Judicial activism can’t just flout the Constitution

Our Constitution envisaged that significant change to the legal system would be effected to ensure that the rules and principles that make it up should be congruent with the spirit and purpose of the Constitution.

Consequently, many observers suggest the appointment of “activist judges”. By this they mean judges who will ensure clear and sustained legal change. But judicial activism does not always provide the kind of change that the constitutional lobby demands.

The danger was highlighted recently in a case between the South African National Roads Agency (Sanral) and the City of Cape Town. In brief, Sanral approached the high court for an order that would require the city to redact its supplementary founding affidavit to ensure that certain information be kept secret, and that certain information and documents be placed in a confidential file and not be made available to public scrutiny until the hearing of a review, brought by the city, of decisions taken by Sanral to declare parts of the N1 and N2 as toll roads.

The court dismissed Sanral’s application on the basis that it had not shown the need to keep the documents it wanted protected from public disclosure confidential and it had not shown that it would be prejudiced if they were disclosed.

But the court held that the documents contained in the affidavit and its annexures were subject to an implied undertaking that no person would be permitted, unless authorised by Sanral or a court, to distribute, disseminate or reproduce the content of these documents before the hearing in respect of the review application.


This was a very far-reaching decision that, if upheld by the Supreme Court of Appeal, to which it was referred, would have significantly stifled reportage of matters palpably in the public interest. As Judge Visvanathan Ponnan, on behalf of a unanimous Bench of the appeal court remarked, one would have thought that this was the end of Sanral’s attempt to prevent public disclosure of documents relating to e-tolling. But, according to Ponnan, the high court, acting outside of the relief sought by Sanral in its notice of motion, decided the case in favour of Sanral.

Mercifully, Ponnan showed a keen and highly commendable understanding of the devastating potential of this judgment. Citing thinker Jeremy Bentham, he reminded the country that “publicity is the very soul of justice”. This principle had been embraced in an earlier decision of the Constitutional Court in Independent Newspapers vs Minister of Intelligence Services, which confirmed that the default position was that of openness, based upon a constitutional imperative to dispense justice in the open, a principle that the appeal court observed was undermined by the finding of the high court.

Ponnan dealt with the core of the high court’s reasoning, that of an implied undertaking. This rule holds that a party to whom a document has been disclosed pursuant to litigation may use the document only for the purposes of the legal proceedings in terms of which it has been disclosed.

But that rule has never been part of South African law, and has only been discussed in a South African court three times. Even during the dark days of apartheid, judges did not seek to incorporate this rule in our law.

The high court had seemingly been captivated by the use of the implied undertaking rule in Australia and Canada. On the use of comparative law, Ponnan sounded a warning: “A court attempting to transplant a rule from a foreign jurisdiction should of necessity have regard to the differing constitutional contexts between that country and this.”

Courts, in other words, should be reluctant to engage on a legal Cook’s Tour of comparative law to borrow concepts according to judicial fancy, and without a rigorous examination of whether they are congruent with our legal system in general and the Constitution in particular.

One of the fundamental principles of our constitutionally shaped legal system is that of accountability. Had the high court’s ruling been upheld, it would have promoted the very antithesis of accountability: increased secrecy. Citing United States Supreme Court Justice Louis Brandeis, Ponnan said: “Sunlight is the best of disinfectants; electric light the most efficient policeman.”

The welcome rejection of the high court’s activist attempt to develop an implied undertaking rule in this country has restored a vital principle of our law: all court records are, by default, public documents that are open to public scrutiny at all times. There may be exceptions – the interests of children, state security and even commercial confidentiality – but, in each such case, there must be a clear justification for deviating from the default position.

The appeal court judgment was based on a sound understanding of the boundaries set for judges by the Constitution. The high court judgment was a clear example of judicial activism that took too little account of these constraints. The take-home point is this: judicial activism is not always good for our constitutional development.

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