)
Instructed
by:
Cullinan
& Associates, Cape Town
Cordiers,
Bloemfontein
For First
Respondent: J G Wasserman SC (with him G J Nel and I B Currie)
Instructed
by:
Fasken
Martineau, Sandton
Webbers,
Bloemfontein
For
Amici Curiae: W Trengrove SC (with him M Bishop)
Legal
Resources Centre, Cape Town
Honey
Attorneys, Bloemfontein
[1]
In
addition to SANRAL, which was cited as the First Respondent, Protea
Parkways Consortium, N1/N2 Overberg Consortium, GTIMV Consortium,

Minister of Transport, Minister of Water and Environmental Affairs,
Minister of Transport and Public Works, Western Cape Province,

Minister of Finance, Economic Development and Tourism, Western Cape
Province, N2/T2 Crisis Committee, Theewaterskloof Municipality
and
Breede Valley Municipality were cited as the Second to Eleventh
Respondents respectively. But as none of them participated
in the
appeal, nothing further needs be said about them.
[2]
The Amici include media organisations, public interest law firms,
research and advocacy institutions, non-profit organisations
that
fight corruption and institutions established to promote free
expression and access to information.  They are: Right2Know

Campaign, Section16, Open Democracy Advice Centre, Mandg Centre for
Investigative Journalism, South African National Editors
Forum,
Legal Resources Centre, Section27, Socio-Economic Rights Institute
of South Africa, Corruption Watch, Democratic Governance
and Rights
Institute, South African History Archive.
[3]
See
also in this regard
Baront
Investments (Pty) Ltd v West Dune Properties 296 (Pty) Ltd &
others
2014
(6) SA 286
(KZP) paras 80-82, 92 and 98.
[4]
Rt Hon B McLachlin PC ‘Openness and the rule of law’
address by the Honourable Chief Justice to the Annual International

Rule of Law Lecture on 8 January 2014 available at
http://www.barcouncil.org.uk/media/270848/jan_8__2014_-_12_pt.__rule_of_law_-_annual_international_rule_of_law_lecture.pdf
,
accessed 23 March 2015;
[5]
Rt Hon J J
Spigelman
AC ‘The Principle of Open Justice: A Comparative Perspective’
(September 20, 2005).
University
of New South Wales Law Journal
(2006) Vol. 29 No. 1 at 147-166; also available on the Social
Science Research Network at
http://papers.ssrn.com
,
accessed 30 March 2015. Address by t
he
Honourable JJ Spigelman AC, Chief Justice of New South Wales to the
Media Law Resource Centre Conference in London on 20 September
2005.
[6]
J J Spigelman op cit at 9.
[7]
Ibid
at 10.
[8]
B McLachlin op cit at 4-5.
[9]
R
v Legal Aid Board, ex parte Kaim Todner (a firm)
[1998] EWCA Civ 958
;
[1998]
3 All ER 541
at 549J-550B.
[10]
Detroit
Free Press v
John
Ashcroft
[2002] USCA6 281
;
303 F.3d 681
at 683.
[11]
Ibid
at 711.
[12]
Marais J
explained
in
Financial
Mail (Pty) Ltd v Registrar of Insurance & others
1966
(2) SA 219
(W) at 220F-G that: ‘Until 1813, in consonance with
the then universal practice in Holland . . . whilst judgments and
orders
of the Cape courts had to be pronounced in public, evidence
and argument in trial cases were heard in camera, with only the
parties
and their lawyers in attendance. The British Governor of the
Cape, in 1813, issued a proclamation requiring all judicial
proceedings
in future to be carried on with open doors as a matter
of “essential utility, as well as the dignity of the
administration
of justice”; it would imprint on the minds of
the inhabitants of the Colony the confidence that equal justice was
administered
to all in the most certain, most speedy and least
burdensome manner.’
[13]
Section 34 of the Constitution provides that: ‘Everyone has
the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before a court,
or where appropriate, another independent and impartial tribunal
or
forum.’
[14]
South
African Broadcasting Corporation v National Director of Public
Prosecutions
[2006] ZACC 15
;
2007
(1) SA 523
(CC) paras 30-31.
