About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2014
>>
[2014] ZAWCHC 125
|
|
South African National Roads Agency Limited v City of Cape Town and Others; In Re: Protea Parkway Consortium v City of Cape Town and Others (6165/2012) [2014] ZAWCHC 125; [2014] 4 All SA 497 (WCC) (28 August 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case
no.6165/2012
DATE: 28
AUGUST 2014
REPORTABLE
Before: The Hon. Mr
Justice Binns-Ward
In the interlocutory
applications between:
SOUTH AFRICAN NATIONAL
ROADS AGENCY LIMITED
...........................
Applicant
And
THE CITY OF CAPE TOWN
AND OTHERS
................................................
Respondents
And
PROTEA PARKWAY
CONSORTIUM
................................................................
Applicant
And
THE CITY OF CAPE TOWN
AND
OTHERS
.................................................
Respondents
JUDGMENT: DELIVERED: 28
AUGUST 2014
BINNS-WARD J:
[1]
This judgment decides two interlocutory
applications. Both of them are related to a pending judicial
review application. They
were argued together because they concerned
similar issues.
SANRAL’s
application
[2]
The first matter is an application by the
South African National Roads Agency Limited (SANRAL) for an order
that would require the
supplementary founding papers of the City of
Cape Town in the pending review proceedings to be redacted so as to
keep secret certain
information which SANRAL contends should not be
released in the public domain. SANRAL is a public company
established in
terms of the South African National Roads Agency
Limited and National Roads Act 7 of 1998 (‘the SANRAL Act’).
It is an organ of state as defined in para (b)(ii) of the definition
of the term in s 239 of the Constitution.
[1]
The City was placed in possession of the information concerned by
SANRAL in terms of rule 53 of the Uniform Rules of Court
and certain
related interlocutory directions given by the court. The
information is derived from or is part of the relevant
administrative
record of decision in the review proceedings.
[3]
SANRAL had provided the information subject
to the recipients being restricted to the respondent parties’
legal representatives
and the client representatives and witnesses
with whom the legal representatives required to consult.
Furthermore, all such
recipients were required to sign undertakings
to maintain the secrecy of the information. Precedent for the
procedure insisted
upon by SANRAL is afforded by a number of
judgments in which similar restrictions have been imposed in special
circumstances by
order of court; cf. e.g.
Crown
Cork & Seal Co Inc and Another v Rheem South Africa (Pty) Ltd and
Others
1980 (3) SA 1093
(W),
ABBM
Printing & Publishing (Pty) Ltd v Transnet Ltd
1998 (2) SA 109
(W) and
Tetra Mobile
Radio (Pty) Ltd. v Member of the Executive Council of the Department
of Works and Others
2008 (1) SA 438
(SCA) at para 14.
[4]
When agreeing to submit to the restrictions
demanded by SANRAL, the City’s attorneys reserved their
client’s position,
stating as follows in a letter to SANRAL’s
attorneys, dated 5 September 2013:
3.3
The City may place the allegedly confidential information before the
court
hearing the review application either publicly or in closed
affidavits, arguments and hearings.
3.4
If the parties cannot agree whether particular documents should be
dealt
with publicly 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.
3.5
It is recorded that the City does not at this stage concede the
validity
of any claim to irrelevance or confidentiality.
[5]
The
subsequent employment by the City of some of the affected information
in the supplementary founding affidavits that it was entitled
to
deliver in terms of rule 53(4) gave rise to a claim by SANRAL that
certain portions of the supplementary papers should be redacted,
and
that only the redacted papers should form part of the ordinary court
record. The City declined to submit to the restrictions
proposed by SANRAL and a directions hearing was convened in chambers
before the Deputy Judge President to determine the resultant
dispute. The Deputy Judge President ruled that the issue was
not one that was properly amenable to determination in a case
management context. She directed that SANRAL, if it wished to
persist in its claim that part of the record should be kept
under
seal, should formally institute an interlocutory application for
whatever relief it considered necessary. The ruling
was
consistent with the proper approach stated in analogous, but not
exactly similar, circumstances in
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of
Expression Institute as Amicus Curiae) In re:
Masetlha v President of
the Republic of South Africa and Another
[2008] ZACC 6
;
2008
(5) SA 31
(CC),
2008 (8) BCLR 771
at para 43.
[6]
By agreement between SANRAL and the City,
together with certain of the other respondents,
[2]
an order was made in chambers by the Deputy Judge President on 18
June 2014 establishing a timetable in terms of which any such
interlocutory application brought by SANRAL was to be prosecuted and
set down. The order directed that the record in the
interlocutory application would be temporarily under seal until ‘the
status of those papers is decided in the interlocutory
application’.
It was implicit in the order, and accepted by the parties, that the
supplementary founding papers, or
at least the unexpurgated version
thereof, would also be kept under seal pending the determination of
the application.
[7]
The
City’s attorneys contended that the interlocutory application
that was instituted by SANRAL shortly thereafter raised
constitutional issues, and that SANRAL was therefore in the
circumstances required to give notice of the proceedings in terms of
rule 16A(1). SANRAL contested the City’s contention,
whereupon the City gave such notice. The notice elicited
the
interest of two public interest groups, Right2Know and Section16,
whose object is the promotion of freedom of expression in
the wide
sense defined in s 16 of the Constitution.
[3]
These organisations sought, and eventually
obtained, the ‘consent’ of the other parties to intervene
in the interlocutory
applications as
amici
curiae
. Counsel appointed by the
two organisations appeared when the matter was called and sought to
claim audience on the basis
of the ‘written consent’ of
the other parties. Rule 16A(2) provides that a person may
obtain admission as an
amicus
with
the written consent of the parties in the case.
[4]
On enquiry, however, it immediately became
apparent that adequate consent was lacking because SANRAL was not
willing for the aspirant
amici
to
be provided with a copy of the papers, save on terms to which they
were not willing to submit.
[8]
In
my judgment, an agreement constituting ‘written consent’
within the meaning of rule 16A(2) must evince a practical
basis for
the intended participation of the
amicus
in the proceedings. It should indicate agreement on the
character of the contribution that the
amicus
wishes to make and as to the form in which it proposes to do so.
The provisions of subrule 16A(4),
[5]
which provide an important tool to assist the
court to manage the proceedings efficiently, cannot find a proper
foundation for operation
if the ‘written consent’ given
in terms of subrule 16A(2) does not meet these requirements. In
the circumstances
I was of the view that no basis had been laid for
effective assistance to be provided by the admission of the
organisations as
amici
and ruled that their possible admission to the proceedings would have
to be preceded by an application of the nature contemplated
in
sub-rules 16A(5)-(8). No such application was brought before
the conclusion of the hearing, but negotiations between the
legal
representatives of the organisations and the parties in the
interlocutory applications resulted in agreement that an order
could
be taken granting the organisations access to a redacted copy of the
papers in the interlocutory application. The organisations
were
content to take such an order, which was duly granted. Its
effect was to partially lift the seal placed on the papers
in the
interlocutory applications in terms of the order made by the Deputy
Judge President.
[9]
To
get back to the interlocutory applications themselves: It is
appropriate to sketch the context in which they were brought.
As
is well-known, by virtue of the extensive media coverage that has
been given to the case since its inception, the City
has applied for
the judicial review and setting aside of the declaration of parts of
the N1 and N2 national roads as toll roads
in terms of s 27 of
the SANRAL Act. One of the main struts of the City’s
challenge to the declaration is the allegation
that the decision to
declare the roads as toll roads was irrational because the Minister
of Transport approved the declaration
of the affected portions of the
N1 and N2 as toll roads without knowing what the cost of the project
or the toll fees would be,
and without considering whether the toll
fees would be affordable, or whether tolling would afford a
financially sustainable or
socio-economically appropriate means of
undertaking the work needed on the road routes in issue. The
City was granted an
interim interdict in May 2013 prohibiting the
conclusion by SANRAL of a contract with a concessionary for the
construction and
operation of the toll roads pending the
determination of the review; see
City of
Cape Town v South African National Roads Agency Ltd and Others
[2013] ZAWCHC 74
, 2013 JDR 1022 (WCC). As appears from the
judgment in the interdict application, a public procurement process
had been undertaken
for the purpose of identifying such a
concessionary. At the time the interdict was granted, Protea
Parkways Consortium (PPC)
[6]
had been identified, consequent upon the
procurement process, as the preferred bidder. Another
participant in the bidding
process, the N1/N2 Overberg Consortium
(Overberg Consortium), had been identified as the reserve preferred
bidder. SANRAL’s
BAFO
[7]
Evaluation Report, which was signed by SANRAL’s
project manager and issued in September 2011, provided a summary of
the tender
process. It recorded the announcement of the
preferred bidder, on 7 September 2011, and described the event
as the ‘
Official end of the Tender
Stage of the Project and start of the Negotiations to sign a
Concession Contract
’.
[10]
The
procurement process required SANRAL to negotiate with the preferred
bidder to conclude a concession contract. As also
apparent from
the interdict application judgment,
[8]
SANRAL had indicated in that application that it
anticipated being in a position to conclude a concession agreement
with the preferred
bidder, or failing that with the reserve bidder,
within a matter of weeks. The basis for the contemplated
agreement was a
draft concession agreement prepared by SANRAL, which
had formed part of the bid documentation. The bidders had been
required,
as part of their respective bids, to mark-up those portions
of the draft agreement that they would wish to vary and to provide a
fully motivated indication of how they would prefer the affected
provisions to be formulated.
[9]
The negotiation process would be limited to
achieving agreement on the portions thus marked-up. The
portions not marked-up
would be taken as uncontentious and
effectively agreed. It follows that the portions marked-up by
the preferred bidder would
not necessarily correspond with those
marked-up by the reserve preferred bidder, and, even if the portions
did correspond, the
proposed changes would no doubt differ from
bidder to bidder. The terms of the bid process provided that
only if the negotiations
with the preferred bidder were unsuccessful,
or if the preferred bidder were disqualified for any reason, would
SANRAL be permitted
to turn to the reserve preferred bidder, which
was bound to hold itself available for such a contingency. The
negotiations
would be premised on the respective bid submissions.
[10]
[11]
Judgment in the interdict application
appears to have frozen the position as at 21 May 2013. Although
nothing in the terms
of the interdict prevented SANRAL and PPC from
completing their negotiations, it is not apparent that they did so.
For present
purposes it may be assumed that they did not. Certainly,
that was the assumption upon which SANRAL’s counsel approached
the
argument of the current application by SANRAL that certain parts
of the City’s supplementary founding papers in the review
application should be kept under seal and made available to the other
parties and their respective legal representatives and witnesses
only
after such parties had formally undertaken to keep the information
confidential. Indeed, the suggestion in the papers
in the
second application before me (inconsistently with the intimation by
SANRAL when opposing the interim interdict application)
is that the
negotiation of the concession contract will be a process that is
expected to take several months.
[12]
SANRAL has now applied for orders in the
following terms (I quote from the notice of motion):
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 unredacted 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”
are raised and dealt
with;
9.
The First Respondent is
to pay the costs of the application;
10.
Such further or other
relief as the Court may deem appropriate.
It is thus apparent that
in terms of its notice of motion SANRAL sought a temporary seal in
respect of the material specified in
schedule NOM 1 and an
effectively permanent seal in respect of that described in schedule
NOM 2. The material identified
in schedules NOM 1 and NOM 2 to
the notice of motion was amended by SANRAL at the hearing. Its
extent was pruned down to
a minor extent, while some content of the
supplementary founding papers that had been originally left out was
inserted. The
amendment also addressed a measure of overlap
between NOM 1 and NOM 2, by which some parts of the supplementary
founding affidavits
had been identified in both schedules, at odds
with the scheme of differentiation contemplated in the formulation of
paragraphs
4 and 5 of the notice of motion.
