23 February 2015

Joint Statement: Civil society organisations intervene in City of Cape Town’s dispute with SANRAL

For Imme­di­ate Release: 23 Feb­ru­ary 2015

Eleven civil soci­ety, aca­d­e­mic and media groups have joined forces to chal­lenge a threat to open jus­tice and democ­racy in South Africa. The threat arises from a ret­ro­gres­sive High Court judg­ment made last year. The organ­i­sa­tions will be dis­put­ing its con­sti­tu­tion­al­ity at the Supreme Court of Appeal (SCA), fol­low­ing their admis­sion as friends of the court (amici curiae).

Last week, on the 20 Feb­ru­ary 2015, the Legal Resources Cen­tre, act­ing as the group’s legal rep­re­sen­ta­tive, filed heads of argu­ment at the SCA in Bloem­fontein. The mat­ter is to be heard on 18 March.

In the heads, the group argues that, “The judg­ment of the High Court sub­stan­tially reduces cur­rent access to records of the High Court, threat­ens the free­dom of the media, cur­tails the work of pub­lic inter­est organ­i­sa­tions and under­mines the inde­pen­dence of the judi­ciary.”

The mat­ter has its ori­gins in a judg­ment handed down in the Cape Town High Court on 28 August last year by Judge Ash­ley Binns-Ward, who had been asked by the South African National Roads Agency Ltd (SAN­RAL) to rule that papers it had filed in response to a City of Cape Town appli­ca­tion be kept con­fi­den­tial. The City’s appli­ca­tion sought to stop SAN­RAL intro­duc­ing new toll roads in the West­ern Cape.

Judge Binns-Ward dis­missed SANRAL’s con­fi­den­tial­ity plea, but went fur­ther by apply­ing a con­cept known as the “implied under­tak­ing rule” to admin­is­tra­tive reviews. This pro­hibits the par­ties from pro­vid­ing the record of the admin­is­tra­tive action to other peo­ple. This deprives the pub­lic of an impor­tant source of infor­ma­tion about the oper­a­tion of gov­ern­ment, and makes it more dif­fi­cult to hold the state account­able for its con­duct.

The judge also reversed the long­stand­ing prac­tice that any per­son could gain access to court records from the Reg­is­trar of the High Court. Rule 62(7) of the Uni­form Rules of Court allows any per­son with a “per­sonal inter­est” to access court papers via the court Reg­is­trar. The High Court wrongly inter­preted this to limit access to court records to those with a direct legal inter­est in the case. This has already affected the abil­ity of jour­nal­ists to access court records to report accu­rately on legal dis­putes, and poten­tially bars indi­vid­u­als, organ­i­sa­tions and com­mu­ni­ties with only a poten­tial inter­est in a mat­ter from know­ing what that mat­ter is about and join­ing in to pro­tect rights.

The 11 amici are the Right2Know Cam­paign, Section16, The Open Democ­racy Advice Cen­tre, The M&G Cen­tre for Inves­tiga­tive Jour­nal­ism, The South African National Edi­tors’ Forum, The Legal Resources Cen­tre, Section27, The Socio-Economic Rights Insti­tute, The South African His­tory Archive, The Demo­c­ra­tic Gov­er­nance and Rights Unit and Cor­rup­tion Watch.

In their sub­mis­sions to the SCA, the amici will present evi­dence of the impact of the High Court judg­ment on the inde­pen­dence of the judi­ciary, the right of access to courts, pub­lic inter­est lit­i­ga­tion, the pre­ven­tion of cor­rup­tion and free­dom of speech and the press.

They will argue that the implied under­tak­ing rule should have no appli­ca­tion to reviews of pub­lic power, and that the proper and most nat­ural inter­pre­ta­tion of rule 62(7) should allow free access to all High Court records unless the court specif­i­cally orders con­fi­den­tial­ity.


For comment: Steve Kahanovitz (Attorney, Legal Resources Centre) steve@lrc.org.za 083 235 0962