02 December 2023 | 08:22 AM

Advocacy: Victory for open justice

Victory for open justice

Key Takeaways

The Supreme Court of Appeal (SCA) on Monday struck down a Western Cape High Courtjudgment that limited media and public access to court records countrywide.

AmaBhungane, which had joined the court proceedings as part of a civilsociety coalition, welcomed the judgment. Karabo Rajuili, its advocacy co-ordinator,said: “This is a huge victoryfor open justice and the public’s right to know through accurate media reporting.”

In the judgment summary, the full bench of judges remarked that “courtrecords by default should be open to the public — any departure and exception should be justified.”

The City of Cape Town had appealed the August 2014 High Court ruling,which Judge Ashley Binns-Ward made in the course of litigation between the cityand the South African National Roads Agency (Sanral).

AmaBhungane joined a coalition of 11 civil society organisations thatintervened in the appeal as amici curiae (friends of the court) to highlightthe damage being done by Binns-Ward’s judgment.

The coalition said in its heads of argument to the appeal court: “The[Binns-Ward judgment] substantially reduces current access to records of theHigh Court, threatens the freedom of the media, curtails the work of publicinterest organisations and undermines the independence of the judiciary.”

Access to court records has been crucial in a number of amaBhungane’sinvestigative stories.

The civil society coalition was represented by theLegal Resources Centre and advocates Wim Trengove and Michael Bishop.

Here follows a statement issued by the civil society coalition:

Open Justice affirmed by the Supreme Court of Appeal
In a ringing affirmation of the importance of open justice, the Supreme Court ofAppeal (SCA) today upheld the appeal of the City of Cape Town against a WesternCape High Court judgment handed down last August.

The matter hasits genesis in the South African National Roads Agency (Sanral) asking the HighCourt to order that some of its administrative documents remain confidentialduring litigation brought by the City of Cape Town against Sanral’s plans totoll major roads in the province.

The High Courtdismissed all of Sanral’s claims for confidentiality. However, it heldthat there was a rule preventing the City of Cape Town from distributing thedocuments that Sanral had been required to provide to the Court and the City ofCape Town.

It also held that, contrary to the uniform practice at the time,members of the public or the media were not entitled to obtain copies of courtdocuments from the Registrar of the High Court.

The result wasto significantly decrease existing access to court documents, particularly inchallenges to the legality of government conduct. The City of CapeTown appealed the judgment to the SCA.

Eleven civilsociety, academic and media groups joined together as amici curiae and advanced arguments promoting open justice andaccountability.

The group included organisations that engage in litigation inthe public interest, and on whom restricted access to court documents wouldhave a dire impact.

The amici included Corruption Watch, theDemocratic Governance and Rights Unit, the Legal Resources Centre, the M&GCentre for Investigative Journalism (amaBhungane), the Open Democracy AdviceCentre, the Right2Know Campaign, Section16, SECTION27, the Socio-EconomicRights Institute, the South African History Archive, and the South AfricanNational Editors’ Forum.

The amiciwere represented by the Legal Resources Centre.

The SCA endorsed many ofthe arguments advanced by the amici. Itrecognised that the High Court’s judgment infringed the rights and principlesin the Constitution guaranteeing freedom of expression, access to informationand access to courts, and undermined the legitimacy and effectiveness of thejudiciary.

Ponnan JA, on behalf of theSCA, stated that, “The animating principle thereforehas to be that all court records are, by default, public documents that areopen to public scrutiny at all times. … [A]ny departure is an exception andmust be justified.”

“Secrecy”, the SCA held, “isthe very antithesis of accountability. It prevents the public from knowing whatdecision was made, why it was made, and whether it was justifiable.” It upheldthe City’s appeal and replaced the High Court judgment with an order dismissingSanral’s initial application for confidentiality.

Importantly, the Court alsoaffirmed that open justice is necessary to hold government to account and,further, that the effectiveness of the court system requires such openness.

It held: “Thus where openness is most sorely needed – theconsideration of government conduct – the high court judgment limits opennessthe most. The blanket of secrecy it throws over previously open proceedingsundermines the legitimacy and effectiveness of the courts.”

The SCA declaredthat all documents filed in court are public documents, open for public view atany time (unless specific legislation or a court orders otherwise) and thatthere is no limitation on parties distributing court documents, particularly inreviews of government conduct.

The amici welcome the SCA judgment as astrong and necessary endorsement of the need for openness, not only in courtproceedings, but in all government activity. _ End of statement.

TheM&G Centre for Investigative Journalism (amaBhungane)produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and fundingsources.

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Before joining the amaBhungane team in 2017, Micah was the national coordinator for media freedom and diversity at the Right2Know Campaign. He holds a Masters in African Studies from Oxford University and a BA Honours in History from Wits University.

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