THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 20786/2014
Reportable
In the matter between:

CITY OF CAPE TOWN
APPELLANT

and

SOUTH AFRICAN NATIONAL ROADS AUTHORITY LIMITED
FIRST RESPONDENT

PROTEA PARKWAYS CONSORTIUM
SECOND RESPONDENT

N1/N2 OVERBERG CONSORTIUM
THIRD RESPONDENT

GTIMV CONSORTIUM
FOURTH RESPONDENT

MINISTER OF TRANSPORT
FIFTH RESPONDENT

MINISTER OF WATER AND ENVIRONMENTAL AFFAIRS
SIXTH RESPONDENT

MINISTER OF TRANSPORT AND PUBLIC WORKS,
WESTERN CAPE PROVINCE
SEVENTH RESPONDENT

MINISTER OF FINANCE, ECONOMIC
DEVELOPMENT AND TOURISM, WESTERN
CAPE PROVINCE
EIGHTH RESPONDENT

N2/T2 CRISIS COMMITTEE
NINTH RESPONDENT

THEEWATERSKLOOF MUNICIPALITY
TENTH RESPONDENT

BREEDE VALLEY LOCAL MUNICIPALITY
ELEVENTH RESPONDENT

Neutral citation:
City of Cape Town v South African National Roads Authority
Limited & others (20786/14) [2015] ZASCA 58 (30 March 2015)

Bench:
Ponnan, Saldulker and Zondi JJA and Van Der Merwe and Gorven
AJJA

Heard:

18 March 2015

Delivered:

30 March 2015

Summary: Open justice – court records by default should be open to the public – any
departure an exception and should be justified – high court‟s adoption of implied
undertaking rule and interpretation of rule 62(7) of the Uniform rules - inconsistent with
that constitutional principle.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Western Cape Division, Cape Town (Binns-Ward J, sitting as court of
first instance): judgment reported sub nom South African National Road Agency Limited
v City of Cape Town & others; In Re: Protea Parkway Consortium v City of Cape Town
& others [2014] 4 All SA 497 (WCC).

1.
The appeal is upheld with costs including the costs of three counsel.

2.
The order of the court below is set aside and replaced with the following:
„The application is dismissed with costs including the costs of three counsel.‟

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Ponnan JA (Saldulker and Zondi JJA and Van Der Merwe and Gorven AJJA
concurring):

[1] This appeal raises matters of the greatest public importance to the people of
Cape Town and the region, involving as it does the construction and tolling of principal
motorways in a project to be undertaken by an organ of State. And so one might say,
with apologies to John Donne of course, perchance he for whom the toll tolls may be so
ill as not to know that it tolls for open justice.

[2] The respondent, the South African National Roads Authority Limited (SANRAL),
an organ of State as defined in s 239 of the Constitution, is responsible for the strategic
planning, design, construction, management, control, maintenance and rehabilitation of
our national roads. Pursuant to a tender and evaluation process SANRAL selected
Protea Parkways Consortium (PPC) as the preferred bidder and Overberg Consortium
as the reserve bidder in respect of what is described as the N1/N2 Winelands Paarl
Highway Toll Project. The appellant, the City of Cape Town (the City), launched a
review application in the Western Cape High Court, Cape Town in terms of rule 53 of
the Uniform rules of court seeking, inter alia, to review SANRAL‟s decision to award the
tender to PPC.1 SANRAL furnished the City with the administrative record in terms of
rule 53(1)(b) in two parts, marked respectively as, the „non-confidential record‟ and „the
confidential record‟. That generated a dispute between the parties as to precisely what
constituted the rule 53 record. An exchange of correspondence followed, which

1 In addition to SANRAL, which was cited as the First Respondent, Protea Parkways Consortium, N1/N2
Overberg Consortium, GTIMV Consortium, Minister of Transport, Minister of Water and Environmental
Affairs, Minister of Transport and Public Works, Western Cape Province, Minister of Finance, Economic
Development and Tourism, Western Cape Province, N2/T2 Crisis Committee, Theewaterskloof
Municipality and Breede Valley Municipality were cited as the Second to Eleventh Respondents
respectively. But as none of them participated in the appeal, nothing further needs be said about them.

culminated in a letter dated 25 October 2013 written by the City‟s attorney to SANRAL‟s
attorney recording:
„3.
The terms to which the parties have already agreed are in a series of letters. For
convenience, and to avoid any future dispute as to what was agreed, in what follows we collate
the agreed terms, along with the City‟s position on the two issues discussed in the previous
paragraph.
3.1
SANRAL will provide the City‟s legal representatives with copies of the documents
forming part of the Rule 53 record which SANRAL considers to be relevant but claims to be
confidential, and such representatives will sign the attached confidentiality undertaking, which
prevents them from using or disclosing such documents except for purposes of the litigation,
and then only either in a manner agreed between the parties, or in accordance with any
directions by a judge or a court.
3.2
If in their opinion it is necessary, the City‟s legal representatives may disclose such
documents to the City‟s officials and experts, subject to their also signing the confidentiality
undertaking.
3.3
The City may place any document or information which SANRAL or the Consortium
claim to be confidential before the court hearing the review application, either publicly or in
closed affidavits, arguments and hearings. If the parties cannot agree whether a particular
document should be dealt with publically or on a closed basis, the parties will ask a judge or the
court to decide that question at a preliminary hearing. Any such preliminary hearing will be
closed, and the parties and the judge or court will be able to have sight of and refer to copies of
the contested documents. The parties will endeavour to agree suitable dates and arrangements
for any such hearing.
3.4
SANRAL will provide the City with a list of documents and information, including the bids
by persons other than the Consortium, which SANRAL proposes to exclude from the record on
the basis of irrelevance, so that the City can decide whether it wishes to see them. SANRAL will
provide copies of any such documents or information if the City requests them, provided that
any document or information which is also claimed to be confidential will be subject to the
confidentiality undertaking.
3.5
The City records that at this stage it does not concede the validity of any claim to
irrelevance or confidentiality. In the event of a dispute, the City contends that the onus rests on
SANRAL and/or the Consortium to prove that a document is confidential and/or may not be
produced in open court. SANRAL does not concede this and contends that the issue of onus
can be determined should a dispute arise.‟

[3] In accordance with that agreement, each of the City‟s representatives furnished
the envisaged confidentiality undertaking to SANRAL. And prior to serving and filing its
supplementary founding affidavit (the SFA), the City supplied SANRAL with a copy
thereof. The SFA made reference to both the „non-confidential‟ and „confidential‟
records provided by SANRAL on the basis, so the City contended, that the information
was not confidential and should immediately be made known to the public in the public
interest. SANRAL then made application to the high court, seeking orders that parts of
the SFA be redacted prior to it being formally served and filed. SANRAL sought an
order in the following terms:
„1.
The Confidentiality Undertakings signed by the parties to the Review Application, and
their legal representatives remain in force and binding, subject to any variations necessitated by
the order granted below;
2.
The Supplementary Founding Affidavit, including the annexures and annexed affidavits
(“the Supplementary Affidavit”) is to be redacted in accordance with the first and second
schedules, copies of which are attached hereto marked “NOM1” and “NOM2” respectively;
3.
The redacted Supplementary Affidavit may then be served and filed;
4.
After the service and filing of the Applicant‟s (First Respondent in the main application)
Answering Affidavit, the Supplementary Affidavit may be further amended, so as to exclude the
redaction set out in the first schedule (NOM1);
5.
The amended Supplementary Affidavit, subject to the retention of the redactions as set
out in “NOM2” which will remain effective, may then be served and filed;
6.
The full Supplementary Affidavit, without any redactions, may only be provided to the
Judge hearing the review application;
7.
Insofar as the Heads of Argument may refer to the contents of the un-redacted portions
of the Supplementary Affidavit, such Heads of Argument may only be provided to the Judge
hearing the review application;
8.
The review application is to be heard in camera, as and when any of the aspects and/or
information as set out in “NOM2” is raised and dealt with;
9.
The First Respondent is to pay the costs of the application.‟

[4] In support of the application, Mr Nazir Alli, SANRAL‟s Chief Executive Officer,
stated:

„71.
SANRAL objects to the service and the filing of the Supplementary Affidavit, and the
annexures thereto, in its current format, and has identified two separate categories of
documents, which are explained below.
72.
The first category relates to information and documentation that needs to be kept
confidential until after the filing of SANRAL‟s answering affidavit in the Review Application. Such
information and documentation has been identified and described in the schedule attached to
the Notice of Motion as annexure “NOM1” (“the First Schedule”). The first category of
documentation and information must be kept confidential, as the failure to do so will simply
cause unjustified and unnecessary concern among the general public, and will result in
unjustified antagonism and bias towards SANRAL by the general public.
73.
The second category relates to information and documentation that must be kept
confidential at all times during the legal proceedings, and thereafter. Such information and
documentation has been identified and described in the schedule attached to the Notice of
Motion as annexure “NOM2” (“the Second Schedule”). The second category of documentation
and information ought to be kept confidential, as the failure to do so will not only cause harm
and damage to SANRAL, but also to the bidders in the tender process, the South African fiscus
and economy and the general public. In addition, the disclosure of such information and
documentation will fall foul of SANRAL‟s statutory obligations.‟
Mr Alli added:
„74.
As appears from the City‟s correspondence and the City‟s submission, it is clear that the
City‟s aim in filing the Supplementary Affidavit is to enable the Press to report on the contents of
the Supplementary Affidavit and the annexures thereto.
75.
The City has attached Affidavits of “Experts” to the Supplementary Affidavit and in the
Supplementary Affidavit the City refers to certain costing implications of the Project and
ultimately SANRAL is criticized on a socio-economic basis.
76.
I do not intend to reply in this Affidavit, to the contents of the Supplementary Affidavit, as
this will be done, in detail, in the Answering Affidavit currently being prepared. I do however
intend to deal, in very general terms, with certain “observations” made by the City‟s “Experts”–
76.1
The “Expert” reports filed in support of the Supplementary Affidavit also raise the same
criticisms, as are raised in the Supplementary Affidavit, and provide commentary on the
commercial and economic viability of the entire Project.
76.2
The “Experts” utilized by the City suggest that the Project would ultimately result in a
negative benefits-to-cost ratio.

