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[2014] ZAWCHC 151
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City of Cape Town v South African National Roads Agency Limited (6165/12) [2014] ZAWCHC 151 (8 October 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No:
6165/12
DATE: 08
OCTOBER 2014
In the application for
leave to appeal
against the judgment of
the court dated
28 August 2014:
THE CITY OF CAPE
TOWN
...................................................................
Applicant
And
SOUTH AFRICAN NATIONAL
ROADS AGENCY LIMITED
..............
Respondent
JUDGMENT IN APPLICATION FOR LEAVE TO APPEAL
DELIVERED: 8 OCTOBER 2014
BINNS-WARD
J:
[1]
The City of Cape Town has applied for leave
to appeal against the judgment of this court delivered on 28 August
2014 in the interlocutory
application brought by SANRAL to keep out
of the public domain certain of the documents in the administrative
record made available
by it in terms of rule 53 for the purpose of
the judicial review application instituted by the City in respect of
the decision
to declare certain parts of the N1 and N2 national roads
as toll roads. The relief sought by SANRAL in the interlocutory
application was described at para 12-16 of the principal judgment.
In summary, SANRAL sought to keep the documentation described
in
schedule NOM 1 to its notice of motion in the interlocutory
application out of the public domain until it had delivered its
answering affidavits in the review application. It sought to
keep the documents listed in schedule NOM 2 permanently out
of the
public domain on the grounds that they were confidential. The
application for the NOM 1 - related relief was found
to be
unnecessary because of the combined effect of the implied undertaking
rule and the provisions of Uniform Rule 62(7).
The application
for the NOM 2 -related relief was dismissed because it was held that
SANRAL had failed to make out a case for it.
[2]
Leave to appeal is sought against those
parts of the judgment that held that the combined effect of rule
62(7) and the implied undertaking
rule rendered the NOM 1-related
part of SANRAL’s application unnecessary because the City was
in any event prohibited, before
the hearing of the review
application, from publishing or disseminating documents it had
obtained from SANRAL in terms of rule
53, unless it obtained leave
from the court to do so, or the disclosing party had consented
thereto. The effect of those
findings found expression in
para 1-4 of the order that was made. The findings also
influenced the decision not to make
any order as to costs because it
was evident from its opposing affidavit in the interlocutory
application that the City had considered
that it was at liberty to
publicly disseminate the documentation SANRAL had disclosed in terms
of rule 53(1)(b), or certainly so
much of it as it had used in its
supplementary founding affidavit, before the hearing of the review
application. The City’s
complaint lies against para 3
of the order and the determination on costs.
[3]
SANRAL was represented at the hearing of
the application for leave to appeal, but, save for submitting that
the effect of para 3
of the order was merely explanatory in
character, they advanced no argument on the merits of the
application. Their presence
was directed at securing the
position in the interim should an appeal follow. In this
regard, SANRAL filed an application
in terms of rule 49(11)
contingently upon leave to appeal being granted. Mr Wasserman
indicated, however, that SANRAL would
oppose any appeal that might
ensue.
[4]
Counsel for the City accepted that the
determination of the application for leave to appeal is regulated by
s 17
of the
Superior Courts Act 10 of 2013
. Mr Budlender
directed my attention to the unreported judgment of this court (per
Greisel J, Samela J concurring)
in South African Land
Arrangements CC and Others v Nedbank Ltd
[2013] ZAWCHC 162
(29
October 2013), which supports the City’s position in this
regard and is binding on me. The decision which the City
wishes
to impugn on appeal was in any event given in the determination of an
application made after the commencement of the Act.
[5]
Section 17(1)
of the
Superior Courts Act
provides
:
Leave to appeal may only be
given where the judge or judges concerned are of the opinion that-
(a) (i) the appeal would
have a reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b) the decision sought on
appeal does not fall within the ambit of
section 16(2)(a)
; and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and
prompt
resolution of the real issues between the parties.
Paragraphs
(a), (b) and (c) of
s 17(1)
operate conjunctively to posit the
requirements that must be satisfied. It is only the requirement
stated in paragraph (a)
that allows for some latitude. It may
be satisfied in either of the ways contemplated in sub-paragraphs (i)
and (ii).
But in all cases satisfaction of the requirements
stated in all three of the paragraphs appears to be required. It is
plain that
the object is to limit the circumstances in which the High
Court as a court of first instance may grant leave to appeal against
any of its decisions.