[15]
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services and
another, In Re Masetlha v President of the Republic
of South Africa
and another
2008
(5) SA 31 (CC).
[16]
These
included the rights contained in ss 16, 34 and 35(3)
(c)
of the Constitution and the founding values of the Constitution:
Independent
Newspapers
paras
39 and 40.
[17]
Independent
Newspapers
paras
42 and 43.
[18]
Independent
Newspapers
para
42.
[19]
Shinga
v The State & another
(
Society
of Advocates, Pietermaritzburg Bar as Amicus Curiae
);
O’Connell
and Others v The State
[2007] ZACC 3
;
2007
(4) SA 611
(CC) para 26.
[20]
SABC
v NDPP
2007
(1) SA 523 (CC).
[21]
Case
and Another v Minister of Safety and Security and Others
;
Curtis
v Minister of Safety and Security and Others
[1996] ZACC 7
;
1996 (3) SA 617
(CC) para 27.
[22]
Brummer
v Minister for Social Development
2009 (6) SA 323
(CC) para 63.
[23]
Ibid.
[24]
SABC
V NDPP
[2006] ZACC 15
;
2007
(1) SA 523
(CC) para 24;
Mail
and Guardian v Minister for Social Development
2009
(6) SA 323
(CC) para 63.
[25]
Midi
Television (Pty) Ltd t/a e-tv v Director of Public Prosecutions
(Western Cape)
[2007] ZASCA 56
;
2007
(5) SA 540
(SCA) para 6.
[26]
Khumalo
& others v Holomisa
[2002]
ZACC 12
;
2002 (5) SA 401
(CC) at para 24.
See
also
De Reuck v Director of Public Prosecutions (Witwatersrand
Local Division) and Others
[2003] ZACC 19
;
2004 (1) SA 406
(CC)
at para 49.
[27]
Dr
Lawrence McNamara is a Global Uncertainties Fellow and a Reader &
Director of Postgraduate Research at the School of Law
at the
University of Reading. See L McNamara ‘Opinion: Civil
liberties open justice and protection from terrorism’
(2010)
available at
http://www.debatingmatters.com/globaluncertainties/opinion/civil_liberties_open_justice_and_protection_from_terrorism/
,
accessed on 25 March 2015.
[28]
K Fitzpatrick ‘Courts need to expand view of open justice’
Irish
Times
of 16 June 2014 available at
http://www.irishtimes.com/news/crime-and-law/courts-need-to-expand-view-of-open-justice-1.1831537
.
[29]
Ibid.
[30]
Dr McNamara observes that
courts
face a dilemma where any party – but in practice usually the
government – claims that openness would result
in a danger to
national security and restrictions must be placed on the ability of
the public to scrutinize the judicial process.
On the one hand, the
court should be convinced that the danger is genuine and that
national security is not just being used as
an excuse to keep
politically embarrassing information from the public. On the other,
the courts may not always be in the best
position to judge whether
information will pose a danger to national security as it is the
executive government which arguably
has a more complete picture of
the circumstances and relevance of the information concerned. L
McNamara op cit.
[31]
The high court stated in para 40:
‘
The
notion of an “undertaking” is, however, somewhat
misleading. The use of the term arises from the original requirement

in the early 19
th
century of an express undertaking. Its
continued use is convenient in the context of characterising
breaches of the rule as contempt
of court in the sense of involving
the breaking of a national undertaking to the court.’ In
Bourns Inc v Raychem Corp
[1999] 1 All ER 908
at para 16,
Laddie J put the position more realistically when he explained that
the fiction of an implied undertaking was in
fact an expression of
the existence of a legal obligation:
“
The
implied undertaking not to make collateral use of documents
disclosed on discovery arises automatically as an incident of
the
discovery process. It is in no sense implied as a result of dealings
between the parties. The discloser may well not have
thought of the
implications of giving discovery and the disclosee may well not have
turned his mind to the matter of what use
he can make of the
documents outside the action. Had he thought of it, he might well
have wanted full freedom to do what he liked
with the material,
particularly if his own discovery is non-existent or very limited.