[13]
The application of the confidentiality
undertakings given by the other parties to the review has not been
placed in issue.
There is no indication that any party to such
an undertaking threatens to break it. The issue in this
application concerns
something else: the sealing of part of the
record and the ambit of ‘open justice’. It seems to
me therefore that
no basis has been made out for the order sought in
terms of para 1 of SANRAL’s notice of motion. (It
bears mention
that it would necessarily follow, however, that any
content of the City’s supplementary founding affidavit to which
the public
or the representatives of any party to the review
application are not denied access consequent upon the determination
of the interlocutory
applications would,
pro
tanto
, no longer be subject to the
regime of secrecy imposed by the confidentiality undertakings.)
[14]
It was furthermore conceded at the hearing
that it would be inappropriate for me to purport to determine the
degree of openness
that should attend the hearing of the review
application. That is a matter in the province of the court that
will in due
course be seized of that hearing. SANRAL therefore
did not press for the relief sought in terms of paragraph 8 of its
notice
of motion. Its counsel (Mr
Wasserman
SC, assisted by Mr
GJ Nel
)
made it clear that the secrecy relief in respect of the material in
schedule NOM1 was sought only until the delivery of SANRAL’s
answering affidavit (paragraph 4 of the notice of motion would thus
fall to be read accordingly, to more limited effect than its
literal
tenor) and, in respect of the evidence identified in schedule NOM 2,
until otherwise directed by the bench seized
of the review (and not
permanently, as the terms of paragraph 5 of the notice of motion
might suggest).
[15]
Clearly, SANRAL’s object is to
prevent the content of certain parts of the City’s
supplementary founding papers being
made publicly available.
The Chief Executive Officer of SANRAL stated the position thus in
para 20-21 of SANRAL’s supporting
affidavit:
20.
SANRAL wishes to limit the disclosure of portions of the information
and documentation contained in the Supplementary Founding
Affidavit
prior to the dissemination of such Supplementary Founding Affidavit.
The City is however of the view that all information
and
documentation contained, and referred to, in the Supplementary
Founding Affidavit ought to be served and filed as a public
record,
and ought to be made available to the general public at large.
21.
SANRAL has accordingly launched this application in order to seek
specific declaratory relief, in respect of portions of the
confidential (and potentially inflammatory) documentation and
information contained in, and attached to, the City’s
Supplementary
Founding Affidavit.
[16]
The Chief Executive Officer of SANRAL
explained the dichotomous categorisation of the material in the
City’s supplementary
founding papers in terms of schedules NOM
1 and NOM 2 to the notice of motion as follows at para 72 -73 of
the supporting
affidavit:
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.
It is appropriate to consider the two categories
separately because in some respects they entail quite discrete
considerations.
The
schedule NOM 1 – related relief
[17]
SANRAL’s concern about the material
in schedule NOM 1 is that it has been employed by the City in
its supplementary founding
papers in order to cast the decision to
address the upgrading of the N1 and N2 freeways by means of a tolling
undertaking as financially
untenable; more particularly, by
purporting to show that the contemplated project has a demonstrably
negative costs-benefits ratio.
The City’s supplementary
founding papers include a number of affidavits by experts
commissioned by the City to investigate
and report on various aspects
of the proposed tolling project. These reports have been
premised on information derived from
the administrative record made
available by SANRAL in terms of rule 53 for the purposes of the
review application. The experts
had access to the information
on the basis of confidentiality undertakings of the nature described
earlier. SANRAL contends
that the City has, in part at least,
employed the information in its supplementary founding papers to put
the material into the
public domain for ulterior purposes. It
has not been suggested, however, that the allegations are
evidentially irrelevant
for the purposes of the review application.
[18]
SANRAL’s Chief Executive Officer
states that the adverse impression as to the feasibility and
socio-economic impact of the
tolling project created by these parts
of the City’s supplementary founding papers is unfounded and
based on misconceptions.
He promises that they will be rebutted
in SANRAL’s answering papers in the review (which in terms of
the currently
fixed timetable are due to be delivered a few weeks
hence). SANRAL alleges that the City’s ulterior purpose
in using
the information is political – namely, to work up
widespread public antipathy to the idea of tolling the roads.
In
support of its allegation, SANRAL attached to its supporting
affidavit copies of a number of media articles published during June
2014 in the lead-up to the meeting in chambers before the Deputy
Judge President mentioned earlier. The content of those
articles indicated that City politicians had made some play out of
SANRAL’s insistence on confidentiality on matters such
as the
costs of the tolling project and the level of tolls that would be
required to fund it.
[19]
It was clear from the written submissions
on behalf of the City filed in advance of the in chambers meeting
with the Deputy Judge
President that the City’s position was
indeed that, save in limited circumstances, which it contended were
not currently
applicable, documents filed of record in court
proceedings become publicly available upon being filed. The
relief sought
in respect of the material identified in schedule NOM 1
to SANRAL’s notice of motion will require a consideration of
the validity of that position.
[20]
The Chief Executive Officer of SANRAL
explained the applicant’s case in respect of the material
identified in NOM 1 as follows,
at paragraphs 79-81 of the supporting
affidavit:
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.
[21]
It is appropriate to commence the
consideration of the NOM 1- related relief by clarifying the status
of documents filed of record
in court proceedings, more particularly
their availability to the public and the extent to which the press is
free to report on
their content.
[22]
The City relied on the judgment in
Independent Newspapers
supra to contend that the default position is that documents filed at
court thereupon become publicly accessible and freely amenable
to
publication.
Independent
Newspapers
was a matter that arose from
an application by the press to have access to a court record in the
Constitutional Court that had
been sealed at the instance of the
Court
suo motu
because it contained material that had been classified as secret in
terms of legislation regulating national security. The
Court
treated of the issue under the rubric of ‘open justice’,
a term commonly encountered in the jurisprudence and
academic
literature of many jurisdictions apart from our own.
[11]
It held that the ‘default’ position was that the content
of the court file should be available for public scrutiny.
However, the approach adopted in the majority judgment in
Independent
Newspapers
is not dispositive of the
question that the current matter poses. This is because
Independent Newspapers
was concerned with access to an appellate record, and, moreover, to
papers that had been in the record and referred to in open
court when
the matter had been heard at first instance.
[23]
The question that presented in
Independent
Newspapers
was whether, in the context
just described, the classification of certain documents in the record
as secret in terms of the relevant
legislation justified keeping the
affected part of the record sealed. The Court held that once
classified information was
referred to in court proceedings the
question whether it should consequently come into the public domain
or not was one to be determined
by the court. Moseneke DCJ
articulated the premise thus: ‘Once the [classified] documents
are placed before a court,
they are susceptible to its scrutiny and
direction as to whether the public should be granted or denied
access.’
[12]
The point of departure (‘default position’) in any such
determination is one of openness.
[13]
This begs the question as to at what stage of the litigious process
it is properly said that documents are ‘placed
before the
court’. Does it happen when they are filed at the
registrar’s office, or when they are placed
before a judge
seized of hearing the matter in respect of which they were filed, or
only when the parties employ them by relying
on them at, or for the
purpose of, the hearing, say in heads of argument or in open court?
How do the mechanics of ‘open
justice’ work in the
applicable legal framework?
[24]
A
comparative survey illustrates that ‘open justice’ is a
concept that is defined with variable emphases in different
jurisdictions. In many countries the essence of the concept is
defined with the emphasis on the importance of the promotion
of
public confidence in the administration of justice by the conduct of
judicial proceedings in public, save in exceptional cases
– a
principle enshrined locally in s 34 of the Constitution and
s 32
of the
Superior Courts Act 10 of 2013
.
[14]
In South Africa’s Constitutional Court jurisprudence the
concept has been given a wider implication and has been held
to
manifest ‘a cluster or… umbrella of related
constitutional rights which include, in particular, freedom of
expression
and the right to a public trial…. The
constitutional imperative of dispensing justice in the open is
captured in several
provisions of the Bill of Rights’ including
16(1)(a) and (b) - the right to freedom of expression, which
includes freedom
of the press and other media as well as freedom to
receive and impart information or ideas - and
s 34
which
‘commands that courts deliberate in a public hearing’.
The articulation of the concept is similar in Canada.
[15]
The narrower formulation of the concept in countries like England and
Australia no doubt explains why documents filed of
record in court
proceedings in those countries are not generally accessible other
than to the parties to a suit and persons with
an objectively
determinable legal interest in it. In those countries it is
only when documents are employed in open court
that their content
becomes ‘public’. The effect of rule 62(7) of the
Uniform Rules and the incidents of the rules
concerning discovery in
the context of our law of civil procedure must be considered to
determine whether, notwithstanding the
apparent difference of
emphasis in the conceptualisation of ‘open justice’; our
law is effectively any different in
the respect relevant for current
purposes from that in places like England and Australia.
[25]
In this court access to the documents filed
with the registrar in any case is formally regulated by rule 62(7),
which provides:
‘
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
’.
I shall discuss the effect of that provision presently in the context
of SANRAL’s contention that it stands
in aid of its argument
limiting publication of certain content of the City’s
supplementary founding affidavits pending the
delivery of SANRAL’s
answering papers.
[26]
But even in the context of a concept of
‘open justice’ that includes freedom of expression as one
of its elements, it
is universally accepted that it is susceptible to
reasonable limitations. Section 36 of the Constitution states
the test
by which the permissible limitation of any basic right is to
be measured in this country. It applies equally when a cluster
or umbrella of rights is entailed. Section 36 provides that the
rights in the Bill of Rights may be limited only in terms
of law of
general application to the extent that the limitation is reasonable
and justifiable in an open and democratic society
based on human
dignity, equality and freedom. What then is the law of general
application that limits access to court records,
or which prohibits a
party to legal proceedings making its papers, or those served on it
by another party, available to strangers
to the proceedings, or which
affords a basis to prohibit or restrict the publication of their
content?
[27]
The only laws of general application that,
to my knowledge, might have a bearing are the law of defamation, rule
62(7) of the Uniform
Rules, the
sub
judice
rule, which our common law
adopted from that of England, the legal incidents of the compulsory
disclosure processes in civil litigation,
and the law that gives
superior courts the inherent power to regulate their own processes
and procedures. The latter is an
incident of the common law
that is expressly affirmed in s 173 of the Constitution. No-one
argued that the law of defamation
had any role to play in the current
matter.
[28]
As mentioned, SANRAL relies, in part, on
the provisions of rule 62(7) in support of the NOM 1 - related
relief. The commentary
on the sub-rule in Van Loggerenberg ed.
Erasmus, Superior Court Practice
suggests that it is related to a common
law rule 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. The nature of the common law rule and its
origin are not
discussed in the commentary. It appears to me
that it is the English common law that is referred to.
[29]
In
Ex Parte
Bothma: In Re R v Bothma
1957 (2) SA
104
(O), Van Blerk JP took exception to the publication in the
morning press of details of a matter that came before him later
in
the day. It would appear from the tenor of the learned judge’s
remarks that, having been assured by the registrar that
the papers
had not been made available by the court’s officials, he
inferred that their content had probably been disclosed
by one of the
parties’ legal representatives. The judge remarked that
where the registrar was prohibited from making
documents of record
publicly available, it was equally desirable (‘
ewe
wenslik
’) that legal
practitioners also abide by the rule, especially where publicity was
given to only one party’s case.
The only authority
offered in support of that observation was
Abt
v. Registrar of Supreme Court and Others
(1899)
16 S.C. 476.
[30]
Abt
’
s
case concerned an application to court for access to a court record
in a pending case not yet called for hearing in open court.
