Cape Town City v South African National Roads Authority and Others

• Jurisdiction: South Africa
• Judge: Ponnan JA, Saldulker JA, Zondi JA, Van Der Merwe AJA and Gorven AJA
• Judgment Date: 30 March 2015
• Docket Number: 20786/14 [2015] ZASCA 58
• Hearing Date: 18 March 2015
• Counsel: G Budlender SC (with N Bawa and R Paschke) for the appellant. JG Wasserman SC (with GJ Nel and IB Currie) for the first respondent. W Trengove SC (with M Bishop) for various organisations as amici curiae.
• Court: Supreme Court of Appeal

Ponnan JA (Saldulker JA, Zondi JA, Van der Merwe AJA and Gorven AJA concurring):

[1] This appeal raises matters of the greatest public importance to the H 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 I (Sanral), an organ of state as defined in s 239 of the Constitution, is

Ponnan JA (Saldulker JA, Zondi JA, Van der Merwe AJA and Gorven AJA concurring)

A 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 B 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 C '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 culminated in a letter dated 25 October 2013 written by the City's attorney to Sanral's attorney, recording:

'3.

D 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 E 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 F 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 G 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 publicly or on a closed basis, the parties will ask a judge or the court to decide that question at a preliminary hearing. Any such preliminary hearing will be closed, and the parties and H 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.

Ponnan JA (Saldulker JA, Zondi JA, Van der Merwe AJA and Gorven AJA concurring)

3.4

Sanral will provide the City with a list of documents and A 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 B 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 C 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 D 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 E 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 F 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. G

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 H 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 I 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.' J

Ponnan JA (Saldulker JA, Zondi JA, Van der Merwe AJA and Gorven AJA concurring)

A [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 B 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 C 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 D 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 E 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, F 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 G criticised on a socioeconomic 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 H 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" utilised by the City suggest that the Project I 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...