So the obligation is not to be likened
to a term implied in a
contract between the parties to the litigation. On the contrary, it
is an obligation to the court, not
the other party, which is
implied. It is for that reason that its breach is treated as
contempt. The obligation is imposed as
a matter of law.”’
(Footnotes omitted.)
[32]
Harman
v UK
(1985)
7 EHRR 146 (EComm).
[33]
RSC
Ord. 24, r. 14A (CCR Ord. 14, r. 8A).
[34]
CPR
r. 31.22(1)(a) states:
‘
Any
undertaking, whether express or implied, not to use a document for
any purposes other than those of the proceedings in which
it is
disclosed shall cease to apply to such document after it has been
read to or by the Court, or referred to, in open Court,
unless the
Court for special reasons has otherwise ordered on the application
of a party or of the person to whom the document
belongs.’
[35]
Rank
Film Distributors Ltd v Video Information Centre
[1982]
AC 380
(HL);
Attorney
General for Gibraltar v May and Others
[1999]
1 WLR 998.
[36]
In
re
Judicial
Review
[2010] NIQB 95
(17 September 2010): The Northern Ireland Queen’s
Bench refused to bar the use in professional misconduct proceedings
of
documents which had been disclosed in breach of the Rule. The
court held that the third party was not bound by the implied
undertaking
and could use the documents obtained as it was in the
public interest that the disciplinary charges proceed. This was
confirmed
in
H
v W
[2012] NIFam 8
(29 May 2012).
[37]
A
Stanfield and P N Argy
Electronic
Evidence
3ed paras 8.35 and 8.36 state:
‘
There is an
implied undertaking by the recipient of discovered material not to
use the discovered documents or material contained
in them for any
ulterior purpose other than the proceedings in relation to which
they were produced. A breach of this duty will
be punishable as
contempt of court. If discovered documents contain commercially
sensitive or confidential information, the court
may require the
party seeking inspection to give express confidentiality
undertakings and may limit the persons authorised to
inspect the
documents (most commonly to outside legal advisors).
The court may allow
a party, upon application, to use discovered documents for a purpose
other than conduct of the proceedings
in which they were discovered
if there are “circumstances which take the matter out of the
ordinary course” which
make such an exercise of the court's
discretion in the interests of justice. The same implied undertaking
not to use documents
for a collateral purpose applies to “wherever
the coercive power of the court has been employed to enable a person
to obtain
the documents of another” including in relation to
witness statements, answers to interrogatories, affidavits,
subpoenaed
documents and documents obtained pursuant to search
orders.’ See also
Australian Competition and Consumer
Commission v Allphones Retail Pty Limited (No 3)
[2009]
FCA
1075.
[38]
Federal Court of Australia, Federal Court Rules, No. 140 of 1979
Order 15 rule 18, provides:
‘
Any
order or undertaking, whether express or implied, not to use a
document for any purpose other than those of the proceedings
in
which it is disclosed shall cease to apply to such a document after
it has been read to or by the Court or referred to, in
open Court,
in such terms as to disclose its contents unless the Court otherwise
orders on the application of a party, or of
a person to whom the
document belongs.
’
[39]
British
American Tobacco Australia Services Ltd v Cowell (No 2)
[2003] VSCA 43
;
(2003)
8 VR 571
at para 43. See also R Williams ‘Implied Undertaking:
Express reform required’ Monash Law Review (Vol 34, No. 1)

which sets out the differences in the Federal code and State of
Victoria.
[40]
Esso
Australia Resources Ltd v Plowman
[1995] HCA 19
;
[1995]
183 CLR 10
at 37.
[41]
As
provided for in r 28.05 of the Supreme Court (General Civil
Procedure) Rules 2005 (Vic). See also
British
American Tobacco Australia Services Ltd v Cowell (No 2)
[2003] VSCA 43
;
(2003)
8 VR 571
at para 37. This was based on the rationale that since such
persons can only know the use to which they intend to put the
documents
once they have read and considered it, they should be able
to read them subject to the undertaking in order to determine
whether
to seek leave to be released from the undertaking. In
relation to documents tendered in evidence,
Cowell
is inconsistent with the course adopted in most other jurisdictions
but remains the Victorian position on the issue.