The
only issue for determination was whether the record was a public
record. It appears from the judgment that the applicable
rule
of court at the time, like rule 62(7), permitted any party to a cause
to search for and make copies of the pleadings, but
afforded no such
permission to strangers to the cause. De Villiers CJ was
prepared to countenance that a court record
became a public record
once judgment had been pronounced in the matter on the principle that
‘public interest requires that
the proceedings of Courts of
Justice should be public’, but, as many a case in which summons
had been filed never came to
trial, he considered that ‘there
exists no ground of public policy why the public should have access
to records showing against
whom summonses for debt have been issued
or defamatory charges made’. In a separate judgment,
Buchanan J, with
whom Maasdorp J concurred, held that
access to a court record could be permitted as of right only if the
court record were
a public record. In the face of evidence that
the practice of the registrar was ‘to file of record only the
documents
of a completed case, all others [being] destroyed’,
he concluded ‘[t]hat being the case, inchoate matters not yet
adjudicated
upon and which are liable to be utterly destroyed and not
yet kept in perpetuity do not come within the rule as to
inspection’.
Abt
’s
case thus did not afford any authority for the view expressed in
Bothma
supra.
[31]
In
Bell v Van
Rensburg, NO
1971 (3) SA 693
(C) at
722B-D, Baker AJ stated ‘
In ’n
hof se sakelêer word die dokumente wat geliasseer is vir die
publiek regtens toeganklik sodra die dokumente deel
van die oorkonde
word. Die vraag is nou, wanneer word dokumente en rekords van
getuienis deel van die oorkonde? Die antwoord hierop
is dat dit
geskied wanneer die saak afgehandel is. Terwyl die saak nog hangende
is, is die dokumente en enige getuienis wat afgeneem
is nog nie deel
van die oorkonde nie en het die publiek geen reg tot insae nie (
Abt
v. Registrar of Supreme Court and Others
,
16 S.C. 476
, waarna verwys word in
Visser
v Minister of Justice and Another
,
1953 (3) SA 525
(W) op bl. 527). Die reg van die publiek om insae te
hê nadat die saak afgehandel is, is afkomstig van die feit dat
'n hof
regtens ’n oordkondehof is
.’
[16]
[32]
The judgments discussed thus far were
limited in their ambit to the right of access to the content of the
court file in the registrar’s
office. They did not, save for
Bothma
,
deal with the question of the right of anyone to other means of
access to the information in the court file, or the right to
disseminate and publish such information.
[33]
In
Romero v
Gauteng Newspapers Ltd & Others
2002
(2) SA 431
(W) (a judgment delivered in 1997), Wunsh J held that
there was no general rule that makes it unlawful to publish the
content of
papers filed at court in respect of pending proceedings
before the matter is called in court. The learned judge’s
analysis
of the reported cases (he made no reference to
Bell
v Van Rensburg
or
Ex
Parte Bothma,
supra) led him to the
conclusion that such publication would be unlawful only if it
published defamatory matter – the publication
of such matter
not being privileged if the case had not been called in court –
or if its publication were substantially prejudicial
to the fairness
or effectiveness of the hearing in the pending proceedings. In
this regard, Wunsh J expressed himself
as follows at 440G-I:
I am unable to extract from these cases a general
principle that no reference may be made to the contents of a summons,
application
or notice of appeal, which does not reflect adversely on
the plaintiff, applicant or appellant, without his or her consent.
The
correct principle is that a person cannot publish material in
such documents in which a litigant disparages or defames a party
before the documents are dealt with in open court. By then the
victim would have been able to take all steps open to it to
deal with
the allegations, and the plaintiff, applicant or appellant would have
exercised his or her intention of proceeding with
the matter.
Further, that statements may not be published concerning a matter
which is
sub judice
which would affect the administration of
justice, ie if the publication could influence the cases. (
Maeder
v Perm-Us (Pty) Ltd
1939 CPD 208.)
[34]
The factual context of the case in
Romero
was, however, quite distinguishable from that in the current matter.
The case concerned an application to interdict the publication
of an
article concerning the listing of the applicant in the Government
Gazette in connection with a business practice deemed to
be harmful
in terms of the relevant legislation. The article referred in
passing, and only in general terms, to a pending
application
instituted by the applicant for the review and setting aside of the
decision to determine the applicant’s activity
as a harmful
business practice. The information published in the Government
Gazette was a matter of public record and a copy
of the application
papers had been made available to the journalist by the applicant’s
attorney.
[17]
Wunsh J recognised that the circumstances by which the
information in issue had come into the hands of strangers to
the
pending proceedings could have a bearing on the lawfulness of its
publication before the case was called. At p 443H,
the
learned judge remarked as follows in that regard: ‘
I
would add a rider: publication of the contents of a court document
before it is a subject of open court proceedings may be illegal
if
the document was procured unlawfully, for example by being removed
from a party's possession without its consent or by being
copied from
the original in the court file without the requisite leave in terms
of Rule 62(7) (cf
Janit and
Another v Motor Industry Fund Administrators (Pty) Ltd and Another
[1994] ZASCA 110
;
1995 (4) SA 293
(A) at 303F - 304A)
’.
[18]
[35]
In the current case the content of the bid
documents which underpin the passages that SANRAL wants to keep out
of the public eye
until it has delivered its answer was disclosed to
the other parties in the review application in terms of the rules of
court.
It is only by virtue of that compulsory disclosure that
the City, as the applicant in the review, obtained access to it and
became
able to use it for the purpose of supplementing its case.
If the registrar complies with rule 62(7), which she obviously
should, the City’s supplementary founding affidavit should
therefore be available only to the other parties and to any person
able to show a ‘personal interest’ in the pending
review. It has been argued,
[19]
I think correctly, that the expression ‘personal interest’
in the context of rule 62(7) connotes something equivalent
to a
direct legal interest; it does not cover mere curiosity.
[36]
Rule 62(7), however, only regulates access
to the content of a court file in the registrar’s office.
That begs the question
whether any other party who has any part of
the record in its possession, say on receipt of delivery to it of
papers in the cause,
may disclose it to strangers to the action.
The court in
Ex parte Bothma
was plainly of the view that it was not proper for that to happen.
However, as I have noted, the court cited no authority
in point in
support of its view, and, moreover, it refrained from doing anything
effective to enquire into or sanction what it
considered to be an
infringement of the rule. The judgment in
Romano
did not engage with that question
because in that case, as mentioned, the applicant who sought to
suppress the dissemination of
the material had itself (through its
attorney) supplied it to a journalist. Thus, apart from the
guidance that may be derived
from the judgments in
Independent
Newspapers
, which were also given in
distinguishable circumstances, there does not appear to be any South
African jurisprudence directly in
point.
[37]
The City’s counsel (Mr
Budlender
SC, assisted by Ms
Bawa
,
Mr
Paschke
and Ms
Saller
)
appeared to contend that the judgment in
Romero
was dispositive of the question whether
there was any restriction on the right to publish particulars of
pending court proceedings
before they are called in court. Let
me therefore begin an attempt to answer the question stated above by
saying at once
that I find myself in general agreement with the
statement of the law in
Romero
.
The judgment confirms that no privilege attaches in respect of the
publication of defamatory matter in the content of the
court file in
a pending matter before the matter is mentioned in open court.
Privilege would attach to a fair and accurate
report of defamatory
matter referred to in the course of an open hearing, assuming no
order exceptionally limiting publication
was of effect. The
judgment also confirmed that it would be unlawful to publish details
of the evidence in a pending case
not yet before the court if the
publication would be likely to prejudice the fairness of the hearing
or prejudice the determination
of the case. In the latter
respect, I consider that the judgment in
Romero
did no more than confirm an incident of the
sub
judice
rule.
[38]
The facts of the
Romero
case meant, however, that the judge
gave no consideration to the rule identified by the English courts
(‘the implied undertaking
rule’) that documents given in
the course of discovery may be used by the other parties only for the
litigation in which
they are engaged, and not for any ‘collateral
or ulterior’ purpose. The rule not considered in
Romero
is relevant in the current matter because, as observed previously in
the judgment in the interdict application, there is a close
correspondence between the effect of the provision in terms of rule
53(1)(b) by the respondent of an administrative record in review
proceedings and discovery in action proceedings.
[20]
Both procedures impose a regime of compulsory disclosure of documents
and information.
[39]
In
Crest Homes
plc v Marks
[1987] 1 A.C. 829
, [1987] 2
All E.R.1074 (HL), at 1078 (All ER), Lord Oliver of Aylmerton
observed:
It is clearly established and has recently been affirmed
in this House that a solicitor who, in the course of discovery in an
action,
obtains possession of copies of documents belonging to his
client's adversary gives an implied undertaking to the court not to
use that material nor to allow it to be used for any purpose other
than the proper conduct of that action on behalf of his client
(see
Home Office v Harman
[1982] 1 All ER 532
,
[1983] 1 A.C. 280).
It must not be used for any "collateral or ulterior"
purpose, to use the words of Jenkins J. in
Alterskye v Scott
[1948] 1 All ER 469
, approved and adopted by Lord Diplock in Harman's
case, p. 302. Thus, for instance, to use a document obtained on
discovery in
one action as the foundation for a claim in a different
and wholly unrelated proceeding would be a clear breach of the
implied
undertaking: see
Riddick v Thames Board Mills Ltd
[1977] QB 881.
It has recently been held by Scott J. in
Sybron
Corporation v Barclays Bank Plc
[1985] Ch 299
- and this must, in
my judgment, clearly be right - that the implied undertaking applies
not merely to the documents discovered
themselves but also to
information derived from those documents whether it be embodied in a
copy or stored in the mind. But the
implied undertaking is one which
is given to the court ordering discovery and it is clear and is not
disputed by the appellants
that it can, in appropriate circumstances,
be released or modified by the court.
I
referred to the implied undertaking rule in
Mathias International
Ltd and Another v Baillache and Others
[2010] ZAWCHC 68
, 2010 JDR
0234 (WCC) at para 48, and 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
and seizure order had contained such an implied undertaking.
[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.
[21]
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 notional 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.
[22]
[41]
SANRAL’s counsel contended for the
application of the implied undertaking rule in support of the relief
sought in SANRAL’s
notice of motion. The question whether
such a rule applies in this country was considered in some depth by
Malan J in
Replication Technology Group
and Others v Gallo Africa Limited In re: Gallo Africa Limited v
Replication Technology Group and Others
2009 (5) SA 531
(GSJ). That case involved an application by a
respondent in a pending contempt of court application to strike out
material
in the supporting papers in the contempt application.
The material comprised information obtained by applicant in the
contempt
application in the course of discovery that had been made by
the respondent in related arbitration proceedings. Malan J
dismissed
the application to strike out. In doing so, the
learned judge appears to have accepted that cogent grounds existed
for the
application of the implied undertaking rule in South Africa,
but assuming, without determining, that it did apply, he was able to
distinguish the applicant’s entitlement to rely on it on one of
the recognised exceptions to the rule, which allowed the
use in
contempt proceedings of material obtained through discovery in the
related principal proceedings. In that regard Malan
J followed
the approach enunciated in
Dadourian
Group International Inc & Ors v Simms & Ors
[2006]
EWCA 1745
,
[2007]
2 All ER 329
(CA)
at para 12,
in which Arden LJ observed that contempt of court proceedings are
integral, not collateral, to the action in respect
of which they are
launched. Malan J therefore found, in other words, that the
material was being used permissibly in the
context of the proceedings
in respect of which it had been disclosed through discovery.
[42]
It
appears from the discussion of the implied undertaking rule in
Replication Technology Group
that it applies also in Canada
[23]
and, in respect of civil action proceedings, in Australia.
[24]
In Australia, as in England, the so-called ‘implied
undertaking’ is now characterised as a substantive legal
obligation.