76.3
Naturally such conclusions and statements relating to the cost of the project, and
ultimately the effect thereof on the potential road users, may result in unjustified alarm being
created amongst the general public.
76.4
The “Experts‟ are “predicting” the economic and financial viability of the Project, by
incorrectly calculating the cost benefit ratio.
77.
In a nutshell, the conclusions and calculations put forward by the City‟s “Experts” are
simply wrong, and would create a false impression amongst the general public.
78.
I attach hereto some recent examples of press reports relating to the Project, which
clearly evidence the intention of the City to disclose information to the public by way of the
media, marked “H1” to “H7” respectively.
79.
In the circumstances, and in order to avoid unjustified alarm the portions of the
Supplementary Affidavit and the supporting documentation, as described in the First Schedule
should not be released until after SANRAL has had an opportunity of filing its Answering
Affidavit and its own expert reports, which will deal with and refute the allegations made.
80.
The Answering Affidavit will provide a proper response to the costing predictions set out
in the Supplementary Affidavit, and will provide appropriate answers to the fears expressed by
the City‟s “Experts”. It would certainly be to the benefit of the general public to have “both sides
of the story”, before drawing any conclusions.
81.
SANRAL will accordingly contend for a procedural directive, compelling the City and
other Respondents to comply with the confidentiality undertaking in regard to this category
pending the filing of SANRAL‟s Answering Affidavit in the Review Application.
82.
It is clear from the correspondence referred to above that the City seeks to file highly
confidential and sensitive information in respect of the tender received with an outstanding
tender process still to be conducted in respect of the financing of the Project (which process has
not been finally concluded) as a public record. This will allow access to and unfair advantage to
the other bidders, potential competitors, financial institutions, and the public at large to such
documentation.
83.
This will make a complete mockery of a competitive process required for the
procurement of goods and services in a transparent and fair manner.
84.
SANRAL‟s evaluation of the tenders is sensitive not only for the reason of the
confidential information discussed in relation to the tenderers, but also as SANRAL will be
placed at a massive disadvantage in its negotiations with the Preferred Bidder or if necessary
the Reserve Bidder and the financiers concerned if the documentation became public. The
release of the documentation and information into the public records may frustrate the
successful conclusion of the negotiations with PPC. It is important that confidentiality is

observed by all the parties, especially since negotiations are still to be finalized. Such
confidentiality is important not only to protect the integrity of SANRAL‟s evaluation and
negotiation strategy, but also to protect commercially sensitive or any proprietary trade
information that the bidders might have included in their proposals and which they would not
wish to be made known to their competitors.
85.
The second category of documents encapsulate the following sub-categories of
documents which require protection –
85.1
Bidders‟ commercial information;
85.2
Debt funding competition;
85.3
SANRAL‟s Bid Evaluation.‟

[5] The response to those allegations by the City Manager, Mr Achmat Ebrahim, on
behalf of the City, was:
„8.
In essence, the issue for determination in both secrecy applications is whether SANRAL
and PPC have made a case for secrecy. SANRAL and PPC seek orders which courts such as
ours, which are committed to open justice and the upholding and protection of constitutional
principles and rights – such as accountability, transparency, freedom of speech, and press
freedom – grant exceptionally rarely. The City contends that neither application makes out a
case for secrecy.
. . .
84.
Having considered the information listed in NOM1 and NOM2 on the basis of the case
presented by SANRAL, the City is of the view that disclosure of that information will probably not
cause any of the harm which SANRAL alleges.
85.
That being so, SANRAL has failed to provide sufficient evidence to make a case that
disclosure of the information listed in NOM1 and NOM2 will probably cause harm. Even if
SANRAL had pleaded a cause of action (which is not the case), I respectfully submit that this
Court is consequently unable to grant the secrecy orders on the grounds of alleged harm.
. . .
114.
SANRAL does not even suggest any legal basis or any cause of action for its
“procedural directive” imposing secrecy in respect of the first category of information. I am
advised that there is none.
. . .
153.
Even if this court finds that the disclosure of specified information would cause the harm
alleged (which the City does not accept), that does not mean that SANRAL is entitled to the
relief sought. I am advised that SANRAL must establish a cause of action for the extraordinary

secrecy orders which it seeks. Harm in itself is insufficient. SANRAL has not pleaded any cause
of action for the secrecy orders founded on the alleged harm.‟

[6] Accordingly, what called for determination on the papers as they stood was
whether: (a) the information in NOM1 and NOM2 was confidential; (b) its disclosure
would cause the harm to SANRAL, as asserted by it; and (c)  such
harm
provided
a
basis for secrecy. The high court (Binns-Ward J) decided all of those issues in the City‟s
favour. It did so principally on the basis that SANRAL had failed to make out a case for
the relief sought. It held:
„59. . . . SANRAL would have to establish confidentiality in the true sense or such similar basis
for exclusivity, or show that its wider availability would be prejudicial to the fair and just
determination of the case. SANRAL has not sought to show any of these things in respect of the
material identified in schedule NOM1. Its object in respect of the NOM1 material is merely to
avoid premature publicity to evidence obtained by the City through Rule 53(1)(b).
67.
. . . Indeed, the impression is given that the deponent to the supporting affidavit made
his statement before the content of schedules NOM 1 and 2 to the notice of motion were settled.
In my view, it is not for the court, in the absence of sufficient indication in the body of the
supporting affidavit of a particularised link between the items listed in schedule NOM 2 and the
prejudice contended for, to have to search in the voluminous bid documentation to see if a case
could be made for SANRAL‟s position; cf. Crown Cork supra, at 1101F. Nor is it for a
respondent in such a situation to have to fathom the particularity of the case it is expected to
meet.
68.
SANRAL‟s founding papers failed to link the apprehended harm – described by the
deponent in the broadest terms – with particularised aspects of the documents concerned.
There is no excuse for this, especially considering that the parties had agreed that the court
would be requested to hear the interlocutory applications in camera.‟

[7] Having found that SANRAL had failed to make out a case in respect of each of
categories NOM1 and NOM2, the high court in paragraph 1 of its order dismissed
SANRAL‟s application. That, one would have thought, would have been the end of the
matter. It was not, because the high court then saw fit to issue the following orders:
„3.
It is declared that the administrative record disclosed by SANRAL in terms of rule
53(1)(b) of the Uniform Rules of Court is subject to the “implied undertaking rule” explained in
the body of this judgment, with the effect that no person, including any recipient of the

supplementary founding papers delivered in terms of paragraph 2 hereof, shall be permitted,
unless authorised thereto by SANRAL or by the Court, on application, to disseminate, publish,
or distribute any part of the administrative record, or any part of any affidavit in the
supplementary founding papers that quotes or substantively reproduces the content thereof,
before the hearing of the aforementioned pending review application.
4.
Paragraph 3 of this order shall not be construed to derogate from the right of any party in
the review application to refer to, or in any other manner deal with, the administrative record in
any affidavit to be delivered by it in the review application, provided that the dissemination,
publication, or distribution of the affected parts of any such affidavit shall likewise be limited by
the implied undertaking rule.
5.
The papers in the current interlocutory applications, save to the extent that their partial
release into the public domain was authorised in terms of the order obtained on 5 August 2014
at the instance of Right2Know and Section 16, shall remain under seal, subordinate to the
degree of access permitted to the papers in the review application, between now and the
hearing of the review.
6. There shall be no order as to costs in either application.‟
The high court, although thereafter recognising „that the application of the rule in the
context of disclosure in the judicial review process is unprecedented‟, somewhat
surprisingly dismissed the City‟s application for leave to appeal to this court. The City
appeals with the leave of this court. There is no cross appeal by SANRAL. With the
leave of the President of this Court, a range of public interest organisations – eleven in
all, were admitted as amici curiae.2

[8] The high court issued the additional orders because of what it described as:
„an evident misapprehension by the parties as to the extent to which the material that has been
made available by SANRAL in terms of Rule 53(1)(b) may be disseminated before the review
application is heard, I consider it appropriate to make an order with declaratory effect. The order
that I propose to make will also address the concerns of those respondents, such as the fourth
and fifth respondents in the review, who have not been favoured yet with unexpurgated copies
of the City‟s supplementary founding affidavits.‟

2 The Amici include media organisations, public interest law firms, research and advocacy institutions,
non-profit organisations that fight corruption and institutions established to promote free expression and
access to information.  They are: Right2Know Campaign, Section16, Open Democracy Advice Centre,
Mandg Centre for Investigative Journalism, South African National Editors Forum, Legal Resources
Centre, Section27, Socio-Economic Rights Institute of South Africa, Corruption Watch, Democratic
Governance and Rights Institute, South African History Archive.

Paragraph 3 of the high court‟s order and the ancillary orders in paragraphs 4 and 5
stem directly from the high court‟s adoption of the implied undertaking rule (the rule). On
that score the high court stated:
„57.
I am thus of the view that if there be any doubt that the judgment in Crown Cork has not
already done so, the time has come to hold unequivocally  that the implied undertaking rule
does form part of our law and that it is of application in respect of material disclosed by a
respondent in review proceedings in terms of rule 53(1)(b), save to the extent that any part of
the record on review was not already a matter of public record before its disclosure in the
litigation. For the reasons discussed above, the rule serves an important purpose; not only in
upholding the constitutional right to privacy, but, equally importantly, in promoting the effective
administration of justice. Its application is susceptible to adjustment to meet the effective
administration of justice. Its application is susceptible to adjustment to meet the exigencies of
any case that might afford sufficient reason to depart from its ordinary incidence. There is no
sound reason, in my view, to call its constitutional compatibility into question.‟

[9] The rule had not been raised by SANRAL in its affidavit. The City had thus not
been called upon to answer that case. The high court prohibited the publication of all
information from the rule 53 record, including „the non-confidential record‟ until the
review application is called, whereas SANRAL‟s case was that: all such information,
apart from NOM1 and NOM2, could be made public immediately; and the information in
NOM1 must be kept secret only until SANRAL filed its answering papers, not until the
hearing. The high court further held that documents filed with the registrar are, in any
event, regulated by rule 62(7) of the Uniform rules of court (the subrule). According to
the high court, that subrule regulates access to such information and „provides an
important administrative basis to support the implied undertaking rule‟. The subrule, so
held the high court, „permits the registrar to give only any party to the cause and any
person having a personal interest therein . . . access to the documents in the court file‟.
The high court took the view that „public access to the content of the court file in litigious
proceedings is permissible only after the matter has been called in open court‟.

[10] In respect of both issues the high court appears to have impermissibly ranged
beyond that which it had been asked to adjudicate.  For, when one compares
SANRAL‟s notice of motion to the order that ultimately issued, it is clear that: (a)

SANRAL did not secure the relief that it had sought; and (b) conversely, the relief that
issued was not sought by it. In that regard the following from Fischer v Ramahlele 2014
(4) SA 614 (SCA) paras 13 and 14 is apposite:
„Turning then to the nature of civil litigation in our adversarial system, it is for the parties, either
in the pleadings or affidavits (which serve the function of both pleadings and evidence), to set
out and define the nature of their dispute, and it is for the court to adjudicate upon those issues.
That is so even where the dispute involves an issue pertaining to the basic human rights
guaranteed by our Constitution, for “(i)t is impermissible for a party to rely on a constitutional
complaint that was not pleaded”. There are cases where the parties may expand those issues
by the way in which they conduct the proceedings. There may also be instances where the court
may mero motu raise a question of law that emerges fully from the evidence and is necessary
for the decision of the case. That is subject to the proviso that no prejudice will be caused to any
party by its being decided. Beyond that it is for the parties to identify the dispute and for the
court to determine that dispute and that dispute alone.
It is not for the court to raise new issues not traversed in the pleadings or affidavits, however
interesting or important they may seem to it, and to insist that the parties deal with them. The
parties may have their own reasons for not raising those issues. A court may sometimes
suggest a line of argument or an approach to a case that has not previously occurred to the
parties. However, it is then for the parties to determine whether they wish to adopt the new
point. They may choose not to do so because of its implications for the further conduct of the
proceedings, such as an adjournment or the need to amend pleadings or call additional
evidence. They may feel that their case is sufficiently strong as it stands to require no
supplementation. They may simply wish the issues already identified to be determined because
they are relevant to future matters and the relationship between the parties. That is for them to
decide and not the court. If they wish to stand by the issues they have formulated, the court may
not raise new ones or compel them to deal with matters other than those they have formulated
in the pleadings or affidavits.‟3
So too, is the statement by Howie JA in Western Cape Education Department & another
v George 1998 (3) SA 77 (SCA) at 84E that it is desirable:
„. . . that any judgment . . . be the product of thorough consideration of, inter alia, forensically
tested argument from both sides on questions that are necessary for the decision of the case.‟

3 See also in this regard Baront Investments (Pty) Ltd v West Dune Properties 296 (Pty) Ltd & others
2014 (6) SA 286 (KZP) paras 80-82, 92 and 98.

