Success for OPBP and the LRC as the South African Supreme Court of Appeal delivers a resounding affirmation of the principle of open justice
The unanimous decision handed down on 30 March 2015 by the South African Supreme Court of Appeal in City of Cape Town v South African National Roads Authority Limited & others (20786/14)  ZASCA 58 represents a resounding affirmation of the importance of open justice.
Oxford Pro Bono Publico (OPBP) assisted the Legal Resources Centre, South Africa, in preparation for their submission to the Supreme Court of Appeal in this ground-breaking case by undertaking comparative research on public access to court documents. OPBP’s team of graduate researchers, under the supervision of Professor Sandra Fredman, analysed and compared the legal positions regarding access to, and distribution of, court documents in eleven jurisdictions. Drawing on OPBP’s research, the Legal Resources Centre, representing numerous civil society, academic and media groups intervening as amici curiae, successfully argued that the High Court’s judgment was inconsistent with the principle of open justice.
Ponnan JA, writing on behalf of the Supreme Court of Appeal, warned that ‘[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’ (paragraph 31). He accordingly rejected the High Court’s importation of the ‘implied undertaking rule’ into South African law because its restrictive approach to regulating public access to, and distribution of, court documents ‘endangers a range of overlapping and inter-related constitutional rights’ (paragraph 17) and undermines the legitimacy and effectiveness of the judiciary. In view of these rights and interests that serve as the rationale for open justice, Ponnan JA declared that ‘[t]he animating principle therefore has to be that all court records are, by default, public documents that are open to public scrutiny at all times’ (paragraph 47) and insisted that any departure from this default rule is to be considered exceptional and must be justified with reference to strong overriding interests.
Image source: Scatter Beams.