[25]
Malan J also pointed out that its application in South Africa
appears to have been accepted in the judgment in
Crown
Cork
supra. In the latter case,
Schutz AJ quoted with approval the remark by Lord Denning MR in
Riddick v Thames Board Mills Ltd
[1977] 3 All ER 677
(CA) at 678 that ‘[t]
he
reason for compelling discovery of documents in this way lies in the
public interest in discovering the truth so that justice
may be done
between the parties. That interest is to be put into the scales
against the public interest in preserving privacy and
protecting
confidential information. The balance comes down in the ordinary way
in favour of the public interest of discovering
the truth, ie in
making full discovery.
’
Malan J also drew attention to the Master of the Rolls’ further
remarks at 687g-688a: ‘‘
The
[document]
was obtained by compulsion.
Compulsion is an invasion of a private right to keep one’s
documents to oneself. The public interest
in privacy and confidence
demands that this compulsion should not be pressed further than the
course of justice requires. The courts
should, therefore, not allow
the other party, or anyone else, to use the documents for an ulterior
or alien purpose. Otherwise,
the courts themselves would be doing
injustice ... In order to encourage openness and fairness, the public
interest requires that
documents disclosed on discovery are not to be
made use of except for the purpose of the action in which they are
disclosed. They
are not to be made a ground for comments in the
newspapers, or for bringing a libel action, or for any other alien
purpose.
’ In
Crown
Cork
, Schutz AJ furthermore expressly
approved the following dictum by Megaw LJ in
Halcon
International Inc v The Shell Transport and Trading Co and Others
(1979) RPC 97
[26]
at 121: ‘
But it is in general
wrong that one who is thus compelled by law to produce documents for
purposes of particular proceedings should
be in peril of having these
documents used by the other party for some purpose other than the
purpose of those particular legal
proceedings and, in particular,
that they should be made available to third parties who may use them
to the detriment of the party
who has produced them on discovery
’.
[43]
As noted by Malan J at para 8 and 9 of
his judgment in
Replication Technology
Group
, ‘[r]
ules
of discovery constitute an inroad into an individual and a
corporation’s right to privacy in terms of s 14 of the
Constitution….
The rationale for the imposition of the implied
undertaking is the protection of privacy: “Discovery is an
invasion of the
right of the individual to keep his own documents to
himself. It is a matter of public interest to safeguard that right.
The purpose
of the undertaking has been to protect, so far as is
consistent with the proper conduct of the action, the confidentiality
of a
party’s documents. It is in general wrong that one who is
compelled by law to produce documents for the purpose of particular
proceedings should be in peril of having those documents used by the
other party for some purpose other than the purpose of the
particular
legal proceedings ...” However, it is also suggested that the
implied undertaking is owed not only to the court
but also to the
party providing discovery since the latter is entitled to release his
opponent from this undertaking by consenting
to a collateral use. A
further basis for the rule is the promotion of full discovery. The
interests of the proper administration
of justice require that there
should be no disincentive to full and frank discovery.
’
[27]
[44]
The judgment in
Romero
did not discuss any of these
considerations because the context of the case did not demand it.
I am thus of the view, contrary
to the submissions advanced on behalf
of the City, that the judgment is of limited assistance to the
determination of the current
matter.
Midi
Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions
(Western Cape)
[2007] ZASCA 56
;
2007 (5) SA 540
(SCA),
2007 (9) BCLR 958
,
[2007] 3 All SA 318
, on which the City’s
counsel also relied, is distinguishable for similar reasons; the
facts of the case did not implicate
the implied undertaking rule.
[45]
The City’s submissions did not
suggest that the rule against the collateral use of discovered
documents (and, by parity of
reasoning, also documents obtained in
terms of rule 53(1)(b)) did not apply in South Africa. Counsel
for the City did not
argue that the dicta in the South African
jurisprudence to which I have referred, which indicate a recognition
that the limitation
on the use of discovered documents imposed in
terms of the English rule applies locally, were misconceived.
The City’s
argument, as I understood it, was that the
acknowledged privacy considerations in play in the application of the
implied undertaking
rule have to be balanced with the implications of
the receiving parties’ right to freedom of expression,
including the right
to impart information. The City’s
counsel argued that the appropriate balance between the competing
constitutional
claims fell to be struck by making the rule applicable
only to information derived from discovered documents of a truly
confidential
character. Accepting the argument would entail
essentially discarding the implied undertaking rule because the
special treatment
of confidential information in the course of
litigation has always been dealt with quite independently of the rule
and on the basis
that different considerations apply.
[46]
The approach contended for by the City
finds some philosophical support in the position adopted by Lord
Scarman in his dissent (co-authored
with Lord Simon of Glaisdale) in
Home Office v. Harman
[1983] 1 A.C. 280.
Lord Scarman, however, did not suggest that
the implied undertaking rule should be discarded. He merely
reasoned that
its application should cease once the discovered
material had been employed in open court, which is, in fact, the
current position
in England. The approach contended for by the
City’s counsel is, moreover, not one that is followed either in
England
(where similar freedom of speech rights are applicable under
the European Convention on Human Rights
[28]
),
or in Canada (where the right to freedom of expression is
incorporated in section 2 of the Charter s.v ‘Fundamental
Freedoms’
[29]
).
[47]
In the Canadian Supreme Court’s
judgment in
Juman v Doucette
[30]
at para 5, Binnie J upheld a broad interpretation of the implied
undertaking rule and observed that it covered ‘
innocuous
information that is
[not]
confidential
…’
and, at para 25, he underscored the point, stating ‘
Indeed,
the disclosed information need not even satisfy the legal
requirements of confidentiality set out in
Slavutych
v. Baker
,
1975 CanLII 5
(SCC),
[1976] 1 S.C.R. 254.
The general idea, metaphorically speaking,
is that whatever is disclosed in the discovery room stays in the
discovery room
unless eventually revealed in the courtroom or
disclosed by judicial order
’.
[31]
[48]
The information in issue in
Juman
v Doucette
was liable to support
serious criminal charges against the party who had made discovery.
The Supreme Court of Canada held
that the importance of the implied
undertaking rule required that in matters in which contesting
considerations merited departures
from it, such departures should
occur only with the prior leave of the court. In Canada, an
applicant seeking modification
of or release from the implied
undertaking rule is required to demonstrate to the court on a balance
of probabilities the existence
of a public interest of greater weight
than the values the implied undertaking is designed to protect,
namely privacy and the efficient
conduct of civil litigation.
[32]
(The decision in
Edmonton Journal v
Alberta
[1989] 2 SCR 1326
, to which
counsel for the City directed attention, in which the Supreme Court
of Canada struck down s 30 of the Alberta Judicature
Act
[33]
as impermissibly infringing the Charter-given right to freedom of
expression did not implicate the implied undertaking rule.
The
import of the judgment as to the permissibility of publishing details
of pending cases not yet called in court was in material
respects
essentially similar to that of the judgment in
Romero
.)
[49]
A common law right of public access to
court files obtains in the United States of America, but as observed
by the US Supreme Court
in
Nixon v
Warner Communications, Inc
[1978] USSC
59
;
435 U.S. 589:
‘…
the right to inspect and copy
judicial records is not absolute. Every court has supervisory power
over its own records and files,
and access has been denied where
court files might have become a vehicle for improper purposes. For
example, the common-law right
of inspection has bowed before the
power of a court to insure that its records are not "used to
gratify private spite or promote
public scandal" through the
publication of "the painful and sometimes disgusting details of
a divorce case." …
Similarly, courts have refused to
permit their files to serve as reservoirs of libelous statements for
press consumption…,
or as sources of business information that
might harm a litigant's competitive standing, ...
It is difficult to distill from the relatively few
judicial decisions a comprehensive definition of what is referred to
as the common-law
right of access or to identify all the factors to
be weighed in determining whether access is appropriate. The few
cases that have
recognized such a right do agree that the decision as
to access is one best left to the sound discretion of the trial
court, a
discretion to be exercised in light of the relevant facts
and circumstances of the particular case.
Sharon
Rodrick notes in her article to which reference was made earlier
[34]
that there is considerable debate in America as to which documents
filed at court constitute ‘judicial documents’.
Thus, in many states the position appears to be that a document that
has been filed at court qualifies in terms of the common law
right to
access only if it is ‘material on which a court (has relied) in
determining the litigants’ substantive rights’.
[35]
On that approach there is little real distinction in regard to
accessibility with the position that obtains in England and
Australia.
[50]
In his judgment in the High Court of
Australia in
Hearne v Street
supra,
[36]
Kirby J observed that there had been recognition in England and
elsewhere that the concept of the implied undertaking rule
was
‘looking rather threadbare’.
[37]
The learned judge acknowledged that there are cogent arguments in
support of the maintenance of the rule,
[38]
but also listed a number of factors that militated in support of a
fundamental reformulation of the applicable law.
[39]
The latter included the notion that ‘[t]
he
rule … is burdensome on free expression in contemporary
Australian society, and is arguably too absolute
’.
Kirby J expressed himself in favour of a reformulation of
the rule, but found that the context of the matter
before the Court,
especially the acceptance by all the parties thereto of the
traditional approach for the purposes of their arguments,
made the
occasion unsuitable for an undertaking of the exercise. Similar
limitations apply in the current matter because
the City’s
arguments in support of a degree of openness that would entail a
fundamental departure from the implied undertaking
rule were premised
on the assumption that the judgments in
Romero
and
Independent
Newspapers
were directly in point. In
consequence, the arguments did not substantially engage with the
possibility of reformulating the
implied undertaking rule.
Thus, while I am also inclined in favour of a reformulation of the
rule 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 has been called
in court, because this would conduce to more
effective open justice without unduly impinging on the parties’
rights of privacy,
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.
[51]
The legal obligation imposed in terms of
the implied undertaking rule applies not only to the parties to whom
discovery is made,
but also to third parties such as the parties’
legal representatives, court officials, expert witnesses and indeed,
any person
who comes into possession of the information knowing that
it was obtained by way of discovery, or equivalent compulsion in
terms
of the rules of court. Thus, in the Appellate Division of
the Supreme Court of Western Australia’s judgment in
Hamersley
Iron Pty Ltd v Lovell
(1998) 19 WAR 316
at 334-335, Anderson J (Pidgeon and Ipp JJ concurring) said:
‘The implied undertaking is binding upon anyone into whose
hands the discovered documents come, if he knows that they were
obtained by way of discovery’. As the High Court of
Australia noted in related vein in the joint reasons of Hayne, Heydon
and Crennan JJ in
Hearn v Street
supra, at para 111:
If this principle did not exist, the “implied
undertaking” or obligation on the litigant would be of little
value because
it could be evaded easily. That is why Lord Denning MR
said in
Riddick v Thames Board Mills Ltd
[[1977
3 All ER 677
(CA)]: “The courts should ... not allow the other party - or
anyone else - to use the documents for any ulterior or alien
purpose.
Otherwise the courts themselves would be doing injustice.”[at
687g] And in the same case [at 694d] Stephenson LJ
also said: “[I]t
is important to the public and in the public interest that the
protection should be enforced against anybody
who makes improper use
of it.” Use with knowledge of the circumstances would be
improper use.
The ambit of the operation of the obligation, if it applies in South
Africa, would thus render the confidentiality undertakings
stipulated
by SANRAL legally superfluous, save insofar as concerns material that
is independently deserving of being kept private
such as information
that is confidential in the true sense of the word (see e.g.
Dunn
and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape)
(Pty) Ltd
1968 (1) SA 209
(C),
Meter Systems Holdings Ltd v
Venter and Another
1993 (1) SA 409
(W) at 428 – 432 and
Alum-Phos (Pty) Ltd v Spatz and Another
[1997] 1 All SA 616
(W) at 623-624), which would be susceptible to protection even beyond
the time when the restrictions under the implied obligation
rule had
ceased to apply.
