City of Cape Town v South African National Roads Authority Limited & others

The City of Cape Town launched a review application under rule 53 challenging SANRAL's decision to award a tender for the N1/N2 Winelands Paarl Highway Toll Project to Protea Parkways Consortium. SANRAL provided the administrative record in two parts: "non-confidential" and "confidential". The parties agreed on a confidentiality protocol whereby the City's representatives signed confidentiality undertakings. Before filing its supplementary founding affidavit (SFA), which referenced both confidential and non-confidential records, the City provided SANRAL a copy. SANRAL applied to the high court seeking redaction of portions of the SFA in two schedules (NOM1 and NOM2), arguing disclosure would cause public alarm and harm to tender negotiations. The high court dismissed SANRAL's application on the basis that SANRAL failed to establish grounds for secrecy. However, the high court then, of its own motion, adopted the "implied undertaking rule" from English law and interpreted rule 62(7) of the Uniform Rules restrictively, effectively sealing court records until a matter is heard in open court.

• Whether the 'implied undertaking rule' from English law forms part of South African law
• Whether rule 53(1)(b) disclosure is subject to the implied undertaking rule
• The proper interpretation of rule 62(7) of the Uniform Rules of Court regarding public access to court documents
• Whether the court had jurisdiction to adopt a new procedural rule of general application
• Whether restrictions on access to court records are consistent with constitutional principles of open justice, freedom of expression, and access to information
• The balance between confidentiality claims and the constitutional imperative of open justice

The appeal was upheld with costs including costs of three counsel. The order of the high court was set aside and replaced with an order dismissing SANRAL's application with costs including costs of three counsel.

The binding legal principles established are: (1) The implied undertaking rule from English law does not form part of South African law and should not be adopted through judicial development; (2) Open justice is a constitutional imperative - court records are public documents by default and any departure must be justified on a case-by-case basis; (3) Rule 53(1)(b) disclosure in review proceedings differs fundamentally from discovery and should not be subject to the same confidentiality restrictions, particularly where it involves disclosure by public bodies; (4) Rule 62(7) should be interpreted to mean that "any person having a personal interest" refers broadly to any person personally interested in the matter, consistent with constitutional principles of open justice and similar rules in other courts; (5) Courts should not create blanket rules restricting access to court documents; any restrictions must be tailored to the circumstances of the particular case and justified by compelling reasons; (6) Section 173 of the Constitution does not empower courts to create procedural rules of general application in the absence of a lacuna - such matters are for the legislature or Rules Board; (7) Prior restraints on publication of court documents can only be ordered where there is a substantial risk of grave injustice; (8) The constitutional right to access information held by the state (section 32) applies to documents disclosed in rule 53 proceedings and cannot be circumvented by procedural rules; (9) When interpreting rules of court, courts must adopt an interpretation that promotes the spirit, purport and objects of the Bill of Rights, particularly the rights to open justice, freedom of expression and access to information.

The court made several non-binding observations: (1) It expressed doubt as to whether public bodies can invoke the right to privacy to protect documents relied upon to make decisions, though they may have other grounds for confidentiality such as security or privacy rights of individuals mentioned in documents; (2) The court noted existing mechanisms in South African law to protect confidential information, including defamation law, the actio injuriarum, rule 35(7), statutes restricting publication of confidential information, and court orders under section 173 tailored to specific circumstances; (3) The court emphasized the importance of open justice in matters involving public entities and use of public funds, noting that secrecy is the antithesis of accountability; (4) The court observed that sunlight is "the best of disinfectants" and that openness builds public trust in government; (5) The court discussed the historical origins of open justice in common law jurisdictions and its recognition in international human rights instruments; (6) The court noted that creating a new crime or extending the definition of contempt of court is not within judicial power; (7) The court commented that even where national security is concerned, limiting public access to evidence is controversial because the decision is often based on secret information that cannot be publicly tested; (8) The court emphasized that the media's right to freedom of expression exists not just for the media's benefit but for the public benefit; (9) The court observed that cases that settle may provide vital evidence of wrongdoing and the public has an interest in knowing whether settlements were properly concluded.

This judgment is a landmark decision on open justice in South African law. It affirms the constitutional imperative that court proceedings and records must be open to public scrutiny by default, with secrecy being an exception requiring justification. The judgment rejects the adoption of the English "implied undertaking rule" and establishes that rule 53 disclosure in administrative review proceedings is not subject to the same restrictions as discovery. It provides important guidance on interpreting rule 62(7) broadly to facilitate public access to court documents. The decision reinforces the interconnected constitutional rights to public hearings (sections 34 and 35(3)(c)), freedom of expression (section 16), and access to information (section 32). It emphasizes the vital role of open justice in ensuring judicial accountability, public confidence in the administration of justice, and democratic governance. The judgment has significant implications for transparency in litigation involving organs of state and matters of public interest. It establishes that members of the public and media must have access to court papers before hearings to meaningfully exercise the right to open justice and report accurately on proceedings. The decision also clarifies the separation of powers, indicating that the creation of procedural rules of general application is a legislative function, not a judicial one, and that courts should exercise caution when invoking section 173 powers. The case is particularly important for access to information in cases involving government decision-making and the use of public funds.