[42]
Andrew
Koh Nominees Pty Ltd v Pacific Corporation Ltd [No 2]
[2009]
WASC 207.
[43]
C
Papile
‘The Implied Undertaking revisited’
The
Advocates Quarterly
2006
at 191 and 194.
[44]
C
Papile
op cit at 191.
[45]
Juman
v Doucette
2008
SCC 8.
[46]
C
Papile
op cit at 193. A party may motion the court in terms of Federal Rule
of Civil Procedure 26(c) for a protective order to
keep disclosed
materials confidential.
[47]
Paragraph
57.
[48]
Paragraph
53.
[49]
Section 173 of the Constitution provides:
‘
The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice.’
[50]
Universal
City Studios Inc and others v Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986 (2) SA 734
(A) at 754G.
[51]
Phillips
& others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC) para 47.
[52]
SABC
v NDPP
[2006] ZACC 15
;
2007 (1) SA 523
(CC) para 35 and 36.
[53]
S
v Pennington and another
1997
(4) SA 1076 (CC).
[54]
Parbhoo
and others v Getz NO and another
1997 (4) SA 1095 (CC).
[55]
S
v Thebus
[2003] ZACC 12
;
2003 (6) SA 505
(CC) para 25;
City
of Tshwane Metropolitan Municipality v RPM Bricks (Pty) Ltd
2008 (3) SA 1
(SCA) para 20.
[56]
Pharmaceutical
Manufacturers Association of South Africa
;
In re
Ex
parte President of the Republic of South Africa
[2000] ZACC 1
;
2000
(2) SA 674
(CC) para 49.
[57]
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC) para 55.
[58]
Independent
Newspapers
para
45.
[59]
Independent
Newspapers
p
ara
55.
[60]
H
v Fetal Assessment Centre
(CCT
74/14)
[2014] ZACC 34
;
2015 (2) SA 193
;
2015 (2) BCLR 127
; (CC) para
31.
[61]
Section
32 of the Constitution.
[62]
Universal
City Studios Inc v Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986
(2) SA 734
(A) at 755J.
[63]
Paragraph
50.
[64]
Ibid.
[65]
Rule 53 provides:
‘
(1). Save
where any law otherwise provides, all proceedings to bring under
review the decision or proceedings of any inferior
court and of any
tribunal, board or officer performing judicial, quasi-judicial or
administrative functions shall be by way of
notice of motion
directed and delivered by the party seeking to review such decision
or proceedings to the magistrate, presiding
officer or chairman of
the court, tribunal or board or to the officer, as the case may be,
and to all other parties affected-
(a)
calling upon such persons to show cause why such decision or
proceedings should not be reviewed and corrected or set aside,
and
(b) calling upon
the magistrate, presiding officer, chairman or officer, as the case
may be, to dispatch, within fifteen days
after receipt of the notice
of motion, to the registrar the record of such proceedings sought to
be corrected or set aside, together
with such reasons as he is by
law required or desires to give or make, and to notify the applicant
that he has done so.
(2). The notice of
motion shall set out the decision or proceedings sought to be
reviewed and shall be supported by affidavit
setting out the grounds
and the facts and circumstances upon which applicant relies to have
the decision or proceedings set aside
or corrected.
(3). The registrar
shall make available to the applicant the record dispatched to him
as aforesaid upon such terms as the registrar
thinks appropriate to
ensure its safety, and the applicant shall thereupon cause copies of
such portions of the record as may
be necessary for the purposes of
the review to be made and shall furnish the registrar with two
copies and each of the other
parties with one copy thereof, in each
case certified by the applicant as true copies. The costs of
transcription, if any, shall
be borne by the applicant and shall be
costs in the cause.
(4). The applicant
may within ten days after the registrar has made the record
available to him, by delivery of a notice and accompanying

affidavit, amend, add to or vary the terms of his notice of motion
and supplement the supporting affidavit.