[52]
Returning to home shores. Five
provisions of the Bill of Rights appear to me to bear on the
provision of an answer to the
question; viz. the right of everyone to
have any dispute that can be resolved by the application of law
decided in a fair public
hearing before a court (s 34); the
right of access to information (s 32); the right to freedom of
expression, and, in
particular, its inclusion of the freedom to
receive or impart information or ideas and the freedom of the press
and other media
(s 16); the right to dignity (s 10) and the
right to privacy (s 14). None of these rights is absolute
in nature.
All of them are subject to limitation on the basis
provided in terms of s 36 of the Constitution. In the
context of
litigation, the applicable procedural law would be a
pertinent consideration in the application of s 36.
Furthermore,
situations frequently arise when the exercise of the
respective rights can bring them into tension or competition with one
another
in a practical sense. In such situations it is
necessary to weigh the competing considerations in the scales to
determine
the applicable limits of the expression of the respective
rights concerned. It is the exigencies of the given
situation
that will determine on which side the scales should incline
because there is no order of preference in respect of the rights.
[53]
The procedure of discovery (of which rule
53(1)(b) is an incident) in our law of civil procedure is taken from
the English law.
[40]
Discovery is a procedure peculiar to jurisdictions whose civil
procedural law is based on that of England. It is apparently
not encountered in the European civil law jurisdictions.
[41]
The limited South African jurisprudence in point, to which I have
referred above, appears to recognise that there is good
reason to
apply the implied undertaking rule as an incident of discovery in our
own law of civil of procedure. There has,
however, as far as I
am aware, been no explicit determination that it does apply, although
the judgment in
Crown Cork
supra
at 1098C-F might be read to have had that effect. The judgments of
the Constitutional Court in
Independent
Newspapers
, on which the City’s
counsel placed some emphasis, do not address the question. As
Moseneke DCJ stated in the
majority judgment,
[42]
the issue before the Constitutional Court in that matter was ‘whether
an
appellate
court record, under the authority and direction of [the] court,
should be made available to the media and the public’.
[43]
As mentioned earlier, the material concerned had been referred to in
open court during earlier stages of the principal proceedings
in the
magistrates’ court and in the High Court. Thus nothing in
the implied undertaking rule, as it is currently applied
in the
common law jurisdictions, would – absent the imposition of
special restrictions by a court - have prevented access
to it by the
public, or publication of it in the media. The essence of the
matter before the Constitutional Court in
Independent
Newspapers
entailed the determination
of a contention by one of the parties to the principal proceedings
that material that would ordinarily
have been in the public domain as
a consequence of the prior conduct of the case should be kept under
seal. The Minister
for Intelligence Services was seeking an
order in effect distinguishing the evidence in issue in that case
from the ordinary incidence
of the operation of the principle of open
justice. The implied undertaking rule was of no assistance to
the Minister in
Independent Newspapers
because the material had already been
referred to in open court.
[44]
Independent Newspapers
thus concerned the quite discrete question of whether and how a court
should determine the question of keeping secret or restricting
access
to material in court proceedings that ordinarily would have been
accessible by the public by virtue of its prior use in
open in such
proceedings. Moseneke DCJ’s statement
[45]
about the ‘default position’ has to be understood in the
context of what was in issue in the case.
[54]
The implied undertaking rule operates in
support of the constitutional right of everyone to privacy.
Properly applied, rule
62(7), quite incidentally, has a similar
effect. I propose to discuss each of them in that context and
with regard to the
rights they potentially adversely affect.
[55]
Like freedom of expression, privacy is not
an absolute right. The implied undertaking rule and rule 62(7)
do not stand in
the way of an appropriate balancing of the two
potentially contesting rights. 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.
The rules also do not in any way impinge on the
essence of open justice in the sense of the ability of the public and
the media
to scrutinise court proceedings. They both cease to
apply, at the latest, when the matter is placed before the court for
hearing. I would venture that in matters concerning questions
of public interest the court would incline favourably to any
application 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. The effect of the implied undertaking rule
would not be
materially curtailed by such an approach. Information or
material susceptible to privacy protection under the
rule would by
that stage have been affected by reference in or attachment to the
pleadings or affidavits in the case which is proceeding
to trial or
argument. It is also relevant to note that it is open to any
party who has disclosed documents or information
under compulsion in
terms of the rules of court to waive the benefit of the protection
against the extracurial use of the material
afforded in terms of the
implied undertaking rule. In the current matter, SANRAL appears
to be willing to do so in respect
of the material described in
schedule NOM 1 once it has delivered its answering papers.
[56]
I am not persuaded that either rule 62(7)
or the implied undertaking rule unacceptably impinges on the right of
access to information.
The right of access to information in
terms of s 32 of the Bill of Rights is regulated in terms of the
Promotion of Access
to Information Act 2 of 2000 (‘PAIA’).
In terms of the applicable principle of subsidiarity, the ambit of
the
right is prescribed by the provisions of the statute.
[46]
To the extent that access is sought after the commencement of
proceedings, s 7(1)(b) of PAIA clearly excludes access
to
information in a court file from the provisions of the statute.
Legal proceedings commence upon the issue of the initiating
process
in a case - a summons in action proceedings, or a notice of motion in
proceedings brought by way of application.
Up to the stage of
the hearing of the case, rule 62(7) regulates access to such
information. There has not been any challenge
to the
constitutionality of the subrule. There is thus no basis laid
in the papers before me for any contention that restricted
access to
the content of the court file in the manner provided by the subrule
infringes any person’s constitutional right
to access
information. On the contrary, the subrule provides an important
administrative basis to support the implied undertaking
rule.
It operates to limit the possibility of the court registry
unwittingly infringing the implied undertaking rule because
the
persons to whom the registrar is permitted to allow access to the
court file would be directly party to the implied undertaking,
or
entitled, by reason of their direct legal interest in the subject
matter of the litigation, to access to documentation disclosed
in the
case by the parties to the case in terms of the applicable rules of
court. The implied undertaking rule also does
not prevent
access to information in any unacceptable way. It does not
prevent discovered material being employed in court.
On the
contrary, it is widely recognised as a mechanism that encourages
fuller disclosure and thus, indirectly, assists towards
a court being
able to get to the truth of a matter; thus promoting the better
administration of justice. The operation of
both rules is
amenable to being managed by the court to meet the special exigencies
of a given case.
[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 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.
[58]
Rule 62(7) imposes a duty on the registrar
access to the court file in pending proceedings. It permits the
registrar to give
only any party to the cause and any person having a
personal interest therein, in the sense discussed above, access to
the documents
in the court file. The effect of the subrule in
the context of the current case is that many persons who have not
signed
the aforementioned confidentiality undertakings could obtain
access. Any authorised representative of the City, for example,
would qualify as representative of a party to the cause and be
entitled to inspect the file. The subrule does not, however,
oust the right of any person to apply to court for access to a file.
The court retains an overriding discretionary power
in such matters
by virtue of the inherent power, confirmed in terms of s 173 of
the Constitution, to protect and regulate
its own process taking into
account the interests of justice.
[59]
To make the affidavit and annexed material
subject to narrower access than provided in terms of rule 62(7),
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 NOM 1. Its
object in respect of the NOM 1 material is merely to avoid premature
publicity
to evidence obtained by the City through rule 53(1)(b).
As I have sought to explain, that material is in any event protected
from premature disclosure to persons who are not parties to the
application by operation of law.
[60]
Counsel submitted that rule 62(7) is not
complied with by the court registry in this Division. No
allegation to that effect
is contained in the papers. Assuming,
however, that the allegation made from the bar is to any degree well
founded, there
is no good reason for such non-compliance. As
their title implies, the rules of court are intended to apply
uniformly in
the High Court. Their currency has been confirmed
in the recently promulgated
Superior Courts Act, 2013
.
[47]
A member of the registrar’s staff that ignores
rule 62(7)
and
thereby assists in or gives rise to an infringement of the implied
undertaking rule (which, as explained above, applies as
a rule of law
of general effect) puts him or herself at risk of being held in
contempt of court. Contempt by a court official
would be
considered particularly seriously. I can record that in
consequence of the allegation made from the bar I have personally
directed the attention of the Chief Registrar to the subrule and she
will, in addition, be provided with a copy of this judgment.
I
am advised that additional measures have already been instituted by
the Chief Registrar to promote compliance with
rule 62(7).
[61]
It is plain that the relief sought in
regard to the material identified in schedule NOM 1 to the
notice of motion is predicated
on the assumptions that the court file
in the review application is generally open to the public and that,
after the filing of
its supplementary founding papers, the City would
be at liberty to distribute them, including to the media, uninhibited
by the
restraint of the implied undertaking rule. The City
appears to have shared those assumptions. I have sought to show
that the predicate for that part of the application is misconceived.
To the extent that the arguments advanced on behalf
of the City might
indicate that the City has laboured under a misapprehension as to
import of its obligations under the implied
undertaking rule or the
reach of the Constitutional Court’s judgments in
Independent
Newspapers
, I have no reason to believe
that it will not act in accordance with the precepts expressed in
this judgment. It is evident
that the City has thus far
conducted itself with caution and adherence to the confidentiality
undertakings that it has given.
Some assurance that it will
continue to do so, no doubt on the advice of its competent team of
legal advisors, is provided by its
freely provided undertaking, given
before delivery of this judgment, that it would not make available an
unexpurgated copy of its
supplementary founding papers until after
SANRAL had been afforded an opportunity to bring an application for
leave to appeal should
this judgment go against the Roads Agency.
[48]
[62]
The relief sought by SANRAL in respect of
the material in schedule NOM 1 is therefore unnecessary. No
purpose would be served
by granting it. The orders sought would
amount to prior restraint orders. If any such order were to be
disregarded
or infringed, the person concerned would lay him or
herself open to being committed for contempt of court. Breach
by any
person of the obligation imposed by the implied undertaking
rule would likewise give rise to liability for contempt of court.
The species of contempt involved in either situation would be
so-called ‘civil contempt’; in other words, the court
would engage with the contempt on the application of the offended
party. The contempt would not be dealt with by means of
criminal proceedings, as in a case of contempt in which there has
been a scandalising of the court. The
sub
judice
rules in South Africa have
traditionally been applied by means of contempt proceedings, rather
than prior restraint orders.
[49]
In the context of the issue raised by the relief sought with
reference to schedule NOM 1, this strikes me as the more appropriate
approach in the circumstances.
[63]
The City’s counsel referred in
argument to a number of considerations that they submitted militated
in favour of immediate
public access to the information that SANRAL
wishes to withhold, at least temporarily, from the media. But
there was no counter-application
by the City for an order granting it
leave to depart from the incidents of
rule 62(7)
or the implied
undertaking rule.
Schedule
NOM 2 –related relief
[64]
The reasoning given in respect of the
relief sought in respect of the material described in schedule NOM 1
is equally applicable,
of course, in respect of that described in
schedule NOM 2. As mentioned earlier, SANRAL’s counsel
conceded that the
relief sought in respect of schedule NOM 2 should
not extend beyond the hearing of the review. It would be for
the court
hearing the review to determine to what extent the content
of the papers before it should not be open to the public. It is
nevertheless appropriate to deal discretely, albeit relatively
briefly, with the NOM 2- related relief in order to do some justice
to the detailed argument addressed to me on the subject and in the
hope that doing so may avoid, or at least curtail, preliminary
issues
that the review court might otherwise have to determine. It is
also perhaps necessary to determine this part of SANRAL’s
application to clarify the basis on which those parties to the review
application who have not entered into special confidentiality
agreements with SANRAL may have access to the City’s
supplementary founding papers.
[65]
The Chief Executive Officer of SANRAL
motivated the relief sought in respect of the material identified in
schedule NOM 2 as follows
in the supporting affidavit to SANRAL’s
application:
THE
SECOND CATEGORY
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.
[66]
SANRAL’s claim that the competitive
character of the tender will be undermined if the information
contained in the material
identified in schedule NOM 2 is made
publicly available is expressed in broad and unsubstantiated terms in
the supporting affidavit.