[6]
I am willing to assume in favour of the
City that the requirements in paragraphs (a) and (b) of
s 17(1)
have been satisfied. I am not, however, able to form the
opinion that I am required to have in terms of
s 17(1)(c)
before
I may grant the application for leave to appeal. The real issue
in the case is the legality of the decision to declare
certain
national roads within the Western Cape province as toll roads.
Any decision on appeal in the interlocutory application
will have no
effect whatsoever on the determination of the real issue in the main
case, and thus would not ‘
lead to a
just and prompt resolution of the real issues between the parties’
.
[7]
It is apparent that the only reason why the
City has applied for leave to appeal against the judgment is because
its effect was
to restrict the extent to which it could publish or
disseminate parts of the administrative record disclosed to it by
SANRAL prior
to the hearing of the judicial review application.
Giving publicity to the documents reluctantly made available to it by
SANRAL in terms of compulsory disclosure processes in terms of the
rules of court is, of course, quite extraneous to the purpose
for
which the disclosure was required in terms of
rule 53(1)(b)
, namely
the facilitation of the preparation of the City’s case in the
pending judicial review application. The application
for leave
to appeal thus falls to be considered astute to the effect of the
determination of the interlocutory application on the
principal
proceedings between the parties. A judgment on appeal against
the determination of the interlocutory application
would undoubtedly
be of general legal interest for many of the reasons identified by
the City’s counsel in their detailed
argument,
[1]
but it will not contribute in any manner whatsoever to the to a just
and prompt resolution of the issues between the parties in
the
review.
[8]
Nothing in the judgment against which the
City wishes to appeal restricted or adversely affects its right, or
indeed that of any
other party to the principal proceedings, to
access to or use of the documentation made available by SANRAL for
the purpose of
the review application. The judgment also does
not have the effect of in any manner restricting the public’s
or the
media’s access to any of the disclosed documentation
that is employed in the review when the main case goes to a hearing.
Furthermore, nothing in the judgment prevents the City (or any other
party), should it consider that exemption from the incidence
of
either
rule 62(7)
or the implied undertaking rule is merited in the
peculiar circumstances of the case, from making application for such
exemption
in order to provide publicity to the information in the
documents before the review application is heard. The judgment,
unoriginally,
acknowledged the availability of such relief as an
incidence of the court’s power to regulate its own process.
There
was, however, no application by the City before court for leave
to use the documents compulsorily made available to it in terms
of
rule 53
for purposes extraneous to the pending review. SANRAL
in any event has no objection to much of the administrative record
being made publically available either now, or, in the case of the
documents listed in schedule NOM 1 to its notice of motion,
as
soon as it has delivered its answering papers.
[9]
It might be inferred from the fact that the
application to restrict dissemination applied only to identified
parts of the administrative
record (those documents listed in
schedules NOM 1 and 2, respectively) that SANRAL had no objection to
the remainder being made
generally available. The application
for leave to appeal suggests that the judgment prohibits publication
of the documents
that SANRAL has no objection to being published.
It does not; see para 55 of the judgment. In answer to my
enquiry
during argument, Mr Budlender advised that the City had not
asked SANRAL whether this was indeed so. Delivery of the
answering
papers is due by 17 October 2014 in terms of the
applicable case management directions, which were made by agreement
between
the parties. Mr Wasserman advised that SANRAL expects
to comply with the timetable. The ‘NOM 1’ related
relief sought by SANRAL would thus, even had it been granted, have
ceased to operate when the answering papers were delivered.
There is no application by SANRAL to cross-appeal against the refusal
of NOM 2-related relief.
[10]
The judgment thus does not have any effect
on the determination or conduct of the main case of the nature that
the interlocutory
judgments did in either of the two judgments on
which Mr Budlender relied in contending for the appealability of
the decision:
Shepstone & Wylie and Others v Geyser NO
1998
(3) SA 1036
(SCA) (at 1042D-E) and Clipsal Australia (Pty) Ltd v GAP
Distributors
2010 (2) SA 289
(SCA). Shepstone &Wylie
concerned the appealability of a judgment in respect of the provision
of security for costs and
Clipsal Australia was about the
appealability of a judgment staying a contempt application, which in
the peculiar circumstances
of the case amounted to the determination
of a special defence raised in the principal case. The
interlocutory order made
in the context of criminal proceedings that
was held to be appealable in
National
Director of Public Prosecutions v King
2010 (2) SACR 146
(SCA),
also referred to by Mr Budlender, was distinguishable for similar
reasons.