[11] It nonetheless, remains, because the issues are not, primarily, about factual
disputes between the parties, but rather matters of law that will affect many litigants
beyond the confines of this case, to consider the correctness of the high court‟s
judgment. But, before turning to a consideration of the rule and subrule it would be
appropriate to first touch on some key principles that inform that discussion.

[12] „The open court principle is a venerable principle, deeply rooted in western
consciousness. And for good reason.‟ – so declared the Chief Justice of Canada, the Rt
Hon Beverley McLachlin PC, in an address to the Middle Temple during January 2014
entitled: „Is the open court principle sustainable in the 21st century‟.4 The Learned Chief
Justice began by saying that the „open court principle was rightly venerated as a key
component of the rule of law‟. She elaborated - the open court principle meant in
practice that: (a) court proceedings including the evidence and documents disclosed in
proceedings should be open to public scrutiny; and (b) juries and judges should give
their decisions in public. (It did not require every aspect of the judicial process to be
open, so that for example judges‟ deliberations could remain private, and some
evidence might be protected by privilege). Open justice was important for three reasons:
First, it assisted in the search for truth and played an important role in informing and
educating the public. Second, it enhanced accountability and deterred misconduct.
Third, it had a therapeutic function, offering an assurance that justice had been done.

[13] The principle of open justice, according to Chief Justice Spigelman,5 is one of the
most pervasive axioms of the administration of common law systems. It was from such
origins, so he states:
„that it became enshrined in the United States Bill of Rights and, more recently, in international
human rights instruments such as Article 14 of the International Covenant on Civil and Political
Rights (ICCPR) and Article 6 of the European Convention for the Protection of Human Rights,

4 Rt Hon B McLachlin PC „Openness and the rule of law‟ address by the Honourable Chief Justice to the
Annual
International
Rule
of
Law
Lecture
on
January
2014
available
at
http://www.barcouncil.org.uk/media/270848/jan_8__2014_-_12_pt.__rule_of_law_-
_annual_international_rule_of_law_lecture.pdf, accessed 23 March 2015;
5 Rt Hon J J Spigelman AC „The Principle of Open Justice: A Comparative Perspective‟ (September 20,
2005). University of New South Wales Law Journal (2006) Vol. 29 No. 1 at 147-166; also available on the
Social Science Research Network at http://papers.ssrn.com, accessed 30 March 2015. Address by the
Honourable JJ Spigelman AC, Chief Justice of New South Wales to the Media Law Resource Centre
Conference in London on 20 September 2005.

as adopted and implemented by the British Human Rights Act 1998. In both cases the right is
expressed as an entitlement to “a fair and public hearing by an independent and impartial
tribunal established by law.”‟6
The significance of the principle of open justice, he adds, „is of such a high order that,
even where there is no written constitution, or a written constitution does not extend to
the principle, the principle should be regarded as of constitutional significance.‟7 The
tradition of open justice had its origins in England before the Norman Conquest, when
freemen in the community participated in the public dispensing of justice.8 The tradition
had spread from England, particularly to those parts of the world which had adopted
and retained that common law heritage, but was also observed and respected in civil
law societies. The open court principle was affirmed in England in the strongest terms
by the House of Lords in the case of Scott v Scott [1913] AC 417, where Lord Atkinson
had said (at 463):
„The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent
both to parties and witnesses, and in many cases, especially those of a criminal nature, the
details may be so indecent as to tend to injure public morals, but all this is tolerated and
endured, because it is felt that in public trial is to found, on the whole, the best security for the
pure, impartial, and efficient administration of justice, the best means for winning for it public
confidence and respect.‟
Later in R v Legal Aid Board, ex parte Kaim Todner (a firm),9 Lord Woolf said:
„This is the reason it is so important not to forget why proceedings are required to be subjected
to the full glare of a public hearing. It is necessary because the public nature of proceedings
deters inappropriate behaviour on the part of the court. It also maintains the public's confidence
in the administration of justice. It enables the public to know that justice is being administered
impartially. It can result in evidence becoming available which would not become available if the
proceedings were conducted behind closed doors or with one or more of the parties' or
witnesses' identity concealed. It makes uninformed and inaccurate comment about the
proceedings less likely. If secrecy is restricted to those situations where justice would be
frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of
contempt having to be invoked, with the expense and the interference with the administration of
justice which this can involve.‟

6 J J Spigelman op cit at 9.
7 Ibid at 10.
8 B McLachlin op cit at 4-5.
9 R v Legal Aid Board, ex parte Kaim Todner (a firm) [1998] 3 All ER 541 at 549J-550B.

[14] Likewise, in the Canadian Supreme Court in Attorney General (Nova Scotia) v
MacIntyre [1982] 1 SCR 175 at 185, Justice (later Chief Justice) Dickson said:
„Many times it has been urged that the “privacy” of litigants requires that the public be excluded
from court proceedings. It is now well established, however, that covertness is the exception
and openness the rule. Public confidence in the integrity of the court system and understanding
of the administration of justice are thereby fostered. As a general rule the sensibilities of the
individuals involved are no basis for exclusion of the public from judicial proceedings.‟
With the advent of the Canadian Charter of Rights and Freedoms, the open court
principle was recognised as a component of freedom of expression, protected by s 2(b)
of the Charter.

[15] In the United States of America, Richmond Newspapers v Virginia 448 US 555
(1980), observed that the origins of the modern criminal trial in Anglo-American justice
can be traced back beyond reliable historical records. A summary of that history showed
that throughout its evolution, the trial has been open to all who cared to observe. Chief
Justice Burger pointed out that one „cannot erase from people's consciousness the
fundamental, natural yearning to see justice done . . .‟ He added:
„The crucial prophylactic aspects of the administration of justice cannot function in the dark; no
community catharsis can occur if justice is "done in a corner [or] in any covert manner." . . .
People in an open society do not demand infallibility from their institutions, but it is difficult for
them to accept what they are prohibited from observing.‟
More recently, the US Court of Appeals for the Sixth Circuit strongly affirmed the open
court principle when it stated:
„Democracies die behind closed doors. The First Amendment, through a free press, protects the
people‟s right to know that their government acts fairly, lawfully, and accurately . . . . When
government begins closing doors, it selectively controls information rightfully belonging to the
people. Selective information is misinformation. The Framers of the First Amendment “did not
trust any government to separate the true from the false for us” . . . They protected the people
against secret government.‟10
The court added that: „Open proceedings, with a vigorous and scrutinizing press, served
to ensure the durability of our democracy.‟11

10 Detroit Free Press v John Ashcroft 303 F.3d 681 at 683.
11 Ibid at 711.

[16] The idea that South African civil courts should be open to the public goes back to
1813.12 The principle of open courtrooms is now constitutionally entrenched.13
„Publicity‟, said the philosopher Jeremy Bentham, „is the very soul of justice. It is the
keenest spur to exertion, and the surest of all guards against improbity. It keeps the
judge himself, while trying, under trial.‟ The foundational constitutional values of
accountability, responsiveness and openness apply to the functioning of the judiciary as
much as to other branches of government.14 In Independent Newspapers,15 the
Constitutional Court dealt with an application for access to classified documents which
formed part of an appeal record. National security, so the Minister asserted, required
that the documents not be made available to the media and the public. The
Constitutional Court confirmed that the default position is one of openness and
disavowed an approach that proceeded from a position of secrecy, even in a case
where the documents in question had been lawfully classified as confidential in the
interest of national security. In deciding whether to make the disputed documents
publicly available, the Court expressly recognised a cluster of related constitutional
rights and principles which capture the „constitutional imperative of dispensing justice in
the open.‟16 It concluded that open justice is a crucial factor in any consideration of a
request to limit public disclosure of a court record.17 Although the issue at stake
concerned only access to the record – all the court proceedings were held in public. Yet
the court still emphasised the importance of openness and ordered that, despite claims
of national security, the vast majority of the record should be made publicly available.

12 Marais J explained in Financial Mail (Pty) Ltd v Registrar of Insurance & others 1966 (2) SA 219 (W) at
220F-G that: „Until 1813, in consonance with the then universal practice in Holland . . . whilst judgments
and orders of the Cape courts had to be pronounced in public, evidence and argument in trial cases were
heard in camera, with only the parties and their lawyers in attendance. The British Governor of the Cape,
in 1813, issued a proclamation requiring all judicial proceedings in future to be carried on with open doors
as a matter of “essential utility, as well as the dignity of the administration of justice”; it would imprint on
the minds of the inhabitants of the Colony the confidence that equal justice was administered to all in the
most certain, most speedy and least burdensome manner.‟
13 Section 34 of the Constitution provides that: „Everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair public hearing before a court, or where appropriate,
another independent and impartial tribunal or forum.‟
14 South African Broadcasting Corporation v National Director of Public Prosecutions 2007 (1) SA 523
(CC) paras 30-31.
15 Independent Newspapers (Pty) Ltd v Minister for Intelligence Services and another, In Re Masetlha v
President of the Republic of South Africa and another 2008 (5) SA 31 (CC).
16 These included the rights contained in ss 16, 34 and 35(3)(c) of the Constitution and the founding
values of the Constitution: Independent Newspapers paras 39 and 40.
17 Independent Newspapers paras 42 and 43.