The court was in essence invited to
independently search through the relevant documentation to ascertain
whether a case for secrecy
was sustainable. In my judgment that
is an unacceptable way for a party to go about establishing a case.
The deponent
to the supporting affidavit should have explained in
some detail why disclosure would have the prejudicial or harmful
effect contended
for. The documentation concerned should not
only have been identified, but the deponent should also have
specified the aspects
of its content that would have the allegedly
prejudicial effect if publicly disclosed, and explained how this
would be occasioned.
[67]
It is not apparent to me that the
disclosure of the bid documentation would have the effects contended
for by SANRAL. As mentioned,
[50]
its own documentation indicates that the competitive phase of the
tender project has been completed. SANRAL is committed
to
conduct negotiations in good faith with PPC to conclude the
concession contract. Overberg Consortium is not in competition
with PPC for that purpose. The ambit of contractual negotiation
that must occur with PPC is confined to the issues marked-up
by PPC
in its bid. Should negotiations with PPC fail and it then
become necessary for SANRAL to negotiate with the reserve
preferred
bidder, those negotiations will not necessarily be concerned with the
same issues that the negotiations with PPC would
have entailed.
[51]
The degree of correspondence between the two exercises will be
determined by the degree of correspondence between the two
marked-up
draft concession contracts submitted as part of the bids. The
supporting affidavit has not directed the court’s
attention to
any such correspondence, or sought to explain its materiality.
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. C
rown
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
.
[69]
SANRAL’s counsel relied heavily on
the judgment in
Bridon International
Gmbh v International Trade Administration Commission and Others
2013
(3) SA 197
(SCA) in support of this leg of the applicant’s
case.
Bridon
,
however, is distinguishable for a number of reasons. Firstly,
it was common ground in that matter that the information in
issue was
confidential and commercially highly sensitive, whereas the
confidentiality and commercial value of the information in
the
current matter is disputed by the City. Secondly, the party
claiming confidentiality in
Bridon
had, as part of the process of initial disclosure, provided a
motivated explanation of why each part of the documentation in
respect
of which it claimed confidentiality fell to be treated as
such, which explanation had been assessed and accepted by an
independent
statutory panel of relevant experts, whereas in the
current matter explanation and motivation by SANRAL has been
distinctly lacking.
And thirdly, the manner in which the
treatment of the confidential information fell to be handled in the
context of the proceedings
in
Bridon
was regulated by certain statutory provisions peculiar to the case,
which were held by the court also to apply in the context of
judicial
review proceedings; whereas in the current matter there is no
equivalent statutory scheme.
[70]
In the context of the indication that the
competitive phase of the tender contract has been completed, I am
also not persuaded that
there is any cogency in SANRAL’s
allegation that material bearing on the evaluation of the bids should
be kept secret.
The procurement process involved was bound to
occur in a manner compliant with the principles stated in s 217
of the Constitution.
[52]
Those principles include transparency. The transparency
requirement is an articulation of the Constitution’s
founding
premise of a state that values and gives effect to the concepts of
accountability, responsiveness and openness.
It is thus
unsurprising that in
Transnet Ltd and
Another v SA Metal Machinery Co (Pty) Ltd
2006 (6) SA 285
(SCA),
2006 (4) BCLR 473
;
[2006] 1 All SA 352
, at
para 55-56, it was recognised that bid information that might
enjoy confidentiality during the competitive phase of a
tender
process, would no longer do so once the contract was awarded.
For the reasons already mentioned, it does not seem
to me to be
material that in the current matter the selection of the preferred
bidder did not, by itself, result in the conclusion
of the tender
contract.
[71]
As recognised in
Transnet
supra loc cit, any person who participates in a tender process
subject to the s 217 of the Constitution and the related legislation,
such as the
Preferential Procurement Policy Framework Act 5 of 2000
,
must appreciate that much of the information that they disclose in
the process may be susceptible subsequently to public scrutiny,
certainly that much of it that is relevant to an assessment of
compliance by the organ of state concerned with the competitive
and
cost-effective character of the procurement concerned. Any such
public assessment will entail a consideration not only
of the bid of
the successful tenderer, but also of the unsuccessful bids, because a
comparative assessment is necessary to determine
whether there has
been compliance with the applicable constitutional and statutory
requirements. The undertaking by SANRAL
in the tender
documentation to maintain the confidentiality of the bidders’
information, save as otherwise required by law,
falls to be
understood in that context. As Howie P noted in
Transnet
at para 56, ‘Parties cannot circumvent the terms of [the
applicable legislation] by resorting to a confidentiality clause’.
[72]
In any event, for the reasons provided at
length in respect of the material itemised in schedule NOM 1, the
public and other bidders
like the Overberg Consortium (which is not a
party in the review application) will not have unregulated access to
the court file
before the review hearing. If the pace at which
the exchange of papers is proceeding in the pending review is
maintained
during the remainder of the pre-hearing process, the
completion of the papers and the accomplishment of a state of hearing
readiness
are unlikely to be achieved for some months yet. As I
mentioned earlier, nothing about the interdict prohibiting the
conclusion
of a concession contract before the determination of the
review barred SANRAL from proceeding with the negotiation process.
No reason has been offered as to why that process should not be
completed before the papers in the review application become more
generally available.
[73]
SANRAL claimed in broad-brush and
unsubstantiated terms that third party proprietary information would
be prejudiced were the redacting
relief sought by it not granted.
The City denied that its supplementary founding affidavit contained
any such information.
This was met in reply by SANRAL simply
with a bald denial. As emphasised by counsel for the City in
argument, SANRAL’s
founding papers claimed, incorrectly, that a
number of identified categories of documentation had been included in
the City’s
affidavit. PPC’s ‘engineering
model’ and ‘financial model’, the bidders’
funding plans
and the ‘proprietary information’ of
financial institutions were some of these. These documents are
not, in fact,
part of the City supplementary founding papers,
although a general outline of the preferred bidders’ funding
plans is to
be found in the BAFO evaluation report, which is an
annexure to the papers. The funding plans have in any event
served their
purpose, which was to provide some assurance that the
respective bids were predicated on a feasible financing
structure.
[53]
It was evident from the outset, however, that the actual financing of
the project would be determined by the outcome of a
funding
competition to be conducted after the conclusion of the concession
contract, which might, and I would venture probably
will, result in a
materially different financing structure to those postulated in the
bidders’ respective funding plans.
‘The debt
funding competition will be open to all potential funders (local or
international), including the Funding Advisors
of the Reserve
Tenderer and other unsuccessful tenderers.’
[54]
SANRAL has a determining role in the outcome of the debt funding
competition.
[74]
SANRAL contended in its supporting
affidavit that disclosure of the information identified in schedule
NOM 2 would result in a breach
of its obligations in terms of a
number of statutory instruments, namely PAIA, the Public Finance
Management Act 1 of 1999, the
Supply Chain Management Regulations,
and National Treasury Practice Note SCM 4 of 2003. These
claims, advisedly, were not
persisted in at the hearing.
[75]
As to the BAFO evaluation report and
related documents, which are contained in vol. 2-5 of the City’s
six volume supplementary
founding papers, SANRAL’s counsel
sought support for their argument that these should be excluded from
general access from
the unreported judgment of Schwartzman J in
VF Munisi Civils (Pty) Ltd and others v
Johannesburg Water (Pty) Ltd and others
[2006] ZAGPHC 117
(15 September 2006). The judgment determined
a counter-application by the first respondent in the case for the
delivery-up
of the minutes of a bid evaluation committee meeting that
had been obtained unlawfully by the first applicant. The
counter-application
was made in the context of the opposition by the
first respondent to an application by the applicants in the case for
interim interdictal
relief. The minute in question had been
annexed to the founding papers in the interim interdict application.
Schwartzman J
indicated in the opening paragraph of his judgment
in the counter-application that it ‘should be read with the
judgment [he]
handed down on 13 September 2006, in which [he]
dismissed with costs the Applicants’ claim for an interim
interdict against
the First Respondent’. The earlier
judgment is also not reported and counsel did not make a copy
available to me.
In the result I have been somewhat disabled
from obtaining a proper appreciation of the context in which the
judgment to which
I was referred was given.
[76]
The passage in the
Munisi
Civils
judgment relied upon by SANRAL’s
counsel is at para 5.1, in which Schwartzman J said ‘
The
minutes of the deliberations of a Bid Adjudication Committee that
evaluates and ultimately awards a tender are
prima
facie
not meant to be public
knowledge. What happens at such a meeting would, as a rule, only be
known to a restricted number of people.
The information furnished to
those at the meeting gives an insight into the conduct of all
tenderers’ businesses and, in
particular, their strengths and
weaknesses that the Committee must obviously keep confidential. Part
of this information is included
in the Committee’s minute. The
disclosure of such information to another tenderer would inevitably
give it an unfair commercial
advantage over fellow tenderers. For
this reason I do not intend to set out those parts of the minute that
are clearly confidential.
The minute has an economic value to the
First Respondent in that it can be used by it in the future when
similar tenders are being
adjudicated. These characteristics
establish that the minutes qualify as a document containing
confidential information as this
term is understood –
Alum-Phos
(Pty) Ltd v Spatz
1997 (1) All
SA 616
(W) at page 623
’.
[77]
It is clear, in my view, that the peculiar
context of the matter in hand materially informed what Schwartzman J
stated in the
passage relied upon by SANRAL. This is
illustrated by the learned judge’s reference to the commercial
advantage that
would be enjoyed by fellow tenderers if the
information were disseminated and his finding that the information
had an economic
value in that it could be used by the Johannesburg
Water in future when similar tenders were considered. It may be
assumed that
the evidence before the court in
Munisi
Civils
had established those
characteristics. I am therefore unable to accept that the
learned judge’s dicta were intended
to state a general
proposition of law, as SANRAL’s counsel’s reliance on it
would imply. I am not persuaded that
the minutes of a bid
evaluation tender committee meeting in respect of public procurement
are ‘
prima facie
not meant to be public knowledge’ after an award has been made.
An unqualified characterisation to such effect seems
to me to
sit uncomfortably with the requirement of transparency in terms of
s 217 of the Constitution. Furthermore,
for the reasons
given earlier, the evidence does not in any event support the notion
that fellow tenderers or SANRAL would enjoy
any commercial advantage
worthy of protection in the evaluation report. In the current
matter the dye has been cast insofar
as the selection of the
preferred bidders is concerned, and the project is unique in the
sense that it is not one in respect of
which any equivalent tender
invitation is likely to be issued.
[78]
SANRAL’s counsel sought in oral
argument to make up for the deficiency in SANRAL’s papers by
taking me to certain parts
of the City’s supplementary founding
affidavit and seeking to demonstrate how these illustrated the
prejudice that would
be occasioned by their disclosure in open
court. I have considered the passages to which I was directed
in this exercise.
[55]
I have not been persuaded on my perusal of the documents
concerned that their content substantiates a claim to confidentiality
at this stage of the contracting process. I reiterate that the
supporting affidavit contains nothing that would justify such
a
conclusion. But even if I should be misdirected in this regard,
there is nothing, in my judgment, that would justify preference
being
given to SANRAL’s right of privacy in the material over the
ordinary incidence of open justice when the documents are
used in the
review. It has not been suggested that they are irrelevant in
the review. The subject matter is one of
legitimate public
interest. The assertion of the right to privacy by an organ of
state in the circumstances has to be critically
assessed against the
counterweight of the effect of s 16 and s 34 of the Bill of
Rights. The context for the assessment
is provided by the
founding values of openness and accountability enshrined in s 1(d)
of the Constitution. Thus, subject
to the application of the
implied undertaking rule, I see no reason why, when the review
application gets to be heard, they should
be kept secret.