In the current case, the
judgment does not prevent the City from publishing the documents when
they are used when the main application
is heard. It also does
not prevent the City from seeking leave from the court to publish
them earlier than that. Neither
the implied undertaking rule,
nor
rule 62(7)
prevents the court from revisiting the question of the
publication of any part of the record in main application before the
hearing
of the review. Thus, quite apart from the effect of
s 17(1)(c)
of the
Superior Courts Act, the
judgment is not
appealable in terms of the test stated in Ecker v Dean 1937 SWA 3 at
4, approved in both Shepstone & Wylie
and Clipsal Australia:
The
usual test, ie whether the order finally disposes of portion of, or a
certain phase of, the issue between the parties does not
really fit
circumstances such as these, for the claim for security was a
separate and ancillary issue between the parties, collateral
to and
not directly affecting the main dispute between the litigants. . . .
(I)t is not a procedural step in attack or defence
at all but a
measure of oblique relief sought by one party against the other on
grounds foreign to the main issue, ie the financial
situation of one
litigant, this relief to be effective if at all only after judgment.
The order determining this collateral dispute
is therefore final and
definitive for at no later stage in the proceedings can the applicant
obtain the substance of what has been
refused to him. If he has been
prejudiced by the order his prejudice is irremediable.
[11]
Mr
Budlender sought to circumvent what I identify be the obstacle to
success in the application for leave to appeal occasioned by
the
requirement in
s 17(1)(c)
by arguing that the ‘real
issues’ referred to in the provision pertain to the issues in
the interlocutory application
and not to the issues in the review.
I do not think that that construction of
s 17(1)(c)
is correct.
In my view, the phrase ‘the real issues between the parties’
pertains to the issues in the main case;
viz the legality of the
decision to declare parts of the N1 and N2 national roads as toll
roads. The provision in
s 17(1)(c)
appears to me to be
intended to articulate, albeit more stringently and absolutely,
[2]
the principle articulated by the Appellate Division in Zweni v
Minister of Law and Order
1993 (1) SA 523
(A) against the
appealability of interlocutory decisions that go to matters that are
only preparatory or procedural in nature relative
to the conduct of
the principal case, and which do not dispose of at least a
substantial portion of the relief claimed in the main
proceedings.
[3]
Having regard to the jurisprudential history reviewed in Zweni and
the ordinary meaning of the words ‘the real issues
between the
parties’ read in the context of the manifestly appeal-limiting
objects of s 17(1), I am of the view that
s 17(1)(c) has
the import that this court may not grant leave to appeal unless the
judge is satisfied that a decision on appeal
would lead to a just and
prompt resolution of the issues between the parties in the main case.
[12]
The City maintains, however, that the
judgment has ‘far-reaching consequences for our civil
procedure, for open justice and
for the constitutional rights which
are implicated’ and contends that these considerations afford
good reason for it to be
reconsidered on appeal. That argument
implies that considerations of the nature contemplated by
s
17(1)(a)(ii)
of the
Superior Courts Act might
allow a judge to grant
leave to appeal even when the requirement of
s 17(1)(c)
is not
met. Whatever the position might have been under the previously
applicable statutory regimes,
[4]
the contention seems to me to be unsustainable on the wording of
s 17(1)
of the currently applicable statute. I think that
in any event there is a measure of overstatement in the City’s
contention
about the effect of the judgment.
[13]
The implicated provisions of civil
procedure are
rule 62(7)
and the implied undertaking rule. The
constitutional rights that are primarily implicated are the right to
privacy and the
right to freedom of expression in the wide sense
provided in terms of s 16 of the Constitution. The import
of ‘open
justice’ was described by the Constitutional
Court 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 (5) SA 31
(CC); 2
008 (8) BCLR 771
(CC) at para 39 –
46.
[14]
Rule 62(7) speaks for itself.
[5]
As pointed out in the judgment, its currency has recently been
confirmed in terms of
s 51
of the
Superior Courts Act. As
also pointed out in the judgment, the rule does not fetter the City’s
access to the court record. Its limiting effect
is on strangers
to the proceedings. The judgment acknowledges that even that
effect may be varied by the court on application
by any party,
including an outsider to the proceedings. There has been no
attack on the constitutionality of the rule.
