STATEMENT: SANRAL judgement may restrict access to information

Issued by Right2Know Campaign, 29 August 2014

In a strange twist the Western Cape High Court dismissed SANRAL’s application to keep the documents and proceedings concerning the proposed tolling of the N1 and N2 in the province secret, but explained that the court rules mean that the file is not open to the public anyway.

The Right2Know Campaign and Section 16 entered this matter as friends of the Court to assert that that the general public has a strong interest in the documents and in making input into the decision on whether tolling of the national roads in the province takes place.

SANRAL was actually unable to convince the Court that the disclosure of all or some of the documents would be prejudicial to it.

But the court took another approach in coming to its decision. The Court determined that the documents remain sealed until such time as they are presented in open court in main review proceedings which have yet to be scheduled. This is because of a rule called the ‘implied undertaking’ rule. This means that, until documents are presented in open court, no journalist or other interested party can access the documents, except on a formal application to court.

The current practice is that anyone can go and get the legal documents in a case from the court file. It has been assumed that these documents are public. This judgement says they are not public, until the matter is disposed of. The judge has told the registrar not to let anyone see the court files, which they previously could see.

This will severely restrict the ability of the media to report on this matter, or for a public debate on the issue to be held. Given that the Court has already determined that the documents contain information that could reasonably justify keeping them secret, this restriction is unnecessary and not at all in keeping with our Constitution.

It is therefore with grave concern that we note that through its interpretation of the court rules, the Court has in effect extended the rules relating to the confidentiality of Court papers beyond what is current practice, and has placed an unnecessary restriction on the access of interested parties to them. It will severely restrict our ability to report on all reviews of public action.

We call again upon the independent media, and the public to join us in demanding greater access to the information and the process.

We say no to the precedent that courts can withhold all information from the public;
We say No private proceedings involving public funds!
We say, lift the veil of secrecy on tolls! No secret court hearings, no secret court papers!
We demand that all public bodies account to the public!