Constitutional law — Constitution — Foundational values — Rule of law — Open justice —

Court records by default open to public — Departure from rule permissible only where justified by exceptional circumstances

— ‘Implied undertaking rule’, viz that party to whom documents disclosed may not make collateral use of them, inconsistent with open justice rule — Hence not part of South African law.
Discovery and inspection — Production of documents — Implied undertaking rule — Party to whom documents disclosed will not use them for collateral or ulterior purpose — Rule inconsistent with constitutional principle of open justice and hence not part of South African law.

Sanral (the state road authority) and the City of Cape Town were involved in a legal battle about the future tolling of certain Western Cape roads. When the city applied for a rule 53 review of Sanral’s decision to award a road-construction tender, Sanral sought to suppress publication of part of the record on the ground that it was ‘confidential’. When the City objected, citing public interest in the matter, Sanral approached the Western Cape Division, Cape Town, for an interdict barring the City from publishing the ‘confidential’ information. The High Court found that while Sanral failed to establish confidentiality, publication of the record was nonetheless barred by the ‘implied undertaking rule’. The rule — which the High Court said was part of South African law and aimed at the protection of the right to privacy — prohibited parties from using discovered documents for ‘collateral’ purposes (ie for the purposes other than the litigation in question). The High Court also relied on rule 62(7), which it said buttressed the implied undertaking rule by requiring a direct legal interest in the case for access to the record to be granted. The result was that the record was closed pending the hearing of the review application. In an appeal the SCA —
Held: The principle of open justice — that courts must be open to the public — was venerable and constitutionally entrenched. Openness, not secrecy, was the default position under the Constitution, and deviations from the norm had to be justified. Since the right to open justice axiomatically included the right of access to court files, the implied undertaking rule was unconstitutional and not part of South African law. Hence it could not be used to bar access to the rule 53 record. The High Court’s invocation of a privacy interest on the part of a public body like Sanral was, moreover, problematic. Rule 62(7), which was a technical provision not intended to curtail substantive rights, likewise had to be read in conformity with the principle of open justice so as to allow anyone interested in the case access to the court file. The High Court’s use of the implied undertaking rule and rule 62(7) to effectively seal the rule 53 record was inconsistent with the principle of open justice and could not be endorsed, particularly in view of the fundamental importance of public accountability in the present proceedings. Appeal upheld and Sanral’s application dismissed.