[15]
As illustrated in the judgment, recognition
of the implied undertaking rule as part of South Africa’s civil
procedural law
is not unprecedented in this country’s
jurisprudence. Its application is also recognised internationally in
democratic countries
with comparable systems of civil procedure,
including some that operate in the context of Bills of Rights with
equivalent provisions
to those in chapter 2 of this country’s
Constitution in respect of privacy and freedom of expression.
My attention
was not drawn to the judgment of any superior court in
this country that suggests that our jurisprudence should strike out
on an
exceptional path away from that which is well established in
comparative jurisdictions.
[16]
In Independent Newspapers, the
Constitutional Court described ‘open justice’ as ‘a
cluster … of related
constitutional rights which include, in
particular, freedom of expression and the right to a public trial,
and which may be termed
the right to open justice. The
constitutional imperative of
dispensing
justice in the open
is captured in
several provisions of the Bill of Rights. First,
section
16(1)(a)
and (b) provides in relevant part that everyone has 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.
Section 34
does not only protect the right of access
to courts but also commands that
courts
deliberate in a public hearing
.
This guarantee of openness in judicial proceedings is again found in
section 35(3)(c)
which entitles every accused person to a
public
trial before an ordinary court
’.
At para 44 the Moseneke DCJ observed ‘the cluster of rights
that enjoins open justice derives from the Bill
of Rights and that
important as these rights are individually and collectively, like all
entrenched rights, they are not absolute.
They may be limited
by a law of general application provided the limitation is reasonable
and justifiable’. (Underlining
provided for emphasis.)
The implied undertaking rule does not impinge on the dispensing of
justice. It ceases to operate
in respect of matter placed
before the court when the case comes to being heard. For that
very reason an attack on the implied
undertaking rule as being
inconsistent with the ‘open court’ principle was rejected
by the Canadian Supreme Court in
Juman v Doucette
[2008] 1 SCR 157
,
2008 SCC 8
, at para 21-22.
[17]
Accepting - as the judgment does - that the
implied undertaking rule forms part of our law, impugning it as
constituting an unreasonable
and unjustifiable limitation of any
constitutional right would entail quite discrete proceedings.
Such proceedings were not
before this court.
[18]
Having regard to the character of the issue
between the parties in the principal case - being the legality of the
declaration of
certain roads as toll roads - and in the absence of
conflicting decisions in the various divisions of the High Court on
the applicable
principles in respect of the determination of the
incidental interlocutory issue, I am therefore in any event not been
persuaded
that there is a ‘compelling reason’ why the
contemplated appeal should be entertained by an appellate court.
If the City has a good reason for wanting to publish or disseminate
any of the documents which it has been given in terms of
rule 53
that
are not covered by SANRAL’s abovementioned partial waiver of
the benefit of the implied undertaking rule before the
review is
heard, there is nothing to stop it applying for leave to do so.
[19]
The effect of the overarching general
considerations that I have discussed thus far constrains me to
dismiss the application. It
is therefore not necessary to deal
individually with the all of the detailed contentions advanced by the
City in the application
for leave to appeal. My failure to do
so does not mean that I have not considered all of them. It is
appropriate, however,
to treat briefly of what seem to be the main
points so that another court might have the benefit of my views on
them should the
application be taken further in a forum which might
take a different view of the effect of
s 17(1)(c)
of the
Superior Courts Act; cf
Dexgroup (Pty) Ltd v Trustco Group
International (Pty) Ltd
2013 (6) SA 520
(SCA), at para 24.
I do this because if it had not been for the effect of
s 17(1
)(c)
I would, on balance, have inclined in favour of granting leave to
appeal because the incidence of the implied undertaking rule
and the
effect of
rule 62(7)
are matters of general importance in the
administration of justice in respect of which certainty is desirable,
and in respect of
which another court might take a different view.
