By Tony Carnie
First published in the Mercury
The Supreme Court of Appeal in Bloemfontein on Monday ruled in favour of the City of Cape Town by setting aside an order made by the Western Cape High Court on 28 August 2014 concerning the secrecy application of the South African National Roads Agency (Sanral).
The city is now able to fully disclose details of the Sanral tender for the N1 and N2 Toll Highway Project, awarded to the Protea Parkways Consortium – which is expected to bring in revenue over the concession period in the region of R48-billion.
The ruling is a victory for transparency and accountability, said a representative from city management.
The City has already made some information public, including the fact that the proposed toll fee for Western Cape residents is around three times higher than that for Gauteng e-toll roads.
Media editors, corruption watchdogs and other public interest groups have mounted a legal challenge to a high court ruling which they say will throw an automatic “blanket of secrecy” over access to court records.
They argue that a recent ruling by Cape High Court Judge Ashley Binns-Ward threatens the rule of open justice and could cause serious harm to the media, the fight against corruption and the independence of the judiciary.
In legal argument before the Supreme Court of Appeal in Bloemfontein, advocate Wim Trengove SC submitted the Binns-Ward judgment would make it difficult for journalists to report accurately and fairly on court cases and also hinder watchdog groups such as Corruption Watch from bringing to light cases of corruption and other wrongdoing.
The challenge follows attempts by the South African National Roads Agency (Sanral) to seal parts of a court record to prevent information coming to light about proposed toll fees and profit levels of a consortium bidding for the N1/N2 toll road contracts in Cape Town.
The appeal was brought by the Right2Know Campaign, the South African National Editors’ Forum, the Legal Resources Centre, Corruption Watch, the City of Cape Town and other groups.
Judgment undermined long-standing court practices
Even though Judge Binns-Ward made it clear he was not persuaded by Sanral’s arguments in favour of secrecy, he ruled there were documents that should not be made available until the matter came to court – and that anyone who disclosed these documents beforehand could be held in contempt of court.
He ordered the chief registrar to enforce the so-called “implied undertaking” rule prohibiting access or disclosure of documents to parties who did not have a direct legal interest in a matter. This included documents discovered under Rule 53 applications.
Advocate Geoff Budlender SC submitted on behalf of the City of Cape Town that Judge Binns-Ward made orders that would “substantially change the practice of litigation”.
“It imposes secrecy, before a hearing, on discovered documents and (other) records. The Binns-Ward judgment curbed the dissemination of… information and applied to all court documents in all cases, effectively sealing them until a hearing.
It undermined court practices that had been in place for decades and which helped to promote public interest litigation and media reporting on alleged corruption cases.”
Trengove said the ruling would make it difficult for journalists to report fairly and accurately and would indirectly threaten the rights to a public trial in civil and criminal cases. He said the idea South African courts should be open to the public dated from 1813, and that open justice included the right to attend court hearings and the right to inspect court papers and written arguments.
Sanral’s counsel, Johan Wasserman SC, submitted the media and public interest groups were attempting to introduce new evidence in the appeal case and this was inappropriate. He also said various high court registrars and the Department of Justice had not been given an opportunity to give their views on current practice on access to court documents.
Open justice was also subject to limitations, especially when the parties had legitimate interests stemming from the right to confidentiality.
Wasserman suggested Sanral was not the appropriate organ of state to defend the utility of the rules in question and this scrutiny should happen in a properly prepared case on another day. Notwithstanding this Sanral did not believe access to state information should create a rule of “unqualified openness” as it was essential to protect the privacy and confidentiality of people compelled to provide information to the state.
The Supreme Court reserved judgment.