(5). Should the
presiding officer, chairman or officer, as the case may be, or any
party affected desire to oppose the granting
of the order prayed in
the notice of motion, he shall-
(a) within fifteen
days after receipt by him of the notice of motion or any amendment
thereof deliver notice to the applicant
that he intends so to oppose
and shall in such notice appoint an address within eight kilometers
of the office of the registrar
at which he will accept notice and
service of all process in such proceedings; and
(b) within thirty
days after the expiry of the time referred to in subrule (4) hereof,
deliver any affidavits he may desire in
answer to the allegations
made by the applicant.
(6). The applicant
shall have the rights and obligations in regard to replying
affidavits set out in rule 6.
(7). The provisions
of rule 6 as to set down of applications shall
mutatis mutandis
apply to the set down of review proceedings.’
[66]
Saccawu
v President Industrial Tribunal
[2000] ZASCA 163
;
2001 (2) SA 277
(SCA) para 7.
[67]
Riddick
v Thames Board Mills Ltd
[1997]
3 All ER 677
at 687-688.
[68]
Replication
Technology Group & others v Gallo Africa Ltd
2009
(5) SA 531
(GSJ) at 539D-F.
[69]
Paragraph
35.
[70]
Supreme
Court of Appeal Rule 4(3)
(a)
reads: ‘Documents filed for Court purposes are public
documents and may be inspected by
any
person
in the presence of the registrar.’ (My emphasis.)
[71]
Constitutional
Court Rule 4(6) reads, in relevant part: ‘Copies of a record
may be made by
any
person
in the presence of the Registrar.’ (My emphasis.)
[72]
Land
Claims Court Rule 4(4) reads: ‘All documents forming part of
the records in a case may be perused by
any
person
in the presence of the Registrar or any person designated by him or
her.’ (My emphasis.)
[73]
Labour
Court Rule 28(4) reads: ‘
Any
person
may make copies of any document filed in a particular matter, on
payment of the fee prescribed from time to time, and in the
presence
of the registrar, unless a judge otherwise directs.’ (My
emphasis.)
[74]
Magistrates’
Court Rule 3(5) reads: ‘Copies of the documents referred to in
rule 3(4) may be made by
any
person
in the presence of the registrar or clerk of the court.’ Rule
3(4) refers to all documents filed with the court. Magistrates’

Court Rule 63(6) reads: ‘
Any
person
,
with leave of the registrar or clerk of the court and on good cause
shown, may examine and make copies of all documents in a
court file
at the office of the registrar or clerk of the court.’ (My
emphasis.)
[75]
It is so that where this court was required to interpret a similar
phrase, namely ‘person with an interest’ in
Minister
of Environmental Affairs and Tourism & others v Atlantic Fishing
Enterprises (Pty) Ltd & others
2004
(3) SA 176
(SCA) para 14,
it
was willing to assume, without deciding, that it referred to ‘a
legal interest’. Streicher JA stated ‘I shall
assume in
favour of the appellants that the word “interest” should
be given the narrow meaning contended for by them.’
[76]
Midi
Television (Pty) Ltd t/a e-tv v Director of Public Prosecutions
(Western Cape)
[2007] ZASCA 56
;
2007
(5) SA 540
(SCA) para 15.
[77]
Print
Media South Africa and Another v Minister of Home Affairs and
Another Print Media South Africa and Another v Minister of
Home
Affairs and Another
2012
(6) SA 443
(CC) para 44-46.
[78]
President
of the Republic of SA v M & G Media Ltd
2012
(2) SA 50
(CC) para 10.
[79]
L
Brandeis ‘What Publicity Can Do’ in
Harpers
Weekly
of
20 December 1913 at 10.
[80]
NM
v Smith (Freedom of Expression Institute as Amicus Curiae)
[2007] ZACC 6
;
2007
(5) SA 250
(CC) para 34 and 55.
[81]
Such as
ss 33
to
37
of the
International Trade Administration Act 71
of 2002
and
ss 44
and
45
of the
Competition Act 89 of 1998
.