I acknowledge in this regard that the earlier judgments in South
African
jurisprudence which appear to accept the incidence of the
rule were more tentative or circumspect in their treatment of the
applicability
of the implied undertaking rule than the decision in
the current matter has been. I also accept that the application
of the
rule in the context of disclosure in the judicial review
process is unprecedented. While for the reasons mentioned
earlier
I do not consider that there is a compelling reason for the
judgment to be reconsidered, these considerations do nonetheless
point
to the desirability of the achievement of certainty on the
questions. However, as I do not wish by these statements to be
misunderstood to be appearing to endorse the existence of a
reasonable prospect of success in respect of all of the grounds on
which the City seeks to attack the judgment, expatiation on some of
the grounds is probably appropriate, particularly in the context
of
the detailed argument addressed to me.
[20]
The first ground of criticism raised
against the judgment is that the court granted relief that had not
been sought by SANRAL in
respect of a cause of action that had not
been pleaded by SANRAL. It is convenient in this connection to
recall what SANRAL
had asked for and how its interlocutory
application was substantively determined. It sought an order
keeping certain documents
(identified in schedule NOM1 to the notice
of motion) that it had made available to the City in terms of
rule 53
out of the public domain until after it had delivered its answering
papers. It also sought an order to protect further identified
documents (identified in schedule NOM2) from public disclosure
permanently on account of their allegedly confidential character.
Thus no ‘cause of action’, properly so called, was
involved; properly characterised, the relief sought was procedural
-
and entirely incidental to the pending review application. The
judgment held that the application for the first head of
relief was
unnecessary because of the incidence of
rule 62(7)
and the implied
undertaking rule, and that SANRAL had failed to provide a basis in
the evidence for the second head of relief.
[21]
The first ground of criticism is directed
at the declarator in para 3 of the order made. A
declaratory order had not
been sought by SANRAL. (Paragraph 4
of the order added nothing of substance to para 3; it merely
clarified its effect.)
I am not persuaded that there is
anything in the point that justifies an appeal. The declaratory
order did no more than give
effect to the basis upon which it was
held that the first part of SANRAL’s application was
unnecessary. It was merely
expositionary of the basis upon
which the application for the first head of relief was dismissed.
That the declarator was
merely expositionary is evident when it is
considered that even had it not been made, a judgment simply
dismissing the application
for the first head of relief would have
had precisely the same effect because of the ratio decidendi.
The appropriateness
of the declaratory order is indicated in the
context of the implication in the application for leave to appeal
(which echoes the
City’s expressed position in the
interlocutory application) that had SANRAL’s interlocutory
application simply been
dismissed with costs, the City considers that
it would have been at liberty to deal with the documents disclosed by
SANRAL unrestricted
by the effect of
rule 62(7)
or the implied
undertaking rule. In the circumstances I consider it unlikely
that another court might be persuaded on appeal
to hold that the
declarator was a product of the court having strayed outside or
beyond the ambit of the case it was called upon
to decide.
[22]
Inasmuch as the City appears to contend in
the grounds advanced in support of its application for leave to
appeal that the implied
undertaking rule was not something with which
it had been required to engage at the hearing, I do not agree that
this was so.
The fact that the incidence of the rule was not
‘pleaded’ by SANRAL in its supporting affidavit does not
affect its
applicability as a matter of law in the relevant factual
context. The judgments in Home Office v. Harman
[1983] 1 A.C.
280
, Crown Cork & Seal Co Inc and Another v Rheem South Africa
(Pty) Ltd and Others
1980 (3) SA 1093
(W) and 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),
amongst others in point referred to in the principal judgment that
traverse the rule, were debated in argument by both sides
at the
hearing. (The City states in its application for leave to appeal that
its counsel referred to Home Office v Harman ‘insofar
as it
pertained to the applicability of the sub judice rule, but not the
implied undertaking rule’, but the civil contempt
of court that
was the question in issue in Harman arose entirely out of a breach of
the implied undertaking rule as it was then
applied in England.)
It was also argued that SANRAL had relied on the judgment in
Replication Technology only to support
its contention that the City
intended to use the disclosed documents improperly for an ulterior
political purpose, and not to invoke
the implied undertaking rule.
It is indeed so that SANRAL’s counsel used the judgment in
argument for that purpose,
but regulating the use by the recipient of
compulsorily disclosed documents for any purpose extraneous to the
litigation in which
it has been disclosed is one of the central
objects of the implied undertaking rule. SANRAL was therefore
relying on the
authority to contend for the application of the
implied undertaking rule, even if its counsel might not have said so
as clearly
as he could have done. Indeed, the transcript of the
argument at the hearing of the interlocutory application, to parts of
which the City’s written submissions in support of this
application for leave to appeal have directed me, confirms that
SANRAL’s ‘fundamental argument’ was that the public
would not ordinarily have access to the documents in the review
application before the review came to hearing.
