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30 Mar 2015 15:34
The Supreme Court of Appeal (SCA) on Monday struck down a Western Cape High Court
judgment that limited media and public access to court records countrywide.
AmaBhungane, which had joined the court proceedings as part of a civil
society coalition, welcomed the judgment. Karabo Rajuili, its advocacy co-ordinator,
said: “This is a huge victory
for open justice and the public’s right to know through accurate media reporting.”
In the judgment summary, the full bench of judges remarked that “court
records by default should be open to the public—any departure and exception should be justified.”
The City of Cape Town had appealed the August 2014 High Court ruling,
which Judge Ashley Binns-Ward made in the course of litigation between the city
and the South African National Roads Agency (Sanral).
AmaBhungane joined a coalition of 11 civil society organisations that
intervened in the appeal as amici curiae (friends of the court) to highlight
the damage being done by Binns-Ward’s judgment.
The coalition said in its heads of argument to the appeal court: “The
[Binns-Ward judgment] 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.”
Access to court records has been crucial in a number of amaBhungane’s
The civil society coalition was represented by the
Legal Resources Centre and advocates Wim Trengove and Michael Bishop.
Here follows a statement issued by the civil society coalition:
Open Justice affirmed by the Supreme Court of AppealIn a ringing affirmation of the importance of open justice, the Supreme Court of
Appeal (SCA) today upheld the appeal of the City of Cape Town against a Western
Cape High Court judgment handed down last August.
The matter has
its genesis in the South African National Roads Agency (Sanral) asking the High
Court to order that some of its administrative documents remain confidential
during litigation brought by the City of Cape Town against Sanral’s plans to
toll major roads in the province.
The High Court
dismissed all of Sanral’s claims for confidentiality. However, it held
that there was a rule preventing the City of Cape Town from distributing the
documents that Sanral had been required to provide to the Court and the City of
It also held that, contrary to the uniform practice at the time,
members of the public or the media were not entitled to obtain copies of court
documents from the Registrar of the High Court.
The result was
to significantly decrease existing access to court documents, particularly in
challenges to the legality of government conduct. The City of Cape
Town appealed the judgment to the SCA.
society, academic and media groups joined together as amici curiae and advanced arguments promoting open justice and
The group included organisations that engage in litigation in
the public interest, and on whom restricted access to court documents would
have a dire impact.
The amici included Corruption Watch, the
Democratic Governance and Rights Unit, the Legal Resources Centre, the M&G
Centre for Investigative Journalism (amaBhungane), the Open Democracy Advice
Centre, the Right2Know Campaign, Section16, SECTION27, the Socio-Economic
Rights Institute, the South African History Archive, and the South African
National Editors’ Forum.
were represented by the Legal Resources Centre.
The SCA endorsed many of
the arguments advanced by the amici. It
recognised that the High Court’s judgment infringed the rights and principles
in the Constitution guaranteeing freedom of expression, access to information
and access to courts, and undermined the legitimacy and effectiveness of the
Ponnan JA, on behalf of the
SCA, stated that, “The animating principle therefore
has to be that all court records are, by default, public documents that are
open to public scrutiny at all times. … [A]ny departure is an exception and
must be justified.”
“Secrecy”, the SCA held, “is
the very antithesis of accountability. It prevents the public from knowing what
decision was made, why it was made, and whether it was justifiable.” It upheld
the City’s appeal and replaced the High Court judgment with an order dismissing
Sanral’s initial application for confidentiality.
Importantly, the Court also
affirmed that open justice is necessary to hold government to account and,
further, that the effectiveness of the court system requires such openness.
It held: “Thus where openness is most sorely needed – the
consideration of government conduct – the high court judgment limits openness
the most. The blanket of secrecy it throws over previously open proceedings
undermines the legitimacy and effectiveness of the courts.”
The SCA declared
that all documents filed in court are public documents, open for public view at
any time (unless specific legislation or a court orders otherwise) and that
there is no limitation on parties distributing court documents, particularly in
reviews of government conduct.
The amici welcome the SCA judgment as a
strong and necessary endorsement of the need for openness, not only in court
proceedings, but in all government activity. _ End of statement.
M&G Centre for Investigative Journalism (amaBhungane)
produced this story. All views are ours. See www.amabhungane.co.za
for our stories, activities and funding
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