[17] There exists, as Moseneke DCJ put it, „a cluster or, if you will, umbrella of related
constitutional rights which include, in particular, freedom of expression and the right to a
public trial, and which may be termed the right to open justice.‟18 That animating
principle, it is submitted by the City and the amici, is undermined by the judgment of the
high court, which endangers a range of overlapping and inter-related constitutional
rights, namely: (a) the rights of litigants to a public trial in both civil and criminal matters;
(b) the right of the public to open justice; (c) the right of everyone to access information;
(d) the right of a litigant to freedom of expression; and (e) the media‟s right to report on
court proceedings. Those rights, so the submission goes, are underpinned by the same
broad principle, namely a system where court proceedings and court documents are, by
default, open to the public. The right to a public hearing in s 34 of the Constitution and
the right to a public trial in s 35(3)(c) is afforded to litigants in civil matters and accused
persons in criminal matters. The publicity of a trial usually serves as a guarantee that
the matter will be determined independently and impartially. The glare of public scrutiny
makes it far less likely that the courts will act unfairly. In Shinga v The State19 Yacoob J
put it thus:
„Seeing justice done in court enhances public confidence in the criminal-justice process and
assists victims, the accused and the broader community to accept the legitimacy of that
process. Open courtrooms foster judicial excellence, thus rendering courts accountable and
legitimate. Were criminal appeals to be dealt with behind closed doors, faith in the criminal
justice system may be lost. No democratic society can risk losing that faith. It is for this reason
that the principle of open justice is an important principle in a democracy.‟

[18] As a general rule litigants are prejudiced when their proceedings are not held in
public. That is not to say that litigants may not sometimes wish to keep their litigation
private or that there may not be situations where a court may justifiably depart from the
default rule that court proceedings are public. But it will be a dangerous thing for all
litigants in both civil and criminal matters, for court documents, as a general rule to be
inaccessible and unpublishable. For, it may be said that the right to public courts, which
is one of long standing, does not belong only to the litigants in any given matter, but to

18 Independent Newspapers para 42.
19 Shinga v The State & another (Society of Advocates, Pietermaritzburg Bar as Amicus Curiae);
O’Connell and Others v The State 2007 (4) SA 611 (CC) para 26.

the public at large. Open justice is, moreover, required by s 32 of the Superior Courts
Act 10 of 2013, which provides:
„Save as is otherwise provided for in this Act or any other law, all proceedings in any Superior
Court must, except in so far as any such court may in special cases otherwise direct, be carried
on in open court.‟

[19] It needs be emphasised that courts are open in order to protect those who use
the institution and to secure the legitimacy of the judiciary, not to satisfy the prurient
interests of those who wish to examine the private details of others. The public, said
Langa CJ in SABC v NDPP, „is entitled to know exactly how the judiciary works and to
be reassured that it always functions within the terms of the law and according to time-
honoured standards of independence, integrity, impartiality and fairness‟.20 Without
openness, the judiciary loses the legitimacy and independence it requires in order to
perform its function. Thus Moseneke DCJ accepted in Independent Newspapers (para
43) that „the default position is one of openness‟. Accordingly, court proceedings should
be open unless a court orders otherwise. The logical corollary must therefore be that
departures should be permissible when the dangers of openness outweigh the benefits.
And by extension, the right of open justice must include the right to have access to
papers and written arguments which are an integral part of court proceedings
(Independent Newspapers para 41). That must follow axiomatically, it seems to me,
because the public would hardly be in a position to properly assess the legitimacy or
fairness of the proceedings if they could observe the proceedings in open court but
were denied access to the documents that provide the basis for the court‟s decision.

[20] The right to freedom of expression lies at the heart of democracy, and is one of a
„web of mutually supporting rights‟ that hold up the fabric of the constitutional order.21
Section 32(1) of the Constitution guarantees everyone the „right of access to information
held by the state‟. Citizens and public interest groupings rely on this right to uncover
wrongdoing on the part of public officials or for accessing information to report on
matters of public importance. The Constitutional Court has noted that the media has a

20 SABC v NDPP 2007 (1) SA 523 (CC).
21 Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security
and Others 1996 (3) SA 617 (CC) para 27.

duty to report accurately, because the „consequences of inaccurate reporting may be
devastating.‟22 It goes without saying that to report accurately the media must be able to
access information. Access to information is „crucial to accurate reporting and thus to
imparting information to the public.‟23 Whilst s 32 of the Constitution guarantees the right
of persons to access relevant information, s 16 entitles them to distribute that
information to others. Section 16(1)(b) of the Constitution provides: „Everyone has the
right to freedom of expression, which includes freedom to receive or impart information
or ideas‟. Importantly, therefore, the right to freedom of expression is not limited to the
right to speak, but also to receive or impart information and ideas. The media hold a key
position in society. Courts have long recognised that an untrammelled press is a vital
source of public information (see Grosjean v American Press Co. 297 US 233 (1936)).
Grosjean recognised that „since informed public opinion is the most potent of all
restraints upon misgovernment, the suppression or abridgement of the publicity afforded
by a free press cannot be regarded otherwise than with grave concern‟.  In this country
the media are not only protected by the right to freedom of expression, but are also the
„key facilitator and guarantor‟ of the right.24 The media‟s right to freedom of expression
is thus not just (or even primarily) for the benefit of the media: it is for the benefit of the
public.25 In Khumalo v Holomisa,26 the Constitutional Court put it thus:
„In a democratic society, then, the mass media play a role of undeniable importance. They bear
an obligation to provide citizens both with information and with a platform for the exchange of
ideas which is crucial to the development of a democratic culture. As primary agents of the
dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a
democracy and they have a constitutional duty to act with vigour, courage, integrity and
responsibility.‟
When justice is open, court reporting is a crucial avenue for public knowledge about
what the government does. It is particularly important where the government is one of
the parties in a case and where other sources of information are limited.

22 Brummer v Minister for Social Development 2009 (6) SA 323 (CC) para 63.
23 Ibid.
24 SABC V NDPP 2007 (1) SA 523 (CC) para 24; Mail and Guardian v Minister for Social Development
2009 (6) SA 323 (CC) para 63.
25 Midi Television (Pty) Ltd t/a e-tv v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540
(SCA) para 6.
26 Khumalo & others v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC) at para 24.
See also De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others [2003]
ZACC 19; 2004 (1) SA 406 (CC) at para 49.

[21] Not all information is readily revealed by the State and even powerful media
organisations sometimes face great difficulty in obtaining information in some areas. In
an environment of secrecy, journalists become vulnerable to off-the-record briefings and
strategic leaks by government. In this context, open justice is particularly important
because through court cases information can be exposed and tested in ways that may
not otherwise be possible. The judicial process generally shrinks from hearsay.
Witnesses swear to the truth and if they lie make themselves open to prosecution for
perjury.  The rules of evidence, which regulate what is revealed, are applied by an
independent judiciary. The whole process is thus designed to limit the extent to which
parties can craft and shape information for public consumption. In Scott (at 477), Lord
Shaw of Dunfermline famously warned „in the darkness of secrecy, sinister interest and
evil in every shape have full swing.‟

[22] Dr Lawrence McNamara27 makes the point that:
„As well as helping to ensure the fairness of trials and being a dimension of free speech rights,
open justice also has broader implications for democratic governance and government
accountability. The government derives its authority from the democratic process.  Executive
action should, in theory at least, be carried out in the public interest. The public are able to
express this interest through a variety of forums and channels, the most obvious being general
elections.  In order for the public to be able to express its opinion in an informed way, it is
heavily reliant on the media‟s ability to scrutinize the executive.‟
The big-picture view of open courts is thus that it protects those on trial not just from the
unfair application of the law, but crucially and in the long term, from unfair laws.28 Open
justice therefore serves democracy as much as it serves justice. It allows voters to
review the outcomes of current laws and to advocate, if needs be, for law reform.29 This
is an essential feature of a flourishing democracy, because, and this cannot be
emphasised enough, more openness and visibility about government activities helps to
build citizens‟ trust in their government. Even where national security is concerned and

27 Dr Lawrence McNamara is a Global Uncertainties Fellow and a Reader & Director of Postgraduate
Research at the School of Law at the University of Reading. See L McNamara „Opinion: Civil liberties
open justice and protection from terrorism‟ (2010) available at
http://www.debatingmatters.com/globaluncertainties/opinion/civil_liberties_open_justice_and_protection_f
rom_terrorism/, accessed on 25 March 2015.
28 K Fitzpatrick „Courts need to expand view of open justice‟ Irish Times of 16 June 2014 available at
http://www.irishtimes.com/news/crime-and-law/courts-need-to-expand-view-of-open-justice-1.1831537.
29 Ibid.

there are frequent restrictions on public access to evidence or information, as Dr
McNamara points out, limiting public access to evidence on national security grounds is
invariably controversial because the decision to impose restrictions will often be based
on information which is itself secret and cannot be publicly tested. 30

[23] Reverting then to the judgment of the high court – it did not provide a precise
formulation of the implied undertaking rule.31 Jenkins J first coined the expression
„implied undertaking‟ in 1948 (Alterskye v Scott [1948] 1 All ER 469). Until then, the
court often required an express undertaking before ordering production of particularly
confidential or sensitive documents. In Home Office v Harman [1982] 1 All ER 532 (HL),
it was held that the rule continued to bind the parties to a matter even after the hearing.
That aspect of the rule was successfully challenged before the European Commission
of Human Rights.32  As a result, in 1987 the legislature changed the law so that it would
no longer be a contempt of court to make public material contained in documents
compulsorily disclosed in civil proceedings once those documents had been read out or
referred to in open court.33 In April 1999 the Rule was codified in the Civil Procedure

30 Dr McNamara observes that courts face a dilemma where any party – but in practice usually the
government – claims that openness would result in a danger to national security and restrictions must be
placed on the ability of the public to scrutinize the judicial process. On the one hand, the court should be
convinced that the danger is genuine and that national security is not just being used as an excuse to
keep politically embarrassing information from the public. On the other, the courts may not always be in
the best position to judge whether information will pose a danger to national security as it is the executive
government which arguably has a more complete picture of the circumstances and relevance of the
information concerned. L McNamara op cit.
31 The high court stated in para 40:
„The notion of an “undertaking” is, however, somewhat misleading. The use of the term arises from the
original requirement in the early 19th century of an express undertaking. Its continued use is convenient in
the context of characterising breaches of the rule as contempt of court in the sense of involving the
breaking of a national undertaking to the court.‟ In Bourns Inc v Raychem Corp [1999] 1 All ER 908 at
para 16, Laddie J put the position more realistically when he explained that the fiction of an implied
undertaking was in fact an expression of the existence of a legal obligation:
“The implied undertaking not to make collateral use of documents disclosed on discovery arises
automatically as an incident of the discovery process. It is in no sense implied as a result of dealings
between the parties. The discloser may well not have thought of the implications of giving discovery and
the disclosee may well not have turned his mind to the matter of what use he can make of the documents
outside the action. Had he thought of it, he might well have wanted full freedom to do what he liked with
the material, particularly if his own discovery is non-existent or very limited. So the obligation is not to be
likened to a term implied in a contract between the parties to the litigation. On the contrary, it is an
obligation to the court, not the other party, which is implied. It is for that reason that its breach is treated
as contempt. The obligation is imposed as a matter of law.”‟ (Footnotes omitted.)
32 Harman v UK (1985) 7 EHRR 146 (EComm).
33 RSC Ord. 24, r. 14A (CCR Ord. 14, r. 8A).