PPC’s
application
[79]
In the second matter before me, PPC applied
for an order directing that certain identified parts of the City’s
supplementary
affidavit, including the annexures thereto, be redacted
and placed in a ‘confidential file’. An order was
sought
that the information placed in the contemplated confidential
file would not be disclosed to the public, but only to the court
seized
of the review and the legal representatives and expert
witnesses of the other parties in the review application subject to
the
provision by the latter of ‘appropriate confidentiality
undertakings’. Twenty individual portions of the
supplementary
affidavit were listed in PPC’s notice of motion,
but at the hearing, the consortium’s counsel, Mr
de
Waal
, argued in support of only five of
them.
[56]
He explained that relief in respect the other fifteen portions was
not being abandoned. He stated that he considered
that they
fell to be sufficiently protected in terms of the relief sought by
SANRAL in respect of the material identified in schedule
NOM 1 to its
notice of motion.
[80]
The material in the five portions of the
City’s supplementary affidavit with which PPC’s counsel
chose to deal in argument
was, as I understood his submissions,
deserving of protection because of its alleged confidentiality and
because its disclosure
would prejudice the conclusion of a concession
contract. I have considered the portions concerned. It
was not apparent
to me on such consideration that there was any merit
in the allegations of confidentiality. It was not obvious to me
how
the information would be of any use to any third party, including
the Overberg Consortium, at this stage of negotiation of the
concession contract. I have already rejected, when determining
SANRAL’s application, the contention that there is a
materially
competitive element in the process of the negotiation of the
concession contract after the announcement of the preferred
bidders.
[81]
PPC’s application suffers in the same
way as SANRAL’s from the defect that its supporting affidavit
(deposed to by someone
who, perforce of circumstances, had not
himself perused an unexpurgated copy of the City’s
supplementary founding affidavit)
failed to reason or motivate the
broad-brush characterisations and conclusions stated in the
document. PPC’s counsel
sought to address this
shortcoming by proposing, in a note submitted after the hearing, that
the court should give a judgment defining
the applicable principles
and then leave it to the parties to try to reach agreement on what
material should be kept from the public
gaze and be available to the
other litigants only as against undertakings by them to preserve its
confidentiality. This belatedly
urged approach was supported
with the argument that, in preparing its application, PPC had been
confronted with the task of sifting
through and evaluating a vast
amount of material. It was pointed out that the City’s
supplementary founding papers, including
the annexures, run to
approximately 2 500 pages. It was submitted that PPC
‘should therefore not be non-suited
on the basis that it did
not define the passages to which its concerns relate in greater
detail’.
[57]
It was also contended that disposing of PPC’s application on
the approach suggested would be appropriate because ‘the
issue
of open justice is a novel area of law and the only guidance to be
found is the approach of the Constitutional Court in
Independent
Newspapers
’.
[58]
[82]
The City’s counsel objected to the
court considering the post-hearing arguments put in by the sixth
respondent’s counsel.
It is not necessary to make any
determination about the objection because the post-hearing arguments
advanced on behalf of PPC
have not been persuasive in any event.
Firstly, the requirement that allegations of confidentiality
justifying the extraordinary
measure of directing that the
information in issue be dealt with in litigation other than in the
ordinary way must be sufficiently
substantiated in the supporting
papers to enable a court to properly assess the claim to
confidentiality is well established.
If PPC needed more time to
prepare its founding papers properly, it should have asked for that
timeously. Secondly, although
this matter has raised some
relatively novel issues – more especially concerning the
application of the implied undertaking
rule – the notion that
it is only in exceptional circumstances that a court will depart from
the principle that proceedings
before it should be open to the public
is by no means novel. It is well established that anyone
seeking a departure from
the norm of open proceedings is required to
motivate the request cogently, so that a court considering such a
request can be qualified
to weigh it properly with the countervailing
considerations that must be taken into account in deciding whether to
grant it.
[83]
PPC’s counsel questioned the
relevance to the City’s case of much of the material that PPC
sought to exclude.
He asked why it was necessary to attach the
whole of the BAFO evaluation report when only selected parts of it
appeared to be relied
upon. Irrelevance is not a question that
I have to decide. It is a matter to addressed, if appropriate,
by a striking
out application; not by an application to keep part of
the evidence secret.
[84]
It remains only to say that I have not been
persuaded that PPC is entitled to the relief that it sought.
Orders
to be made
[85]
It follows that the relief for which SANRAL
and PPC applied will not be granted in the terms that they sought.
However, in
the context of 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,
[59]
who have not been favoured yet with unexpurgated copies of the City’s
supplementary founding affidavits.
[86]
On the question of costs, I consider that
this judgment effectively affords all the protagonists a measure of
success. The
application has raised some important issues, the
determination of which will, I think, serve the wider interests of
the proper
administration of justice. In the circumstances it
would be just for there to be no order as to costs, with the result
that
each party will bear its own costs.
[87]
As the argument of these applications took
place
in camera
,
I should perhaps record, lest there be any room for uncertainty, that
this judgment is delivered in open court and is not subject
to any
restriction as to its publication. I am satisfied that nothing
in its content prejudices the interests which the parties
acknowledged by their agreement to request the hearing
in
camera
, or my decision to accede to
it. The papers in the current matter shall, however, 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, save to the extent otherwise
permitted in terms of the order
made on 5 August 2014, at the instance of Right2Know and Section16,
referred to in paragraph [8],
above. This course is indicated
in order to maintain the integrity of the implied undertaking rule,
which I have held to
be applicable in respect of the information that
has been in issue in these applications. It would defeat the
purpose of
the implied undertaking rule if the argument of the
current matter were permitted to provide a platform for a claim that
the material
disclosed by SANRAL had been employed in court in these
interlocutory applications and thus should be generally available.
It is its employment in the principal proceedings that counts.
[88]
The following orders are made:
1.
Save to the extent set out in paragraphs
2-4, below, the applications brought by the South African National
Roads Agency Limited
(‘SANRAL’) and the Protea Parkways
Consortium, pursuant to the order made in chambers by the Deputy
Judge President
on 18 June 2014, are dismissed.
2.
The applicant in the pending judicial
review application in case no. 6165/12 (the City of Cape Town)
shall deliver its supplementary
founding papers in the ordinary
manner in accordance with the rules of court.
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 Section16, 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.
A.G.
BINNS-WARD
Judge of the
High Court
Dates of hearing: 4
and 5 August 2014
Judgment delivered: 28
August 2014
Before: Binns-Ward J
SANRAL’s counsel:
JG Wasserman SC
GJ Nel
SANRAL’s
attorneys: Fasken Martineau, Johannesburg; Broekmanns Attorneys, Cape
Town
PPC’s counsel: HJ
De Waal
PPC’s attorneys:
Webber Wentzel, Cape Town
City of Cape Town’s
counsel: G Budlender SC
N. Bawa
R. Paschke
K. Saller
City of Cape Town’s
attorneys: Cullinan & Associates, Kenilworth, Cape Town
National Ministers of
Transport
And of Water and
Environment
Affairs’ counsel:
JC Heunis SC
E. Van Huyssteen
National Ministers of
Transport
And of Water and
Environment
Affairs’counsel:
State Attorney, Cape Town
Western Cape Provincial
Ministers
Of Transport and of
Finance,
Economic Affairs and
Tourism’s
counsel: A. Bhoopchand
Western Cape Provincial
Ministers
Of Transport and of
Finance,
Economic Affairs and
Tourism’s
attorneys: State Attorney, Cape Town
[1]
Constitution of the Republic of South Africa
1996.
[2]
The national Ministers of Transport and of Water
and Environmental Affairs and the Protea Parkways Consortium.
[3]
Section 16 of the Constitution provides:
Freedom of expression
(1) Everyone has the right to freedom of expression, which
includes-
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to-
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity,
gender or religion, and that constitutes incitement to cause harm.
[4]
Rule 16A(2) of the Uniform Rules of Court provides:
Subject to the provisions of national legislation enacted in
accordance with section 171 of the Constitution of the Republic of
South Africa, 1996 (Act 108 of 1996), and these Rules, any
interested party in a constitutional issue raised in proceedings
before a court may, with the written consent of all the parties to
the proceedings, given not later than 20 days after the filing
of
the affidavit or pleading in which the constitutional issue was
first raised, be admitted therein as amicus curiae upon such
terms
and conditions as may be agreed upon in writing by the parties.
[5]
Rule 16A(4) provides:
The terms and conditions agreed upon in terms of subrule (2)
may be amended by the court.
[6]
PPC is the sixth respondent in the review
application.
[7]
‘
Best and Final Offer’.
[8]
At para 93.
[9]
Para. 5.16.2 and 5.16.3 of the Invitation to
Tender provided as follows:
5.16.2 Changes to the draft Concession Contract…
are discouraged, however, if a Tenderer is able to materially
improve
the terms of their Compliant Tender by changes to draft
Concession Contract, … above or submits a Variant Tender
which
necessitates amendments (if any) to any project document, as
contemplated in paragraph 5.9.2 above, Tenderers are entitled to put
forward such changes by way of comprehensive mark-up to the draft
Concession Contract, … to reflect all the deletions
and
insertions required to support its Tender. SANRAL will not
consider any further matters pertaining to the draft Concession
Contract… which are not clearly marked-up in accordance with
this paragraph 5.16. Documents that have not been marked-up
with tracked changes will be considered by SANRAL to have been
accepted by the Tenderer and no further negotiation in respect
of
these documents will be entertained by SANRAL.
5.16.3 In addition to the
marked changes in the draft Concession Contract, … each
mark-up is to
be motivated by way of a consecutively numbered
footnote to the change.
[10]
It is apparent from the BAFO Evaluation Report,
annexure AE 77 to the City’s supplementary founding affidavit,
that the
preferred and reserve preferred bidders were permitted to
amend the mark-up of the draft concession contract submitted in the
initial phase of the tender process before their respective
selection as preferred bidders. The amendments could be
effected
subsequent to requests made by SANRAL in a so-called
‘Roadmap’ process at the conclusion of the initial
tender phase
in which, it would appear, that the preferred tenderers
were informed of SANRAL’s views on their initial mark-ups.
The BAFO evaluation report indicates that PPC removed the majority
of the initially indicated mark-ups ‘
and
the wording of the documents as drafted by SANRAL was to a large
degree accepted
’ If regard
is had to salient aspects of the preferred bidders’ mark-ups
in their respective best and final
offers, which were summarised in
part 4 of the executive summary to the BAFO evaluation report, it
would appear that the character
of the final mark-ups made by the
two preferred bidders differed markedly one from the other.
This tends to confirm my
impression that there is nothing of a
materially competitive nature involved in the negotiation of the
concession contract.
[11]
See e.g.
Guardian News and Media Ltd, R (on the application of) v
City of Westminster Magistrates' Court
[2012] EWCA Civ 420
,
[2012] 3 All ER 551
(which includes a passing reference to the
Constitutional Court’s judgment in
Independent Newspapers
);
Hogan v Hinch
[2011] HCA 4
and
Sierra
Club of Canada v. Canada (Minister of Finance)
,
2002 SCC 41, [2002] 2 SCR 522, [2002] 2 SCR 522.
[12]
Independent Newspapers
supra, at para 55.
[13]
Ibid para 43.
[14]
Section 32
of the
Superior Courts Act 10 of 2013
provides:
Proceedings to
be carried on in open court
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.
Section 16 of the Supreme Court Act 59 of 1959
(which by virtue of the transitional provisions in s 52 of Act
10 of 2013
is applicable in the current matter) was essentially to
the same effect.
[15]
See
Independent
Newspapers
supra, at para 39-42; see
also
South African Broadcasting Corp
Ltd v National Director of Public Prosecutions and Others
[2006] ZACC 15
;
2007 (1) SA 523
(CC)
(2007 (1) SACR 408
;
2007 (2) BCLR 167
and
S
v Mamabolo
[2001] ZACC 17
;
2001 (3) SA 409
(CC) at
para 29-31. Cf.
