Cape Town City v South African National Roads Authority and Others

• Jurisdiction: South Africa

Cape Town City v South African National Roads Authority and Others
2015 (3) SA 386 (SCA)

2015 (3) SA p386

Citation	2015 (3) SA 386 (SCA)
Case No	20786/14; [2015] ZASCA 58
Court	Supreme Court of Appeal
Judge	Ponnan JA, Saldulker JA, Zondi JA, Van Der Merwe AJA and Gorven AJA
Heard	March 18, 2015
Judgment	March 30, 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.

Flynote : Sleutelwoorde B

Constitutional law — Constitution — Foundational values — Rule of law — Open justice — Court records by default open to public — Departure from rule C permissible only where justified by exceptional circumstances — 'Implied undertaking rule', viz that party to whom documents disclosed may not make collateral use of them, inconsistent with open justice rule — Hence not part of South African law.

Discovery and inspection — Production of documents — Implied undertaking rule — Party to whom documents disclosed will not use them for collateral D or ulterior purpose — Rule inconsistent with constitutional principle of open justice and hence not part of South African law.

Headnote : Kopnota

Sanral (the state road authority) and the City of Cape Town were involved in a legal battle about the future tolling of certain Western Cape roads. When E the city applied for a rule 53 review of Sanral's decision to award a road-construction tender, Sanral sought to suppress publication of part of the record on the ground that it was 'confidential'. When the City objected, citing public interest in the matter, Sanral approached the Western Cape Division, Cape Town, for an interdict barring the City from publishing the 'confidential' information. The High Court found that while Sanral failed F to establish confidentiality, publication of the record was nonetheless barred by the 'implied undertaking rule'. The rule — which the High Court said was part of South African law and aimed at the protection of the right to privacy — prohibited parties from using discovered documents for 'collateral' purposes (ie for the purposes other than the litigation in question). The High Court also relied on rule 62(7), [*] which it said buttressed the G implied undertaking rule by requiring a direct legal interest in the case for access to the record to be granted. The result was that the record was closed pending the hearing of the review application. In an appeal the SCA —

Held: The principle of open justice — that courts must be open to the public — was venerable and constitutionally entrenched. Openness, not secrecy, was the default position under the Constitution, [†] and deviations from the norm had H to be justified. Since the right to open justice axiomatically included the right of access to court files, the implied undertaking rule was unconstitutional and not part of South African law. Hence it could not be used to bar access to the rule 53 record. The High Court's invocation of a privacy

2015 (3) SA p387

interest on the part of a public body like Sanral was, moreover, problematic. A Rule 62(7), which was a technical provision not intended to curtail substantive rights, likewise had to be read in conformity with the principle of open justice so as to allow anyone interested in the case access to the court file. The High Court's use of the implied undertaking rule and rule 62(7) to effectively seal the rule 53 record was inconsistent with the B principle of open justice and could not be endorsed, particularly in view of the fundamental importance of public accountability in the present proceedings. Appeal upheld and Sanral's application dismissed. (Paragraphs [16] – [19], [22], [27], [32], [36] – [38] and [40] – [47] at 400H – 403D, 404H – 405E, 409E – 410D, 412G – 413A, 415G – 417F and 418A – 423D.)

Cases Considered

Annotations C

Case law

Southern Africa

Baront Investments (Pty) Ltd v West Dune Properties 296 (Pty) Ltd and Others 2014 (6) SA 286 (KZP): approved

Brümmer v Minister for Social Development and Others 2009 (6) SA 323 (CC) D (2009 (11) BCLR 1075; [2009] ZACC 21): dictum in para [63] applied

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22): referred to

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) E (1996 (1) SACR 587; 1996 (5) BCLR 609; [1996] ZACC 7): dictum in para [27] applied

City of Tshwane Metropolitan Municipality v RPM Bricks (Pty) Ltd 2008 (3) SA 1 (SCA) ([2007] ZASCA 28): referred to

Crown Cork & Seal Co Inc and Another v Rheem South Africa (Pty) Ltd and Others 1980 (3) SA 1093 (W): discussed and explained F

Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others 2012 (3) SA 486 (SCA): referred to

De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2004 (1) SA 406 (CC) (2003 (2) SACR 445; 2003 (12) BCLR 1333; [2003] ZACC 19): dictum in para [49] applied

Financial Mail (Pty) Ltd v Registrar of Insurance and Others 1966 (2) SA 219 (W): G dictum in 220F – G applied

Fischer and Another v Ramahlele and Others 2014 (4) SA 614 (SCA) ([2014] ZASCA 88): dictum in paras [13] – [14] applied

H v Fetal Assessment Centre 2015 (2) SA 193 (CC) (2015 (2) BCLR 127; [2014] ZACC 34): referred to

Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: H In re Masetlha v President of the Republic of South Africa and Another 2008 (5) SA 31 (CC) (2008 (8) BCLR 771; [2008] ZACC 6): applied

Jayiya v Member of the Executive Council for Welfare, Eastern Cape, and Another 2004 (2) SA 611 (SCA) ([2003] 2 All SA 223): referred to

Jockey Club of South Africa v Forbes 1993 (1) SA 649 (A): discussed

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) I (2002 (8) BCLR 771; [2002] ZACC 12): dictum in para [24] applied

Mathias International Ltd and Another v Baillache and Others 2015 (2) SA 357 (WCC): compared

Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) (2007 (9) BCLR 958; [2007] 3 All SA 318): dictum in para [6] applied J

2015 (3) SA p388

Minister of Environmental Affairs and Tourism and Others v Atlantic Fishing Enterprises (Pty) Ltd and Others 2004 (3) SA 176 (SCA): referred to A

NM and Others v Smith and Others (Freedom of Expression Institute as Amicus Curiae) 2007 (5) SA 250 (CC) (2007 (7) BCLR 751): referred to

Parbhoo and Others v Getz NO and Another 1997 (4) SA 1095 (CC) (1997 (10) BCLR 1337): applied B

Pharmaceutical Manufacturers Association of South Africa: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241; [2000] ZACC 1): referred to

Phillips and Others v National Director of Public Prosecutions 2006 (1) SA 505 (CC) (2006 (1) SACR 78; 2006 (2) BCLR 274; [2005] ZACC 15): referred to

President of the Republic of South Africa and Others v M & G Media Ltd 2012 (2) SA 50 (CC) ([2011] ZACC 32): referred to C

Print Media South Africa and Another v Minister of Home Affairs and Another 2012 (6) SA 443 (CC): referred to

R v Sibiya 1955 (4) SA 247 (A): dictum at 256G – H applied

Replication Technology Group and Others v Gallo Africa Ltd 2009 (5) SA 531 (GSJ): compared D

S v Pennington and Another 1997 (4) SA 1076 (CC) (1999 (2) SACR 329; 1997 (10) BCLR 1413; [1997] ZACC 10): referred to

S v Thebus and Another 2003 (6) SA 505 (CC) (2003 (2) SACR 319; 2003 (10) BCLR 1100; [2003] ZACC 12): referred to

SACCAWU and Others v President, Industrial Tribunal, and Another 2001 (2) SA 277 (SCA): referred to E

Shinga v The State and Another (Society of Advocates, Pietermaritzburg Bar as Amicus Curiae); O'Connell and Others v The State 2007 (4) SA 611 (CC) (2007 (2) SACR 28; 2007 (5) BCLR 474): dictum in para [26] applied

South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 (1) SA 523 (CC) (2007 (1) SACR 408; 2007 (2) BCLR 167; [2006] ZACC 15): dictum in paras [30] – [31] applied F

South African National Road Agency Ltd v City of Cape Town and Others: In re Protea Parkway Consortium v City of Cape Town and Others [2014] 4 All SA 497 (WCC): reversed on appeal

Universal City Studios Inc and Others v Network Video (Pty) Ltd 1986 (2) SA 734 (A) ([1986] ZASCA 3): referred to G

Western Cape Education Department and Another v George 1998 (3) SA 77 (SCA): dictum at 84E applied.

Australia

Andrew Koh Nominees Pty Ltd v Pacific Corporation Ltd (No 2) [2009] WASC 207: referred to H

Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 3) [2009] FCA 1075: referred to

British American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571: referred to

Esso Australia Resources Ltd v Plowman [1995] 183 CLR 10 (HCA): referred to I

Hearne v Street (2008) 235 CLR 125 (HCA) ([2008] HCA 36): discussed.

Canada

Attorney General (Nova Scotia) v MacIntyre [1982] 1 SCR 175: compared

Juman v Doucette [2008] 1 SCR 157 (SCC) (2008 SCC 8): referred to. J

2015 (3) SA p389

England A

Alterskye v Scott [1948] 1 All ER 469 (Ch D): discussed

Attorney General for Gibraltar v May and Others [1999] 1 WLR 998 (CA): referred to

Home Office v Harman [1983] 1 AC 280 ([1982] 1 All ER 532): discussed

R v Legal Aid Board, ex parte Kaim Todner (a firm) [1998] 3 All ER 541 (CA): applied B

Rank Film Distributors Ltd and Others v Video Information Centre and Others [1982] AC 380 (HL) ([1981] 2 All ER 76): referred to

Riddick v Thames Board Mills Ltd [1977] 3 All ER 677 (CA): referred to

Scott v Scott 1913 AC 417 (HL): applied.

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