Rules 1998 (CPR) as a self-contained provision.34 The English codification sought to
introduce uniformity in part because prior cases were inconsistent. The general rule
under CPR r. 31.22 is that a party to whom a document has been disclosed may use
such document only for the purposes of the proceedings in which it is disclosed. There
are three exceptions however, namely, where: (a) the document has been read to or by
the court, or referred to, at a hearing that has been held in public; (b) the court gives
permission; or (c) the party who disclosed the document, and the person to whom the
document belongs agree. While the rule generally binds third parties, a court may grant
the Crown leave to use material covered by the rule as evidence for the prosecution in
criminal proceedings.35 In some cases third parties are not bound and a court may, in
the public interest, allow a third party to use material disclosed in breach of the rule
without leave of a court.36

[24] The rule is applied in Australia,37 but does not appear to have found universal
favour. In a minority judgment in Hearne v Street [2008] HCA 36 (6 August 2008), Kirby
J pointed out that there has been recognition in both England and Australia that the
rationale for the rule is looking „rather threadbare‟ and that the arguments for a court

34 CPR r. 31.22(1)(a) states:
„Any undertaking, whether express or implied, not to use a document for any purposes other than those of
the proceedings in which it is disclosed shall cease to apply to such document after it has been read to or
by the Court, or referred to, in open Court, unless the Court for special reasons has otherwise ordered on
the application of a party or of the person to whom the document belongs.‟
35 Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 (HL); Attorney General for
Gibraltar v May and Others [1999] 1 WLR 998.
36 In re Judicial Review [2010] NIQB 95 (17 September 2010): The Northern Ireland Queen‟s Bench
refused to bar the use in professional misconduct proceedings of documents which had been disclosed in
breach of the Rule. The court held that the third party was not bound by the implied undertaking and
could use the documents obtained as it was in the public interest that the disciplinary charges proceed.
This was confirmed in H v W [2012] NIFam 8 (29 May 2012).
37 A Stanfield and P N Argy Electronic Evidence 3ed paras 8.35 and 8.36 state:
„There is an implied undertaking by the recipient of discovered material not to use the discovered
documents or material contained in them for any ulterior purpose other than the proceedings in relation to
which they were produced. A breach of this duty will be punishable as contempt of court. If discovered
documents contain commercially sensitive or confidential information, the court may require the party
seeking inspection to give express confidentiality undertakings and may limit the persons authorised to
inspect the documents (most commonly to outside legal advisors).
The court may allow a party, upon application, to use discovered documents for a purpose other than
conduct of the proceedings in which they were discovered if there are “circumstances which take the
matter out of the ordinary course” which make such an exercise of the court's discretion in the interests of
justice. The same implied undertaking not to use documents for a collateral purpose applies to “wherever
the coercive power of the court has been employed to enable a person to obtain the documents of
another” including in relation to witness statements, answers to interrogatories, affidavits, subpoenaed
documents and documents obtained pursuant to search orders.‟ See also Australian Competition and
Consumer Commission v Allphones Retail Pty Limited (No 3) [2009] FCA 1075.

continuing to uphold and enforce the rule left him „unconvinced‟. There appear to be
differences in the application of the rule there. The Australian Federal Court Rules
provide that the rule ceases to apply to any document after it has been read to or by the
court or referred to in open court in such terms as to disclose its contents unless the
court otherwise orders.38 In the State of Victoria, however, there is a distinction between
original documents that exist independently from and generally prior to the litigation and
those produced solely for the purposes of litigation such as witness statements. In the
case of the former, the rule remains in force even if those documents had been
tendered in evidence in open court and, in the latter, the rule applies only until the
witness statement passes into evidence.39 The rule generally applies to third parties,
including journalists and other non–parties who acquire the documents and who are
compelled to seek leave to be released from the undertaking to be able to use it.40 In
Victoria, third parties are permitted to inspect the documents to determine whether they
wish to use them and whether they wish to apply for them to be released from the
undertaking.41 A court may in the public interest grant a release from the rule to allow for
evidence to be used in a criminal investigation and prosecution.42

[25] The rule was first introduced in Canada in 1985. In some provinces, the rule
exists as part of the common law while Ontario, Manitoba and Prince Edward Island
have codified the rule.43 The implementation varies significantly across Canadian
jurisdictions. An issue on which there is no uniformity is whether the rule remains
operative for an indeterminate period or expires when the information to which it

38 Federal Court of Australia, Federal Court Rules, No. 140 of 1979 Order 15 rule 18, provides:
„Any order or undertaking, whether express or implied, not to use a document for any purpose other than
those of the proceedings in which it is disclosed shall cease to apply to such a document after it has been
read to or by the Court or referred to, in open Court, in such terms as to disclose its contents unless the
Court otherwise orders on the application of a party, or of a person to whom the document belongs.‟
39 British American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571 at para 43. See also
R Williams „Implied Undertaking: Express reform required‟ Monash Law Review (Vol 34, No. 1) which sets
out the differences in the Federal code and State of Victoria.
40 Esso Australia Resources Ltd v Plowman [1995] 183 CLR 10 at 37.
41 As provided for in r 28.05 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). See also
British American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571 at para 37. This was
based on the rationale that since such persons can only know the use to which they intend to put the
documents once they have read and considered it, they should be able to read them subject to the
undertaking in order to determine whether to seek leave to be released from the undertaking. In relation
to documents tendered in evidence, Cowell is inconsistent with the course adopted in most other
jurisdictions but remains the Victorian position on the issue.
42 Andrew Koh Nominees Pty Ltd v Pacific Corporation Ltd [No 2] [2009] WASC 207.
43 C Papile „The Implied Undertaking revisited‟ The Advocates Quarterly 2006 at 191 and 194.

pertains is introduced in open court. The divergence arises from the tension between
wanting to preserve confidentiality on the one hand and a resistance to creating the
anomalous situation that third parties can access information but the recipient of the
discovery cannot use it on the other. For that reason, the rule usually ceases to apply
once the discovered document is presented in open court. In three provinces - British
Columbia, Alberta and Nova Scotia - the rule ceases to operate only when the court so
orders.44 Unlike in England and Australia, the Canadian Supreme Court45 refused to
grant a release from the rule to allow material covered by it to be used as evidence in
the prosecution of serious criminal charges.

[26] The rule does not form part of the law in the United States of America. It is for the
party making production to obtain an express agreement of confidentiality from the
receiving party or a protective order from court. Absent an express confidentiality
agreement between the parties or an order of court, there are no restrictions on the
uses to which materials received on discovery may be put. If the agreement seeks to
maintain confidentiality beyond the pre-trial stage it is likely to raise public policy and
First Amendment issues. Once the material is filed at court, the principle of public
access to court records creates a presumption that the material will be available to the
public.46

[27] The rule is not part of our law. Only three earlier reported South African
authorities have referred to the rule. In the first, Crown Cork & Seal Co Inc & another v
Rheem South Africa (Pty) Ltd & others 1980 (3) SA 1093 (W), Schutz AJ, recognised at
the commencement of his judgment that there appears to be no direct authority in South
Africa as to whether a court „may place limitations upon a litigant‟s ordinary right of
untrammelled inspection and copying of documents discovered by his opponent . . .‟.
After usefully summarising the position as it obtained in England, the learned judge
posed the question (at 1098F-G) whether the „English practice may be adopted in South
Africa, and if it may, whether it should?‟ Implicit in that statement, it seems to me, was

44 C Papile op cit at 191.
45 Juman v Doucette 2008 SCC 8.
46 C Papile op cit at 193. A party may motion the court in terms of Federal Rule of Civil Procedure 26(c)
for a protective order to keep disclosed materials confidential.

the recognition that the English practice was not yet a part of our law. Although he did
thereafter state (at 1099H) that in his view „it is open to a South African court to adopt
the English practice‟, he proceeded to decide the matter in accordance with our rule
35(7). I do not read the rest of the judgment as having, one way or the other,
affirmatively answered the question earlier posed by the learned judge. The high court
appears to have been plagued by similar uncertainty when it stated: „[I]f there be any
doubt that the judgment in Crown Cork has not already done so, the time has come to
hold unequivocally that the rule does form part of our law. . .‟.47 In the second -
Replication Technology Group & others v Gallo Africa Ltd 2009 (5) SA 531 (GSJ) -
which considered whether documents disclosed during arbitration proceedings between
the parties could be relied upon in related contempt proceedings, Malan J stated (para
17) that he did not have to determine whether the rule forms part of South African law
because the use of the documents in question was permitted by a recognised exception
to the rule in that case. The third – Mathias International Ltd & another v Baillache &
others 2015 (2) SA 357 (WCC) – also a judgment by Binns-Ward J, held in the context
of Anton Piller proceedings that the applicant‟s supporting affidavit in the ex parte
application brought in that case to obtain a search order had contained such an implied
undertaking. The high court accepted that no South African court had made any „explicit
determination‟ that the rule is part of our law and that we have hitherto regulated access
to and dissemination of information forming part of the court record or discovered
documents which were regarded as confidential, without any invocation of the rule.48

[28] In adopting the rule, the high court appears to have invoked its inherent power to
regulate its own processes in terms of s 173 of the Constitution.49 That our courts were
endowed with such power even in our pre-constitutional era is evident from the following
dictum of Corbett JA: „There is no doubt the Supreme Court possesses an inherent
reservoir of power to regulate its procedures in the interests of the proper administration

47 Paragraph 57.
48 Paragraph 53.
49 Section 173 of the Constitution provides:
„The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect
and regulate their own process, and to develop the common law, taking into account the interests of
justice.‟

of justice . . . „.50 Courts now derive their power from the Constitution itself.51  As it was
put by the Constitutional Court in SABC v NDPP:52
„This is an important provision which recognises both the power of Courts to protect and
regulate their own process as well as their power to develop the common law. . . .  The power
recognised in s 173 is a key tool for Courts to ensure their own independence and impartiality. It
recognises that Courts have the inherent power to regulate and protect their own process. A
primary purpose for the exercise of that power must be to ensure that proceedings before
Courts are fair. It is therefore fitting that the only qualification on the exercise of that power
contained in section 173 is that Courts in exercising this power must take into account the
interests of justice.‟ (Footnotes omitted.)
But the Constitutional Court did remind us that „it is a power which has to be exercised
with caution53 and sparingly having taken into account the interests of justice in a
manner consistent with the Constitution.‟54

[29] In addition, s 39(2) of the Constitution makes it plain that, when a court embarks
upon a course of developing the common law, it is obliged to „promote the spirit, purport
and objects of the Bill of Rights.‟55 This ensures that the common law will evolve, within
the framework of the Constitution, consistently with the basic norms of the legal order
that it establishes.56 The Constitutional Court has already cautioned against
overzealous judicial reform. Thus, if the common law is to be developed, it must occur
not only in a way that meets the s 39(2) objectives, but also in a way most appropriate
for the development of the common law within its own paradigm.57 Faced with such a
task, a court is obliged to undertake a two-stage enquiry: It should ask itself whether,
given the objectives of s 39(2), the existing common law should be developed beyond
existing precedent - if the answer to that question is a negative one, that should be the
end of the enquiry.  If not, the next enquiry should be how the development should

50 Universal City Studios Inc and others v Network Video (Pty) Ltd 1986 (2) SA 734 (A) at 754G.
51 Phillips & others v National Director of Public Prosecutions 2006 (1) SA 505 (CC) para 47.
52 SABC v NDPP 2007 (1) SA 523 (CC) para 35 and 36.
53 S v Pennington and another 1997 (4) SA 1076 (CC).
54 Parbhoo and others v Getz NO and another 1997 (4) SA 1095 (CC).
55 S v Thebus 2003 (6) SA 505 (CC) para 25; City of Tshwane Metropolitan Municipality v RPM Bricks
(Pty) Ltd 2008 (3) SA 1 (SCA) para 20.
56 Pharmaceutical Manufacturers Association of South Africa; In re Ex parte President of the Republic of
South Africa 2000 (2) SA 674 (CC) para 49.
57 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) para 55.

occur and which court should embark on that exercise. None of these considerations
merited even a mention in the judgment of the high court.