[6]
In any event, even had
rule 62(7)
and the implied undertaking rule
not been mentioned in argument at all (which was not the case), that
could not justify their being
overlooked in the judgment if they
constituted applicable law.
[23]
It is suggested that the judgment
misconstrued the reach of the implied undertaking rule and that, if
applicable at all in our law,
the rule applies only to documents
obtained through discovery in terms of
rule 35
, and not to documents
obtained by means of compulsory disclosure from a respondent in terms
of
rule 53(1)(b).
The contention appears to be that there is a
reasonable prospect that another court might find on appeal that this
court
erred in equating the compulsory disclosure of documents by a
respondent in a judicial review application with discovery in an
action. (It was emphasised by Mr Budlender in this connection
that there is no equivalent of our
rule 53
under the Civil Procedure
Rules in England.) The distinction contended for is unlikely to
be found to be important in my
view. The implied undertaking
rule does indeed have its origins in the discovery procedure under
English law, but it is applied
in England (now codified in terms of
the Civil Procedure Rules),
[7]
Canada
[8]
and Australia
[9]
in respect of the compulsory disclosure of documents by a party in
any litigious process, whether in terms of a rule of court or
a court
order. (Disclosure is not automatically part of the English
judicial review procedure. It may, however, be
directed, and,
if it is, the provisions of CPR 31(22), which have codified the
implied undertaking rule, would apply. The
English Civil
Procedure Rules deal with ‘disclosure’ holistically.
Thus, what we call ‘discovery’
is subsumed under the
concept of ‘disclosure’ in the CPR.) The extension
of the original ambit of the rule is
unsurprising because it would
have been arbitrary and irrational to apply the rule only in respect
of compulsory disclosure by
discovery and exclude its application to
other forms of compulsory disclosure in the litigious processes.
[24]
The next salient point raised by the City
is that the implied undertaking rule has no place in proceedings for
the judicial review
of the decisions of organs of state and that this
court therefore erred in holding it to be applicable in the
circumstances.
The basis for the contention was an assertion
that the rationale for the rule is the protection of privacy and that
an organ of
state has no ‘right to privacy that requires
protection in review proceedings’.
[25]
Firstly, the City’s contention states
the rationale for the rule in its modern conception too narrowly;
contrast, for example,
the discussion of the rationale for the rule
by Lord Hoffmann in
Taylor and others v Serious Fraud Office
[1998] UKHL 39
;
[1998] 4 All ER 801
(HL) at 807-812 and by the Canadian Supreme Court
in
Juman v Doucette supra, at para 23-27, in
which other considerations well served by the rule are mentioned.
Secondly,
organs of state have manifold incarnations. SANRAL,
for instance, is a public company. It has a separate legal
personality
like any company. It is recognised that a company
has a right to privacy; cf. e.g. Investigating Directorate: Serious
Economic
Offences and Others v Hyundai Motor Distributors (Pty) Ltd
and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC),
2000 (10) BCLR 1079
at para
17-18. The minutes of SANRAL’s board meetings, for
example, would be private, as would internal memoranda.
The
fact that it is an organ of state does not affect this; cf.
s 44
of the
Promotion of Access to Information Act 2 of 2000
. Access
to information held by a public body is regulated in terms of Act 2
of 2000, or insofar as currently relevant - by
reason of
s 7
of
the Act - in terms of the court’s procedures. The latter
consideration illustrates one of the roles for the implied
undertaking rule emphasised by Lord Hoffmann in Taylor supra, viz. it
affords a means for the court to control its process and
prevent
abuses.
[10]
SANRAL’s character as a juristic person and an organ of state
may well mean that a court would be more readily amenable
to granting
an application for exemption from the undertaking rule in respect of
documents compulsorily disclosed by it in litigious
proceedings than
it would be in the case of private person. It would be a
weighty consideration particularly when the litigation
concerned a
matter of public interest; cf. the observations - admittedly made in
the context of SANRAL’s claim to keep documents
out of the
public domain on the grounds of their allegedly confidential
character, but no less pertinent on that account for the
purpose of
the argument currently under consideration - at para 78 of the
principal judgment. I accept, however, that
another court might
be persuaded that the values of openness and accountability might
trump the appropriateness of affording the
protections of the implied
undertaking rule to public body respondents in judicial review
proceedings.
