Dear Corruption Watch,
I live in Cape Town, and I'm concerned about the new toll roads that Sanral wants to establish here. I heard that the matter is in court, but also heard that the court documents are secret. How can that be?
Confused and Concerned
You're right to ask about this issue. It's complicated and technical, but also a serious threat to democracy and a trustworthy, independent judiciary. Let's start with a quick summary of the case, then explain which documents you can see, and which you can't see.
The South African National Roads Agency (Sanral) decided to establish new toll roads in the Western Cape and to award the tender to build and operate those roads. The City of Cape Town said those decisions were unlawful. As part of the ensuing court process, Sanral had to disclose what is called a "Rule 53 record", or all the documentation it relied on when it established the toll roads and awarded the tenders.
Sanral argued that some of the documents in that record were confidential, and that it should only provide them to the court, the city and the other parties to the case. The city argued that none of the documents in the record were confidential. Sanral asked the court to declare that the documents could be kept from the public.
Then things started to get weird. The application to keep Sanral's documents confidential was heard entirely in camera. The attempt to keep documents secret was decided in secret.
Then things really went south. Sanral had always argued that the documents were confidential because they revealed commercial information. The judge rejected that argument, but still decided none of the documents could be released, for two reasons:
First, there is a rule of court that says that the registrar of the High Court – basically the chief administrator – may only provide copies of court documents to those with a "personal interest" in the matter. That rule had, until this decision, been honoured only in the breach; registrars routinely made court documents available to whoever asked.
Judge Ashley Binns-Ward decided to end that practice so that – until the matter is heard in open court – the registrar cannot give court documents to the public unless they are a party to the case, or a judge decides otherwise.
Second, the judge relied on something called the "implied undertaking rule", which says that, when a party is forced to disclose documents in court, the other parties may not use those documents for any purpose other than the court case. He held that this prevented the city – or anybody else – from disclosing the contents of the Rule 53 record. Nobody had understood this to be the rule, and parties would routinely provide the record to journalists or other interested people.
These two findings have serious consequences. They prevent journalists from properly reporting on court cases, and potentially interested parties from intervening in important cases, and they limit the disclosure of information that may demonstrate corruption or maladministration.
Most importantly, they undermine trust in the judiciary – if courts do not operate transparently, people will not believe they are making fair decisions. The City of Cape Town has appealed against the decision, and it is to be hoped that a higher court will come to a different conclusion.
• This article was first published in Sunday Times: Business Times