[30] Even were it open to the high court to invoke s 173, that section does not
empower a court to create a procedural rule in the absence of a lacuna. And it has not
been suggested that the existing law is insufficient. Moreover, s 173 did not empower
the high court to make a law of general application. Independent Newspapers58
stressed that a court had to consider the competing rights or interests at stake on a
case by case basis to ensure a fair trial. According to the Constitutional Court, when
there is a claim for secrecy in respect of part of the court record, „the court is properly
seized with the matter and is obliged to consider all relevant circumstances and to
decide whether it is in the interests of justice for the documents to be kept secret and
away from any other parties, the media or the public.‟59 Independent Newspapers did
not authorise or contemplate the adoption by a court of a new rule which would apply
indiscriminately to all cases without regard to the circumstances.

[31] A court attempting to transplant a rule from a foreign jurisdiction should of
necessity have regard to the differing constitutional contexts between that country and
this. The Constitutional Court recently affirmed that the following principles apply in
considering the use of foreign law:60
„(c)
The similarities and differences between the constitutional dispensation in other
jurisdictions and our Constitution must be evaluated. Jurisprudence from countries not under a
system of constitutional supremacy and jurisdictions with very different constitutions will not be
as valuable as the jurisprudence of countries founded on a system of constitutional supremacy
and with a constitution similar to ours.
(d)
Any doctrines, precedents and arguments in the foreign jurisprudence must be viewed
through the prism of the Bill of Rights and our constitutional values.‟
All law, in this country, must be grounded in constitutional values and respect must be
given to the fundamental rights set out in the Bill of Rights. The adoption of a rule from
another country must be considered in that context and in particular against a

58 Independent Newspapers para 45.
59 Independent Newspapers para 55.
60 H v Fetal Assessment Centre (CCT 74/14) [2014] ZACC 34; 2015 (2) SA 193; 2015 (2) BCLR 127;
(CC) para 31.

constitutional right of access to information held by the State regardless of the reason,
and a right of access to privately-held information required for the exercise or protection
of any right.61

[32] In procedural matters, s 171 of the Constitution makes plain that „[a]ll courts
function in terms of national legislation and their rules and procedures must be provided
for in national legislation‟. A further bar to the adoption of the rule would thus seem to be
the doctrine of the separation of powers. There are a number of reasons why a court is
ill-suited to adopting the rule. They include the following: the rule, on the face of it,
would appear to be at odds with the default Constitutional position - which makes
openness, access to information and free expression the norm, and requires justification
of an exception. The rule, by contrast, makes secrecy the default position. The content,
timing, duration, ambit, limitations on and enforcement of the rule are complex matters
involving controversial and difficult policy considerations. This is evident from the fact
that where the rule does apply in comparable foreign jurisdictions, its content is not
uniform. Questions of whether such a rule is necessary, and if so its content, are
matters that may well require public debate and consideration. This is a legislative and
not a judicial task. If there is a deficiency, the remedy lies in appropriate legislation or
the amendment of Uniform rules of court.62

[33] Although the high court shied away from any attempt at formulating the rule, from
its references to other jurisdictions, one may infer that it intended the rule to have some
- if not all - of the following attributes: A party may use discovered documents only for
the litigation in which it is engaged and not for a „collateral‟ or „ulterior‟ purpose.
Impermissible „collateral‟ use includes use of information in different legal proceedings,
use as evidence of a serious criminal charge, and the dissemination, publication or
distribution of discovered information in a pending case. The rule applies not only to the
documents discovered, but also to information derived from those documents and
covers even innocuous information that is not confidential. The rule binds any third party
who receives the discovered documents. The rule applies as well to a rule 53 record. It
ceases to apply at the latest when the matter is placed before the court for hearing.

61 Section 32 of the Constitution.
62 Universal City Studios Inc v Network Video (Pty) Ltd 1986 (2) SA 734 (A) at 755J.

Both the court and the party making discovery may authorise their dissemination,
publication or distribution. In matters of public interest, the court would tend to allow
general access to the content of a court file at an earlier stage, once pleadings in the
case have closed and application has been made for a hearing date, or such a date has
been fixed.  A court may relax or modify the rule to meet „the exigencies of a case that
might afford sufficient reason to depart from its ordinary incidence.‟

[34] In the event, and notwithstanding the fact that it had not properly defined the rule,
the high court appears to have been in favour of reformulating the rule - from what is not
exactly clear:
„to, in general, allow public access to the content of the court file, including any information
subject to the implied undertaking rule that has been included in the pleadings or affidavits,
once a matter has been set down for hearing, rather than only after the matter had been called
in court, because this would conduce to more effective open justice without unduly impinging on
the parties‟ rights of privacy. . .‟63
But declined to do so because:
„I do not consider that the current case affords a suitable basis to undertake the exercise. It is
one that in any event probably would be more appropriately addressed by the Rules Board after
a process of public participation.‟64
The high court thus appears to have seen only the reformulation of the rule, but
paradoxically, not its adoption or initial formulation, as a matter for the Rules Board.

[35] The high court held that the rule applies to discovered documents and that since
rule 53(1)(b) is „an incident of discovery in our law, by parity of reasoning‟ the rule
derived from English law applies to rule 53(1)(b). Rule 53,65 which governs review

63 Paragraph 50.
64 Ibid.
65  Rule 53 provides:
„(1). Save where any law otherwise provides, all proceedings to bring under review the decision or
proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or
administrative functions shall be by way of notice of motion directed and delivered by the party seeking to
review such decision or proceedings to the magistrate, presiding officer or chairman of the court, tribunal
or board or to the officer, as the case may be, and to all other parties affected-
(a) calling upon such persons to show cause why such decision or proceedings should not be reviewed
and corrected or set aside, and
(b) calling upon the magistrate, presiding officer, chairman or officer, as the case may be, to dispatch,
within fifteen days after receipt of the notice of motion, to the registrar the record of such proceedings
sought to be corrected or set aside, together with such reasons as he is by law required or desires to give

proceedings in this country, is home-grown. In Jockey Club of South Africa v Forbes
1993 (1) SA 649 (A) at 660, Kriegler AJA explained:
„Not infrequently the private citizen is faced with an administrative or quasi-judicial decision
adversely affecting his rights, but has no access to the record of the relevant proceedings nor
any knowledge of the reasons founding such decision. Were it not for Rule 53 he would be
obliged to launch review proceedings in the dark and, depending on the answering affidavit(s) of
the respondent(s), he could then apply to amend his notice of motion and to supplement his
founding affidavit. Manifestly the procedure created by the Rule is to his advantage in that it
obviates the delay and expense of an application to amend and provides him with access to the
record. In terms of para (b) of subrule (1) the official concerned is obliged to forward the record
to the Registrar and to notify the applicant that he has done so. Subrule (3) then affords the
applicant access to the record. (It also obliges him to make certified copies of the relevant part
thereof available to the Court and his opponents. The Rule thus confers the benefit that all the
parties have identical copies of the relevant documents on which to draft their affidavits and that
they and the Court have identical papers before them when the matter comes to Court.) More
important in the present context is subrule (4), which enables the applicant, as of right and
without the expense and delay of an interlocutory application, to “amend, add to or vary the
terms of his notice of motion and supplement the supporting affidavit”. Subrule (5) in turn

or make, and to notify the applicant that he has done so.
(2). The notice of motion shall set out the decision or proceedings sought to be reviewed and shall be
supported by affidavit setting out the grounds and the facts and circumstances upon which applicant
relies to have the decision or proceedings set aside or corrected.
(3). The registrar shall make available to the applicant the record dispatched to him as aforesaid upon
such terms as the registrar thinks appropriate to ensure its safety, and the applicant shall thereupon
cause copies of such portions of the record as may be necessary for the purposes of the review to be
made and shall furnish the registrar with two copies and each of the other parties with one copy thereof,
in each case certified by the applicant as true copies. The costs of transcription, if any, shall be borne by
the applicant and shall be costs in the cause.
(4). The applicant may within ten days after the registrar has made the record available to him, by delivery
of a notice and accompanying affidavit, amend, add to or vary the terms of his notice of motion and
supplement the supporting affidavit.
(5). Should the presiding officer, chairman or officer, as the case may be, or any party affected desire to
oppose the granting of the order prayed in the notice of motion, he shall-
(a) within fifteen days after receipt by him of the notice of motion or any amendment thereof deliver notice
to the applicant that he intends so to oppose and shall in such notice appoint an address within eight
kilometers of the office of the registrar at which he will accept notice and service of all process in such
proceedings; and
(b) within thirty days after the expiry of the time referred to in subrule (4) hereof, deliver any affidavits he
may desire in answer to the allegations made by the applicant.
(6). The applicant shall have the rights and obligations in regard to replying affidavits set out in rule 6.
(7). The provisions of rule 6 as to set down of applications shall mutatis mutandis apply to the set down of
review proceedings.‟

regulates the procedure to be adopted by prospective opponents and the succeeding subrules
import the usual procedure under Rule 6 for the filing of the applicant's reply and for set down.‟
Kriegler AJA emphasised at 662C:
„Our Rule 53 and our practice for the review of decisions by extrajudicial tribunals differs toto
caelo from Order 53 of English practice. Indeed, virtually all they have in common is the
number.‟

[36] Rule 53 exists to facilitate applications for review. Thus the simple equation by
the high court of discovery to a rule 53 disclosure appears inappropriate and unjustified.
In terms of rule 53, the right to require the record of the proceedings of a body whose
decision is taken on review, is primarily intended to operate for the benefit of the
applicant.66 While there is a similarity between trial discovery and review proceedings,
inasmuch as in both a party is compelled to make disclosure for the purposes of
litigation there are fundamental differences between the two. Unlike rule 53, discovery is
only undertaken after the pleadings have closed. The object of mutual discovery is to
give each party before trial, all the documentary material of the other party so that each,
after the contours have already been drawn, can consider its effect on his own case and
his opponent‟s case and decide whether to carry on at all and, if so, how to carry on the
proceeding. Discovered documents do not form part of the record, and are not before
the court unless a party decides at the trial to make use of them. It is therefore quite
possible, even likely, that many of the documents which were discovered will never see
the light of day in court. In those cases, there may possibly be reason to argue that such
privacy interest as originally existed, continues to exist unless and until the documents
are used in the litigation. Review, on the other hand, usually arises from the exercise of
a statutory or public power. When an applicant in review proceedings files its
supplementary affidavit, after having had sight of the record, it is, in effect fully stating its
case for the first time. Here, the City has used the material in question for the purpose
for which it was provided, namely in its SFA. The material is relevant. The high court
found that the information is not confidential or secret in the sense that it requires
sealing or other protection. It saw „no reason why, when the review application gets to
be heard, [the documents] should be kept secret‟. The approach of the high court

66 Saccawu v President Industrial Tribunal 2001 (2) SA 277 (SCA) para 7.

appears to be that the rule protects the right to privacy. The privacy, so it seems, would
come to an end „at the latest‟ when the matter is placed before the court for hearing.
What remains unexplained though is what privacy can possibly exist in material that: (a)
has been used for the purpose for which it was provided; (b) is relevant to the litigation;
(c) is not secret or confidential; and (d) in any event will be disclosed in due course.

