Supreme Court allows City of Cape Town to reveal Sanral's e-tolling secrets

The Supreme Court of Appeal has ruled that court files are open to the public. This follows an attempt by the SA National Roads Agency, in its court battle over e-tolling with the City of Cape Town, to keep certain information hidden from the public view. This lays to rest long-standing uncertainties as to which court information is available to the public. 

Following the SCA ruling, the City of Cape Town wasted no time revealing Sanral's e-tolling secrets, in particular how Sanral’s awarding of the tender for the N1 and N2 Toll Highway Project to the Protea Parkways Consortium (PPC) will affect residents of the Western Cape and visitors to the region.

According to Media 24, this is what the City of Cape Town says Sanral wanted to hide:

- Should the tolling of the N1 and N2 freeways go ahead, residents from the Western Cape and visitors to this region will pay toll tariffs nearly three times those of the e-toll tariffs being charged by the new Gauteng Freeway Improvement Project (GFIP);

- PPC’s anticipated toll revenue over the concession period (2010 values, excluding VAT) is in the region of R48bn;

- The decision to declare the Winelands toll roads was taken by Sanral CEO Nazir Alli and not by the Sanral board, as required by the Sanral Act;

- Sanral failed to disclose the grave consequences of the reimbursement clause in its concession contract with PPC to the Sanral board and the transport minister. The contract addresses the risk that the minister may determine lower toll tariffs than the concessionaire is entitled to charge under the concession contract, or may refuse or delay approving a change in the toll tariffs.

According to Business Day, the Supreme Court of Appeal has laid to rest uncertainty about access to filed court papers by ruling the public can view documents except in instances where there is a good reason for a restriction to be imposed.

The judgment — which was delivered on Monday and was the result of a preliminary skirmish over documents in a dispute over tolling plans for Cape Town — has cleared the way for the City of Cape Town to make public information that the South African National Roads Agency (Sanral) was trying to keep under wraps.

The judgment clarifies uncertainty created by Western Cape High Court Judge Ashley Binns-Ward, who said only parties to a case, or those with a direct interest in it, could have access to a court file.

The High Court judgment, which was heavily criticised by the media and public interest advocacy groups, also prohibited parties to a case from making documents available to the public unless the documents’ owner or the court had consented — based on an "implied undertaking".

On behalf of a unanimous bench of five, Supreme Court of Appeal Justice Nathan Ponnan said the "animating principle" was that court records were "by default, public documents that are open to public scrutiny at all times".

There may be situations justifying a departure from the default position, such as the interests of children, state security and even commercial confidentiality, he said.

But any departure was "an exception and must be justified".

In particular, the appeal court determined the proper interpretation of Uniform Rule of Court 62(7), which says "any party to a cause, and any person having a personal interest therein" can look at, and copy, a court file at the Registrar’s office.

Justice Ponnan said the rule could be constitutional only if it was read to allow anyone interested in a case to look at a court file.

The "implied undertaking" rule, which in other countries allowed parties to use documents only in litigation for the purpose of the case, was not part of South African law.

Justice Ponnan also traced the history and development of the principle of open courts.

In SA the principle was constitutionally entrenched, he said.

It followed "axiomatically" that the public must have access to the papers and documents that were an integral part of court proceedings.

He repeated the Constitutional Court’s view that the media had a duty to report accurately, and said it could not do so without access to information. "When justice is open, court reporting is a crucial avenue for public knowledge."

He said the litigation process was designed to limit the extent to which different sides could "craft and shape" information for public consumption. "In an environment of secrecy, journalists become vulnerable to off-the-record briefings and strategic leaks."

Justice Ponnan said when Judge Binns-Ward had adopted the implied undertaking rule, he had not considered the spirit and objects of the Bill of Rights.