“Open justice” and the “Open court principle” in South African law

“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Lord Hewert in Rex v Sussex Justices of 1924.

The above quote was taken from an English decision by Lord Hewert in 1924. What does this quote mean to us today and more importantly does the public still see justice to be done, even today?

The issue of “Open Justice” and the “Open Court Principle” and it’s validity and importance in the South African legal sphere was revisited by the Supreme Court of Appeal in the well-publicised matter of City of Cape Town v South African National Roads Authority Limited & others (20786/14) [2015] ZASCZ 58 (30 March 2015).

Proceedings began in the Western Cape High Court when the City of Cape town 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 construction of the N1/N2 Winelands Paarl Highway Toll Project.

SANRAL, in terms of what was longed from them in terms of Rule 53(1)(b) provided the City with the administrative record, however they marked it in 2 parts; “non-confidential records” and “confidential records”. SANRAL’s refusal to make public certain “confidential” information until the review proceedings have been heard now formed a dispute between SANRAL and the City as to what constitutes “confidential records”.

The Western Cape High court was the approached to decide on whether the information is indeed confidential. The Western Cape High court ruled that SANRAL failed to make out a case for confidentiality. One would think that that would have been a sufficient judgment to vent the issues between the parties. SANRAL had to make available the information end of story; however the court went on to make 2 further judgments:

  1. it ruled that the administrative record which SANRAL had filed was in any event covered by the “implied undertaking” rule. The effect of this ruling was that SANRAL or the court had to consent to certain information being made public. Without their consent the records could only be made public once the main review application was heard.
  2. secondly, the court held that Rule 62(7) of the Uniform Rules of Court (rules governing the internal workings and processes of the High Court) had the effect that in any event the public cannot access the contents of a court file until the case is called in court.

This two-legged ruling had an adverse effect on the “Open Justice” and “Open Court Principle” which begged the question whether these principles were being protected enough and what effect it will have on the Media directly as well as the public, should these principles be compromised.

The matter then turned in the Supreme Court of Appeal to decide on the ruling of the Western Cape High court. Justice Ponnan authorised the unanimous decision of the appeal court. He gave a broad study of the principles of Open Justice and Open Courts. He visited the History pertaining to the development of these principles both abroad and locally. South Africans’ right to “seeing justice being done” is enshrined in the Constitution of our country, more specifically Section 34 of the Constitution. The court found that all law in this country must be grounded in the constitutional values and respect must be given to the fundamental rights set out in the Bill of Rights.

The “implied undertaking rule”, as discussed supra, does not even form part of our South African law and is an English principle. It is totally irreconcilable with the Constitution of this country and more specifically Section 34 of the Constitution. Rule 62(7) of the Uniform Court Rules, it was found by the SCA, was also misinterpreted.

The SCA found that: “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 the default position – the interest of children, State Security or even commercial confidentiality – any departure is an exception and must be justified.”

The principle of open justice and the public’s rights of access to our courts and court proceedings are the very corner stone of justice. The moment courts are allowed to operate in secret the legitimacy, independence and fairness of our justice system will be drawn into question. The public should respect the legal system, no doubt, but if the public is not allowed to scrutinise the workings of our judiciary surely respect for the system will perish.

One can ponder whether this judgment by the SCA will, for example, have an impact on the so called “Secrecy Bill”, which Parliament proposed to enact into law and other similar iniquities by Parliament. Hopefully the courts will have the same sentiment when faced with the validity of such Bills or Acts. Ignorance is bliss, sure, but there can be no democracy within an ignorant society. It will be wise for the other legs of the trias politica to take note of the sentiments of our courts regarding acting under the cover of secrecy.

The SCA judgment is a big relieve not only for the media, who plays a valuable role in our society, but for society as a whole. It is refreshing to know that our courts value the importance of “open justice” and transparency. As the Supreme Court of appeal worded it: “secrecy is the very antithesis of accountability.” The court also referred to US Spreme Court Justice Brandeis’s quote pertaining to open justice: “Sunlight is said to be the best disinfectant, electric light the most effective policeman.”

By Marguerite Kirchner
marguerite@dyason.co.za