[37] Discovery impinges upon the right to privacy of the party required to make
discovery. According to Lord Denning MR,67  „compulsion is an invasion of a private
right to keep one‟s documents private‟. But while there is an interest in protecting
privacy there is also the public interest in discovering the truth. The purpose of the rule
therefore is to protect, insofar as may be consistent with the proper conduct of the
action, the confidentiality of the disclosure. Litigants must accordingly be encouraged to
make full discovery on the assurance that their information will only be used for the
purpose of the litigation and not for any other purpose. In that sense, so the thinking
goes, the interests of the proper administration of justice require that there should be no
disincentive to full and frank discovery.68 Those considerations can hardly apply in
respect of documents disclosed by a public body in rule 53 proceedings. And, as rule 53
will only ever apply to the disclosure of documents by public bodies, I entertain some
doubt as to whether such body can invoke the right to privacy to protect from disclosure
documents relied upon by it to make its decisions. That does not mean that public
bodies never have a claim to keep their documents confidential. But any claim of
confidentiality arises from other interests such as security or perhaps even the privacy
rights of persons mentioned in the documents, but not from its right to privacy. It must
be remembered that SANRAL did not plead any reliance on the right to privacy. It
claimed only a confidentiality right and not a privacy right, and then only in respect of
the material in NOM2. That confidentiality claim was rejected by the high court. The
production of the administrative record is inherently necessary for a court to undertake
the task of determining the regularity of the proceeding sought to be impugned. „Without
the record a court cannot perform its constitutionally entrenched review function‟
(Democratic Alliance v Acting NDPP 2012 (3) SA 486 (SCA) para 37).

67 Riddick v Thames Board Mills Ltd [1997] 3 All ER 677 at 687-688.
68 Replication Technology Group & others v Gallo Africa Ltd 2009 (5) SA 531 (GSJ) at 539D-F.

[38] Section 32(1)(a) of the Constitution affords everyone „the right of access to
information held by the state‟. Section 32(2) requires national legislation to be enacted
to give effect to that right. The Promotion of Access to Information Act 2 of 2000 (PAIA)
is the national legislation in question. It establishes, in accordance with s 32 of the
Constitution, a default position of openness in relation to documents held by the State.
Once a record is obtained under PAIA there are no restrictions on how the information
may be used. PAIA does not prevent persons who have obtained documents from the
State from further distributing them. Those documents are public documents and can be
made publicly available. However, a person, in the position of the City, who may obtain
those self-same documents through review proceedings is, on the approach of the high
court, prohibited from using them and, what is more, would appear to commit an offence
by doing so. In importing the rule into South African law, the high court held that its
breach would lay the person concerned „open to being committed for contempt of court‟.
Without quite appreciating it, the high court appears to have created a new crime or
extended the definition of an existing crime. But, as Schreiner ACJ observed in R v
Sibiya 1955 (4) SA 247 (A) at 256G-H, „it is not for the Courts to create new crimes, nor
is it for the Courts to give an extended definition to a crime‟. And, in Jayiya v MEC for
Welfare, Eastern Cape 2004 (2) SA 611 (SCA), this court held that the definition of
contempt of court may not be extended by a court.

[39] Turning to the subrule: The high court interpreted the subrule restrictively to
permit only persons with a direct legal interest access to a court file. Anyone else who
seeks access must apply to court. This interpretation applies to all court documents and
in all cases (not just documents produced by way of discovery or in terms of rule 53). It
effectively seals court records which, at least before a hearing, would no longer be
treated as public records. It does so without regard to whether their contents are in fact
confidential or should be secret, or whether it in fact serves a public interest that it be
available. The high court‟s approach to the subrule was informed by its view that the
subrule is „an important administrative basis to support the implied undertaking rule‟.
The restriction of public access was so that „the effect of the implied undertaking rule
would not be materially curtailed‟. The high court noted in its judgment that the parties
had approached the matter on the assumption that once the pleadings had been filed at

court they became „generally open to the public‟. But that was in accordance with the
then prevailing practice in the high court.

[40] Rule 62(7) reads: „Any party to a cause, and any person having a personal
interest therein, with leave of the registrar on good cause shown, may at his office,
examine and make copies of all documents in such cause‟. {move next sentence back}
Section 39(2) of the Constitution enjoins courts when interpreting any legislation and
when developing the common law to promote the spirit, purport and objects of the Bill of
Rights. That requires courts when interpreting a statute (or in this instance a rule of
court) to avoid an interpretation that would render the statute unconstitutional and adopt
an interpretation that would better promote the spirit, purport and objects of the Bill of
Rights. The purpose is to find a reasonable interpretation which saves the validity of the
subrule. The subrule must be understood in the context of the whole of rule 62. Rule 62
deals with technical, procedural and oftentimes plain mundane matters. It is concerned
with the preparation, filing and inspection of documents. It specifies the type of ink and
paper that must be used; deals with numbering and indexing; and affords the registrar
the power to refuse to accept documents that do not comply with the rule. It would thus
be somewhat surprising that if the drafters had meant to drastically restrict access to
court documents, they would have done so in terms of the subrule. In the context of the
rule as a whole, the subrule is better read as doing no more than permitting the copying
and examination of court records, which must occur with the registrar‟s leave, at his or
her office, rather than as a substantive prohibition on access.

[41] The high court held that „the expression “personal interest” in the context of rule
62(7) connotes something equivalent to a direct legal interest‟.69  It thus interpreted the
subrule to mean that the registrar may only provide access to: (a) parties; and (b) those
with a direct legal interest in the case. That requires the registrar to make a
determination as to whether or not a party has a direct legal interest in the matter. It is
entirely unclear how the high court envisioned this determination would be made by the
registrar.

69 Paragraph 35.

[42] The subrule uses the phrase „personal interest‟. The qualifier „personal‟ can
equally well be read to mean any person who is personally interested in the matter. The
amici submitted that there are several pointers that this is not only the only plausible -
but also a preferable - interpretation of the subrule. First, the rules of this court,70 the
Constitutional Court,71 the Land Claims Court,72 the Labour Court73 and the Magistrates‟
Court,74 all state that „any person‟ may make copies of all court documents in the
presence of the registrar (or clerk). Only the Uniform rules qualify the phrase „any
person‟ with the words „having a personal interest therein‟. Yet there appears to be no
reason in logic that would suggest that the difference in wording requires a different
approach in practice in the high court. The phrase „any person having a personal
interest therein‟ is clearly capable of referring, as the other rules do, simply to „any
person‟. The ambiguity in the meaning should therefore be resolved by adopting the
meaning that is consistent with the unambiguous intent of every other rule in South
African courts on the issue. Second, this is how the rule has in fact been interpreted in
practice. Prior to the high court judgment, that was the practice in that court. With a few
exceptions, it remains the default practice in most, if not all, the other divisions that any
person may obtain access to court documents. This thus appears the most natural
interpretation of the subrule. Third, such an interpretation, moreover, coheres with how
the phrase is used elsewhere in the rules. The only other place the phrase „personal
interest‟ appears is in rule 57. That rule requires an application for the appointment of a
curator ad litem to be accompanied by an affidavit of a person who knows the patient,
and two medical practitioners. If the person „has any personal interest in the terms of
any order sought‟ the affidavit must disclose the „full details of such relationship or

70 Supreme Court of Appeal Rule 4(3)(a) reads: „Documents filed for Court purposes are public
documents and may be inspected by any person in the presence of the registrar.‟ (My emphasis.)
71 Constitutional Court Rule 4(6) reads, in relevant part: „Copies of a record may be made by any person
in the presence of the Registrar.‟ (My emphasis.)
72 Land Claims Court Rule 4(4) reads: „All documents forming part of the records in a case may be
perused by any person in the presence of the Registrar or any person designated by him or her.‟ (My
emphasis.)
73 Labour Court Rule 28(4) reads: „Any person may make copies of any document filed in a particular
matter, on payment of the fee prescribed from time to time, and in the presence of the registrar, unless a
judge otherwise directs.‟ (My emphasis.)
74 Magistrates‟ Court Rule 3(5) reads: „Copies of the documents referred to in rule 3(4) may be made by
any person in the presence of the registrar or clerk of the court.‟ Rule 3(4) refers to all documents filed
with the court. Magistrates‟ Court Rule 63(6) reads: „Any person, with leave of the registrar or clerk of the
court and on good cause shown, may examine and make copies of all documents in a court file at the
office of the registrar or clerk of the court.‟ (My emphasis.)

interest‟. In addition, the medical practitioners should be people „without personal
interest in the terms of the order sought‟. It is meant to capture those people who have
an intimate or financial relationship with the patient. That appears to demonstrate that
„direct legal interest‟ is not the necessary, let alone the most obvious, meaning of
„personal interest‟ when the phrase is used in the Uniform rules. In my view there is
much to be said for these submissions by the amici. Textually, it appears the most
plausible. It does not seek to give the term personal interest a stretched or unnatural
meaning. It adopts the ordinary meaning that: (a) is consistent with the constitutional
right to open justice; (b) is compatible with the position in all other comparable courts as
expressed in the rules and as given effect to in practice; and (c) fits with the other uses
of personal interest in the Uniform rules. Clearly, there is nothing inherent in the use of
the word interest that requires it to be interpreted to mean direct legal interest.75 Indeed,
it is the interpretation advanced by the amici that best promotes constitutional rights. It
is, therefore, the interpretation that this court should endorse. The high court‟s
interpretation is inconsistent with the Constitution. It severely limits the basic principle of
open justice, and the rights to public hearings, freedom of expression and access to
information for the reasons described earlier. And it relies on a contrived textual
interpretation. It makes the high court an outlier, with far more restrictive rules of access
than any other superior court. It should be rejected for all those reasons.

