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Court ruling puts public’s access to court documents in jeopardy

Franny Rabkin, writing in Business Day reports that, ” FOR years it was understood that in SA, unlike other countries, court documents were public documents. Journalists could queue at the registrar’s office, pick up a court file and look at everything in it. Lawyers also gave court documents to the media as a matter of course.

That has all changed now because of a problematic judgment from the Western Cape High Court. The judgment related to documents that found their way into a court file during a fight between the City of Cape Town and the South African National Roads Agency (Sanral) about the latter’s decision to toll portions of Cape Town’s highways.

Sanral wanted to keep some of the documents confidential — until such time as it had answered them; in other words until both sides of the story were before the court. It said that if the contents of the documents got into the public domain before it had answered them, it would “cause unjustified and unnecessary concern among the general public” and would result in “unjustified antagonism” towards Sanral.

But Judge Ashley Binns-Ward said in his judgment that Sanral’s application was unnecessary because rule 62(7) of the Uniform Rules of Court already permits the court to give court documents only to “parties to the litigation or those who have a personal interest therein”. A personal interest meant “something equivalent to a direct legal interest”, not “mere curiosity”, said the judge.

Rule 62(7) is well known. But it has, in practice, not been applied the way the judge interpreted it because that is widely viewed as unconstitutional — failing to strike the correct balance between open justice and other, competing, constitutional claims, including privacy. Some think a broader interpretation of the sub-rule would make it constitutionally acceptable. Others think it just needs to be scrapped. Either way it predates the constitution and we all assumed that when the rules board got around to fixing the rules, it would be reformulated to clearly strike the appropriate balance.

The judge went further: not only can a court registrar now be held in contempt of court for giving court documents to a journalist, the parties to the litigation are similarly prohibited — through an “implied undertaking” to the court not to do so. He said that while it was not entirely clear whether the implied undertaking law — well developed in England — was applicable in SA, “the time has come to hold unequivocally that the implied undertaking rule does form part of our law”.

Though opinion differs about how far the judgment goes, legal advice to newspapers is that journalists are now prohibited from inspecting High Court papers in the court file until the matter is heard, and that obtaining court papers unlawfully will make any publication of them illegal.

The media may now publish information from court papers in pending matters only with the consent of the owner. Failure to comply could lead to a finding of contempt.”

The Judge subsequently refused the applicants leave to appeal.

To read the full story visit the Busines Day Live website


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