[26]
The City supplemented its application for
leave to appeal in order to introduce, as an additional ground, the
contention that by
holding that the implied undertaking rule was
applicable law the decision resulted in the ‘impermissible
extension of the
offence of contempt of court’. I do not
think that is so. Breach of the rule would give rise to a civil
contempt.
It is not to be equated to disregarding a court
order, which it is established constitutes a criminal offence; S v
Beyers
1968 (3) SA 70
(A). The fact that no person could be
committed to prison for such contempt unless their breach of the rule
could be proved
beyond reasonable doubt to have been wilful and mala
fide does not make the respondent in any such proceedings an ‘accused
person’; cf. Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at para 42.
[27]
Some of the subsidiary grounds advanced in
support of the application for leave to appeal suggest a
misunderstanding in certain
respects of both the operation of the
implied undertaking rule and of the content of the judgment.
Thus, the contention that
this court ‘erred in invoking the
implied undertaking rule to protect “information or material
susceptible to privacy
protection”…where no case had
been made that there was any information that required such
protection as contemplated
in the Bill of Rights’ proceeds on
the fundamentally flawed premise that a case for privacy has to be
made out before the
rule operates. The trigger for the
operation of the rule is the compulsory disclosure of documents or
information in terms
of the applicable court process; nothing more.
So too, no ‘finding’ of the nature described in para 9.4
of the application for leave to appeal was made in the judgment.
The remarks mentioned at para 9.4 were uttered at para 55
of the judgment. They were obiter. They ventured the
opinion that a court might be inclined in public interest cases
to
allow access to the content of the court file when pleadings had
closed and a hearing date had been applied for, or fixed.
[28]
The application for leave to appeal is
dismissed. As SANRAL, in effect, abided the judgment of the
court, there will no order
as to costs.
A.G. BINNS-WARD
Judge of the High Court
[1]
The oral argument was supported by
53 pages of written submissions.
[2]
In this regard I am mindful of the
qualifying remarks about the judgment in
Zweni
v Minister of Law and Order
made in
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996
(3) SA 1
(A) at 10F and in
National
Director of Public Prosecutions v King
2010
(2) SACR 146
(SCA) at para 51.
[3]
Cf. also
Beinash
v Wixley
[1997] ZASCA 32
;
1997 (3)
SA 721
(SCA) at 729H-730E.
[4]
Compare, in this regard, the judgments cited in note 2,
above.
[5]
Rule 62(7) 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
’.
[6]
Transcript p. 44(4 -15). That
‘fundamental’ argument had been advanced by SANRAL with
reference to the judgments
in
Crown
Cork,
Halcon
International Inc v The Shell Transport and Trading Co and Others
1979 RPC 97
and
Replication
Technology Group
,
amongst others.
[7]
See, for example, the observation by Lord Hoffmann in
Taylor and others v Serious Fraud Office
[1998] UKHL 39
;
[1998] 4 All ER 801
(HL) at 807: ‘
The
implied undertaking in civil proceedings is designed to limit the
invasion of privacy and confidentiality caused by compulsory
disclosure of documents in litigation. It is generated by the
circumstances in which the documents have been disclosed,
irrespective
of their contents. It excludes all collateral use,
whether in other litigation or by way of publication to others
’.
The question in
Taylor
was
whether the public interest in the administration of justice
requires the application of an analogous principle to documents
disclosed by the prosecution to the defence in criminal
proceedings. It was held that it did.
[8]
In
Juman v Doucette
[2008] 1 SCR 157
,
2008 SCC 8
the root of the rule was found to lie
in affording a measure of protection to litigants bound by statutory
compulsion to make
disclosure of their documents or information.
It was observed (at para 20) that it has been applied to public
enquiries.
[9]
Hearne v Street
[2008] HCA
36
at para 96.
[10]
See the learned judge’s endorsement (at p. 812)
of the function of the rule identified by Brooke J in the
unreported
judgment of first instance in
Mahon
v Rahn
(19 June 1996), described by
Hoffmann LJ at the top of p. 810 of the judgment in
Taylor
.