[43] With a view to limiting the degree of violation, the high court held that: (a) „the
court may permit an inspection of the record at any time if it is appropriate to do so, and
due cause is shown for a departure from the usual consequences of the rules‟; and (b)
the prohibition in each instance operates only until the case is called in open court.
Neither procedure materially ameliorates the restriction, inasmuch as: First, an
applicant, having no access to the court file, may well have great difficulty in making out
a case as to why such access should be granted. Such person is thus expected to show
„good cause‟ without having had sight of the papers, and would have to approach a
court blindfolded, so to speak. It may thus prove well-nigh impossible for any third party

75 It is so that where this court was required to interpret a similar phrase, namely „person with an interest‟
in Minister of Environmental Affairs and Tourism & others v Atlantic Fishing Enterprises (Pty) Ltd & others
2004 (3) SA 176 (SCA) para 14, it was willing to assume, without deciding, that it referred to „a legal
interest‟. Streicher JA stated „I shall assume in favour of the appellants that the word “interest” should be
given the narrow meaning contended for by them.‟

to intervene. In any event one would imagine that such an applicant would need the
papers before the hearing in order to assess whether or not they even wish to intervene.
Second, the public generally may have as legitimate an interest in cases that never get
heard in open court, because they are settled or withdrawn, as in cases that are called
in open court. It is not clear to me how or why the interest of either the litigants or the
public would materially alter simply by virtue of the fact that the matter has been called
in open court. One way or the other the parties have still chosen to engage in court
proceedings. Even if a matter settles, it seems to me, that it should still be subject to the
requirement of openness, more especially where litigation involves public entities. For,
the public will have as real an interest in evaluating the court papers to determine
whether the decision to settle or withdraw was justified. Third, it is not possible for the
media to report accurately on court proceedings if they can only access the documents
once the case is called. It is vital that the public be able to have access to court records
prior to the hearing so that they can follow the proceedings in open court. Without prior
access to the papers, the proceedings will have less meaning for them. Moreover,
having access to papers in advance allows journalists to prioritise reporting on matters
of public interest. Fourth, cases that are settled may also provide vital evidence that
reveals wrongdoing and the public would be entitled to know whether a case was
properly settled, or whether the settlement was influenced by some improper motive.
That can only be determined by access to the papers. Fifth, an application for access to
papers is an additional cost in time and money. In many cases, people who otherwise
have an interest in the matter may be unable to afford an application for access. While
the high court attempts to paint this option as enhancing access, in reality, it may prove
an insuperable barrier to many, particularly litigants with limited funds. This not only
negatively affects access to justice, it may disadvantage courts who will be deprived of
the benefit of the submissions that amici curiae make.

[44] Both the rule and the high court‟s interpretation of the subrule thus impinge on
open justice by preventing the public and media from being able to scrutinise court
proceedings before a matter is heard. But there is a strong default position in our law
against prior restraints on publication.76 Prior restraints „should only be ordered where

76 Midi Television (Pty) Ltd t/a e-tv v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540

there is a substantial risk of grave injustice.‟77 A blanket rule can hardly, without more,
meet that high threshold. If the rule and the subrule apply as found by the high court,
they appear in my view to be almost certainly inconsistent with the Constitution. The
blanket and default prior restraint on publication, as well, could hardly pass
constitutional muster. The high court pointed out that the City did not challenge the
constitutionality of the subrule or bring a counter-application seeking leave to depart
from the incidents of the subrule. But the City could hardly have brought a counter-
application or challenged a law: (a) which was not then in use or relied upon by
SANRAL but employed by the high court in support of a right to privacy, which was not
pleaded; and (b) on the basis of an interpretation which was not advanced by SANRAL
and emerged only in the high court judgment.

[45] In the present case, the demand for accountability arises with particular force
because of what is in issue in the review proceedings. Secrecy is the very antithesis of
accountability. It prevents the public from knowing what decision was made, why it was
made, and whether it was justifiable. As Ngcobo CJ pointed out in M&G Media, „[i]t is
impossible to hold accountable a government that operates in secrecy‟.78 On that score
Justice Brandeis of the US Supreme Court famously remarked that „[s]unlight is said to
be the best of disinfectants‟; electric light the most efficient policeman.‟79 It is a matter of
fundamental importance to the administration of justice that members of the public, who
are directly affected by the controversial issue of tolling, be allowed access to all of the
arguments, the court records and the hearing of the review. The controversy would
deepen if SANRAL were to ultimately succeed in having the review application
dismissed after a partially secret hearing. That would not serve the public interest or the
interests of justice.

[46] Our law and practice already impose limits on the dissemination of material
produced by discovery or in terms of rule 53. They include: (a) the law of defamation;
(b) the actio injuriarum which protects both dignity and privacy, and which prevents the

(SCA) para 15.
77 Print Media South Africa and Another v Minister of Home Affairs and Another Print Media South Africa
and Another v Minister of Home Affairs and Another 2012 (6) SA 443 (CC) para 44-46.
78 President of the Republic of SA v M & G Media Ltd 2012 (2) SA 50 (CC) para 10.
79 L Brandeis „What Publicity Can Do‟ in Harpers Weekly of 20 December 1913 at 10.

publication of private facts‟;80 (c) a court‟s discretion under rule 35(7) to limit inspection
of discovered documents which are confidential (as in Crown Cork); (d) statutes which
restrict publication of private and confidential information;81 and (e) any reasonable
limitation on the use of material which a court may order in a particular case, exercising
its power in terms of s 173, to prevent an abuse of the rules of discovery or rule 53.
There are cases where parties have – as the City did here – voluntarily provided
express confidentiality undertakings, or where the courts have granted orders, tailored
to the circumstances of the case, to protect allegedly confidential information, and
provided mechanisms to resolve disputes. The principle of open justice has its limits of
course and concomitantly a commitment to open justice does not mean that there
should always be unrestricted reporting, nor that there may not be good and genuine
reasons why information should sometimes be restricted. But whether that be so, falls to
be determined on a case by case basis. To be sure, the science is unlikely to be exact
and so the task may not be an easy one. Yet it can be accomplished if the court
identifies and carefully evaluates what is at stake on both sides of the issue. If indeed
the high court was satisfied that a proper case had been made out (it evidently was not)
it could have fashioned appropriate relief to meet the exigencies of the particular case
instead of impermissibly laying down – as it did - blanket rules.

[47] The animating principle therefore has to be that all court records are, by default,
public documents that are open to public scrutiny at all times. While there may be
situations justifying a departure from that default position – the interests of children,
State security or even commercial confidentiality – any departure is an exception and
must be justified. The high court‟s judgment, which is inconsistent with that basic
principle with regard to both the rule and subrule, cannot be endorsed by this court. Its
interpretation of the subrule creates a default rule of secrecy for all court records. In
addition, its application of the rule limits the ability of litigants to ensure publicity when
they challenge the actions of the State. In order meaningfully to exercise the right to
open justice, members of the public (and the media) cannot simply be relegated to the
role of spectator. While the gist of the matter may be apparent to a person attending the

80 NM v Smith (Freedom of Expression Institute as Amicus Curiae) 2007 (5) SA 250 (CC) para 34 and 55.
81 Such as ss 33 to 37 of the International Trade Administration Act 71 of 2002 and ss 44 and 45 of the
Competition Act 89 of 1998.

hearing, it is only through an understanding of the background and issues raised on the
papers that proper comprehension and critical analysis of the proceedings, and
ultimately the court‟s findings, is possible. This is especially so in motion proceedings,
which are based on the affidavits before the court and their annexures, and where oral
evidence is not given in open court. This means that court challenges to government
action will be less open than they currently are. Thus where openness is most sorely
needed – the consideration of government conduct – the high court judgment limits
openness the most. The blanket of secrecy it throws over previously open proceedings
undermines the legitimacy and effectiveness of the courts.

[48] It follows that as the high court was correct in dismissing SANRAL‟s application,
costs, including those of three counsel (which it was accepted was necessary),
obviously should have followed that result. For the rest, the order of the high court
cannot stand and falls to be set aside. In the result:
1.
The appeal is upheld with costs including the costs of three counsel.
2.
The order of the court below is set aside and replaced with the following:
„The application is dismissed with costs including the costs of three counsel.‟

_________________
V M Ponnan
Judge of Appeal

APPEARANCES:

For Appellant:
G Budlender SC (with him N Bawa and
R Paschke)

Instructed by:

Cullinan & Associates, Cape Town

Cordiers, Bloemfontein

For First Respondent:
J G Wasserman SC (with him G J Nel and
I B Currie)

Instructed by:

Fasken Martineau, Sandton

Webbers, Bloemfontein

For Amici Curiae:

W Trengrove SC (with him M Bishop)

Legal Resources Centre, Cape Town

Honey Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

30 March 2015

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

City of Cape Town v South African National Roads Authority Limited & others
(20786/14) [2015] ZASCA 58 (30 March 2015)

The Supreme Court of Appeal (SCA) today handed down judgment in a matter relating to access to
court records and whether such records should be open to the public.

The appeal to the SCA by the City of Cape Town (the City) was against the judgment of the Western
Cape Division of the High Court, Cape Town that held, in favour of the South African National Roads
Authority Limited (SANRAL), that the publication of all information from the rule 53 record, including
‘the non-confidential record’ was prohibited until the review application was called.

Proceedings began in the Westen Cape Division of the High Court, when the City launched a review
application in terms of rule 53 of the Uniform rules of court, seeking to review SANRAL’s decision to
award the tender to Protea Parkways Consortium as the preferred bidder and Overberg Consortium
as the reserve bidder in respect of what has been described as the N1/N2 Winelands Paarl Highway
Toll Project. SANRAL furnished the City with the administrative record in terms of Uniform rule
53(1)(b) in two parts, marked respectively as, the ‘non-confidential record’ and ‘the confidential
record’. That created a dispute between the parties as to precisely what constituted the rule 53
record. Having found that SANRAL had failed to make out a case in respect of each of the specified
categories, the Western Cape Division dismissed SANRAL’s application. However, the court a quo
went further to issue an order holding that the record disclosed by SANRAL is subject to the ‘implied
undertaking rule’ (the rule) which meant that unless authorised by SANRAL or by the court, the
administrative record was not to be disseminated or published before the review application.

The SCA found that the rule had not been raised by SANRAL in its affidavit and that the City had thus
not been called upon to answer that case in the court a quo. The SCA also found that the court below
prohibited the publication of all information from the rule 53 record, including the non-confidential
record, whereas SANRAL’s case was that: all such information, apart certain specified portions, could
be made public immediately, while other parts of the information must be kept secret only until
SANRAL filed its answering papers, not until the hearing.

The SCA held that the rule is not part of South African law. The notion of ‘open justice’ and the ‘open
court principle’ which has been part of the South African law since the eighteenth century and other
foreign jurisdictions is now constitutionally entrenched in section 34 of the Constitution.

The SCA further held that courts are open in order to protect those who use the institution and to
secure the legitimacy of the judiciary, not to satisfy the prurient interests of those who wish to
examine the private details of others. Without openness, the judiciary loses the legitimacy and
independence it requires in order to perform its function. Accordingly, held the SCA, court
proceedings should be open unless a court orders otherwise. The logical corollary must therefore be
that departures should be permissible when the dangers of openness outweigh the benefits. And by
extension, the right of open justice must include the right to have access to papers and written
arguments which are an integral part of court proceedings.

The SCA held that the right to freedom of expression lies at the heart of democracy, and is one of a
web of mutually supporting rights that hold up the fabric of the constitutional order. The media hold a
key position in society. They are not only protected by the right to freedom of expression, but are also
the key facilitator and guarantor of that right and thus, the media’s right to freedom of expression is
thus not just for the benefit of the media, but it is for the benefit of the public. The Court held that both
the rule and the court a quo’s interpretation of the rule 53(1)(b) thus impinge on open justice by
preventing the public and media from being able to scrutinise court proceedings before a matter is
heard, whereas there is a strong default position in our law against prior restraints on publication.

The SCA found that demand for accountability arose with particular force because of what was in
issue in the review proceedings in the court below; and that secrecy is the very antithesis of
accountability which prevents the public from knowing what decision was made, why it was made,
and whether it was justifiable.

The SCA accordingly upheld the appeal with costs and the judgment of the Western Cape Division
was set aside and replaced with an order dismissing SANRAL’s application with costs.

--- ends ---