STATEMENT: SANRAL “CONFIDENTIAL” COURT CASE – what are they hiding?

Issued by Section 16 and the Right2Know Campaign

The Right2Know Campaign and Section 16 seek to intervene urgently in a secrecy application brought by SANRAL and Protea Parkways Consortium (PPC) to have certain court documents and parts of the court hearings kept secret from the public and the media. The secrecy application will be heard by the Court on 4 August 2014.

The dispute relates to the proposed tolling of the N1 and N2 highways, including the tariffs applicable and details of the funds paid to the operator and that the basis of such secrecy is “commercial confidentiality”.

The Western Cape High Court has ordered that the court papers in the secrecy application be temporarily sealed until it has heard and decided on SANRAL and PPC’s claim to secrecy. However, the public has been denied access to all the court papers, unless we sign a confidentiality agreement, and not only those documents where ‘confidentiality’ is claimed. Our concern is that the degree of secrecy that is being imposed is greater than is necessary to protect any confidentiality interests at stake, if any.

Withholding this information undermines the values of open justice and stifles reasoned public debate about a matter of significant public interest. Our efforts to make submissions as a friend of the court in respect of the merits of the secrecy claims have also been severely hindered by the unconstitutional sealing of the entire court record.

We demanded that the parties agree to the disclosure of those parts of the court record in respect of which there is no claim of confidentiality, alternatively that the presiding judge be approached for directions on the procedure going forward.

The City of Cape Town agrees that that a sealing of the entire record and excluding the public from all the hearings is unnecessary and unjustifiable. The City is also a party to the main court case. We understand that there are no objections to our being admitted as friends of the court but SANRAL are still objecting to release of even redacted papers. We welcome proposals from the parties that the Judge be asked for directions – but should that not succeed in getting disclosure before the hearing we will have no choice but to launch a court application for disclosure of the record.

• Section 16 is a non-profit and non-governmental voluntary association whose objectives include defending, prosecuting or intervening in cases relating to freedom of expression and access to information violations and to advocate for law reform in respect of freedom of expression and access to information related issues.