Sierra Club of
Canada
supra. The effect of the
broader versus the narrower view of ‘open justice’ is
succinctly stated by Sharon
Rodrick (senior lecturer in law at
Monash University and the co-author of
D
Butler & S Rodrick
Australian Media
Law
(4th ed, 2012)) in her article
Open Justice, the Media and Avenues of
Access to Documents on the Court Record
published in the University of New South Wales Law Journal ([2006]
UNSWLawJl 40; (2006) 29(3) University of New South Wales Law
Journal
90)., as follows:
‘
More
recently, there has been a tendency to regard open justice –
in the form of the media’s right to report on the
courts and
the corresponding right of the public to receive those reports –
as a stand-alone exercise of freedom of expression.
Treating open
justice as an adjunct of free speech has a number of consequences.
First, unlike the traditional approach to open
justice, it does not
demand a link between open justice and the administration of
justice. Rather, it posits that the right to
distribute information
about the courts is an emanation of the right to speak, irrespective
of whether it yields positive benefits
for the administration of
justice. Second, viewing open justice in this manner effects an
alteration in the perceived role of
the media. The media are not a
mere conduit through which the workings of the courts are relayed to
the general public , but
are perceived as exercising their own
independent right of free speech. Whilst Australian judges have
readily embraced the traditional
purposes of open justice, most have
tended to shy away from regarding open justice as an aspect of free
speech
simpliciter
.
For example, the New South Wales Court of Appeal has declared that
the purposes of the principle are tied to the operation of
the legal
system, and “do not extend to encompass issues of freedom of
speech and freedom of the press” [. A wider
perspective on
open justice might attract more support as the pressure continues
for Australia to adopt a Bill of Rights in line
with other liberal
democracies.’ (footnotes excluded)
The article is accessible online at
http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UNSWLawJl/2006/40.html
.
[16]
‘
Documents filed in a court file opened for
a case are legally accessible by the public as soon as the documents
become part of
the record. The question then is when do documents
and records of evidence become part of the record? The answer
is when
the case has been disposed of. While the case remains
pending, the documents and any evidence that is recorded is not yet
part of the record and the public has no right of inspection (Abt…,
to which reference was made in
Visser
…at
page 527). The right of the public to have insight into the
file after the case has been disposed of derives
from the fact that
a court is legally a court of record.’ (my translation)
[17]
The attorney had contended that the papers had been made available
against an undertaking of confidentiality by the reporter,
but the
judge held on the facts that it was most unlikely that an agreement
of the nature contended for by the attorney had been
concluded.
[18]
Janit and Another v Motor Industry Fund
Administrators (Pty) Ltd and Another
[1994] ZASCA 110
;
1995 (4) SA 293
(A), referred to by Wunsh J, also involved a quite
distinguishable set of facts. In that matter a party who had
unlawfully
obtained tape recordings of board meetings had disclosed
them in his discovery affidavit and thereafter threatened to publish
their content to the media. Interdict proceedings followed to
pre-empt the carrying out of the threat. The facts did
not
implicate the ‘implied undertaking rule’ discussed
below.
[19]
Erasmus Superior Court Practice
at B1-405 [Looseleaf Service 37, 2011].
[20]
City of Cape Town v South African National
Roads Agency Ltd and Others
supra, at
para 49.
[21]
The relevant history is sketched in
Hearne v Street
[2008]
HCA 36
at para 105, with reference to
Williams v The Prince of
Wales Life, &c, Co
[1857] EngR 176
(in which the court
required the plaintiff to give an undertaking as a precondition to
its preparedness to make any order in
respect of his claim) and
Reynolds v Godlee
[1858] EngR 233.
[22]
Cf. also
Prudential Assurance Co Ltd v Fountain Page Ltd
[1991]
3 All ER 878
at 885, approved by Straughton LJ in
Mahon v Rahn
[1997] EWCA Civ 1770
;
[1998] QB 424
in the opening passage of his
judgment s.v ‘The rule in civil proceedings’. In
Prudential Assurance
loc cit, Hobhouse J noted ‘[t]
he
expression of the obligation as an implied undertaking given to the
court derives from the historical origin of the principle.
It is now
in reality a legal obligation which arises by operation of law by
virtue of the circumstances under which the relevant
person obtained
the documents or information. However, treating it as having the
character of an implied undertaking continues
to serve a useful
purpose in that it confirms that the obligation is one which is owed
to the court for the benefit of the parties,
not one which is owed
simply to the parties; likewise, it is an obligation which the court
has the right to control and can modify
or release a party from. It
is an obligation which arises from legal process and therefore is
within the control of the court,
gives rise to direct sanctions
which the court may impose (viz contempt of court) and can be
relieved or modified by an
order of the court
’.
[23]
See
Juman v Doucette
2008 SCC 8
,
[2008] 1 SCR 157
;
incorrectly cited in
Replication Technology
Group
as ‘
Juman v
Douc
h
ette
’
.
[24]
In para 22 of the judgment of Toohey J in
Esso Australia
Resources Ltd v Plowman
[1995] HCA 19
,
(1995) 183 CLR 10
(the
Australian authority referred to by Malan J) the observation was
made ‘
In conventional litigation, documents which are
disclosed and produced by one party to another pursuant to the rules
of court
relating to discovery of documents are subject to an
implied undertaking that they will not be used for any purpose other
than
in relation to the litigation itself.
’
[25]
See
Hearne v Street
supra, at para 3 (per Gleeson CJ).
The relevant law in Australia was summed up as follows in the joint
reasons of
Hayne, Heydon and Crennan JJ at para 96 of the
judgment as follows (footnotes excluded): ‘
Where one party
to litigation is compelled, either by reason of a rule of court, or
by reason of a specific order of the court,
or otherwise, to
disclose documents or information, the party obtaining the
disclosure cannot, without the leave of the court,
use it for any
purpose other than that for which it was given unless it is received
into evidence. The types of material disclosed
to which this
principle applies include documents inspected after discovery,
answers to interrogatories, documents produced on
subpoena,
documents produced for the purposes of taxation of costs, documents
produced pursuant to a direction from an arbitrator,
documents
seized pursuant to an Anton Piller order, witness statements served
pursuant to a judicial direction and affidavits
’.
[26]
Incorrectly cited in note 18 to the judgment in
Replication
Technology Group
as (1997) RPC 79.
[27]
The quotations in the passages cited from
Replication
Technology Group
are from Paul
Matthews and Hodge M Malek,
Disclosure
(2007) at 451-4.
[28]
Article 10 of the ECHR provides:
1.
Everyone has the right to freedom of expression. This
right shall
include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority
and
regardless of frontiers. This article shall not prevent States from
requiring the licensing of broadcasting, television or
cinema
enterprises.
2.
The exercise of these freedoms, since it carries with
it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by
law and are necessary
in a democratic society, in the interests of national security,
territorial integrity or public safety,
for the prevention of
disorder or crime, for the protection of health or morals, for the
protection of the reputation or the
rights of others, for preventing
the disclosure of information received in confidence, or for
maintaining the authority and impartiality
of the judiciary.
[29]
Section 2(b) of the Canadian Charter provides ‘
Everyone has
the following fundamental freedoms:..(b) freedom of thought,
belief, opinion and expression, including freedom
of the press and
other media of communication
’.
[30]
Note 23
supra
[31]
The notion that the implied undertaking rule operates independently
of of any obligation existing under the general law relating
to
confidentiality was also stated by Lord Keith of Kinkel in his
speech in
Home Office v Harman
supra, at 541c (All ER).
[32]
Jumain v Doucette
supra, at para 32.
[33]
Section 30(2) provided:
‘
No
person shall, before the trial of any proceedings had in a court of
civil jurisdiction in Alberta or, if there is no trial,
before the
determination of the proceedings within Alberta, print or publish or
cause to be printed or published anything contained
in a statement
of claim, statement of defence or other pleading, examination for
discovery or in an affidavit or other document
other than
(a)
the names and addresses of the parties and their solicitors, and
(b) a
concise statement of the nature of the claim or of the defence, as
the case may be, in general words such as, "the
claim is for
the price of goods sold and delivered", or "the claim is
for damages for personal injuries caused by the
negligent operation
of an automobile", or as the case may be.’
[34]
At note 15.
[35]
At note 119 to her article, Rodrick cites the
following cases as illustrative of the proposition: ‘
Anderson
v Cryovac Inc
,
[1986] USCA1 479
;
805 F
2d 1
, 12–13 (1st Cir, 1986). See also
United
States v El-Sayegh
,
[1997] USCADC 284
;
131 F 3d 158
(DC Cir, 1997) (in which a plea agreement filed to
enable a court to rule on the Government’s motion to seal the
agreement,
which was later withdrawn when the plea agreement fell
through, was held to be not subject to the common law right of
access
as it had played no role in the adjudicatory process)’.
See also
Re Boston Herald
,
[2003] USCA1 54
;
321 F 3d 174
, 180 (1st Cir, 2003).
[36]
Note 21.
[37]
At para 49.
[38]
At para 51.
[39]
At para 52.
[40]
Crown Cork
supra, at 1099A.
[41]
Home Office v Harman
supra, at 534f-h (All ER) (per Lord
Diplock).
[42]
At para 51.
[43]
My underlining.
[44]
The wide import of the concept of reference in
open court in the modern context to include material that the judge
was required
to read for the purpose of preparing for the hearing,
including documents referred to in the heads of argument was
confirmed
in
Smithkline Beecham
Biologicals SA v Connaught Laboratories Inc
[1999]
EWCA Civ 1781
,
[1999] 4 All ER 498
(CA),
and
I can conceive of no good reason for our courts to take a more
restrictive approach. The implied undertaking rule, understood
in the manner explained in
Smithkline
,
does not appear to me to derogate from the principle of open
justice; certainly not insofar as the concept entails the openness
of court proceedings to public scrutiny.
[45]
At para 43.
[46]
See
PFE
International and Others v Industrial Development Corporation of
South Africa Ltd
2013 (1) SA 1
(CC) at
para 4.
[47]
See s 51 of Act 10 of 2013.
[48]
The undertaking was given in response to a
request by SANRAL’s counsel that in the event of my deciding
the secrecy application
adversely to SANRAL I should direct that the
confidentiality undertaking continue to apply until SANRAL had been
afforded an
opportunity to exercise any right it might have to apply
for leave to appeal. My reference to this request should not
be
taken to imply any indication, one way or the other, as to
whether a right of appeal might exist, or, if it does, that an
appeal
would operate to suspend any independently existing relevant
rights or obligations.
[49]
Graeme Hill, ‘
Sub
Judice
in South Africa: Time for a
Change’,
(2001) 17 SAJHR 563
at 573 and 575.
[50]
Para [9], above.
[51]
See para [10], above.
[52]
Section 217(1) of the Constitution provides:
When an organ of state in the national,
provincial or local sphere of government, or any other institution
identified in national
legislation, contracts for goods or services,
it must do so in accordance with a system which is fair, equitable,
transparent,
competitive and cost-effective
.
[53]
The character and object of the f
unding
plans that bidders were required to submit are set forth in part 8
of the Invitation to Tender, dated March 2010.
[54]
Ibid.
Para. 9.3.8.
[55]
Review record pp. 1342-1356, 1522-1651 and
1664-1673.
[56]
Those described in para.s 1.1, 1.2, 1.9, 1.12 and
1.13 of the notice of motion.
[57]
Para 5.5 of the sixth respondent’s note
dated 8 August 2014.
[58]
Ibid. p
ara 5.6.
[59]
The Western Cape provincial ministers of
transport and of finance, economic development and tourism.