On 8 October 2014 Judge Ashley Binns-Ward dismissed the City of Cape Town's (City) application for leave to appeal in respect of a judgment that he had handed down earlier and in which he prohibited the City from disclosing certain documents in the course of its litigation against the South African National Roads Agency Ltd (SANRAL). The case involved an application brought by the City for the judicial review and setting aside of the declaration of parts of the N1 and N2 national roads as toll roads in terms of s 27 of the South African National Roads Agency Limited Act.

SANRAL and the Protea Parkway Consortium (PPC), the preferred bidder for the toll road project, applied to the High Court for an order that portions of the papers filed by the City must be redacted so as to keep secret certain information which, SANRAL argued, should not be released in the public domain.

The information that SANRAL and PPC sought to redact had been provided to the City by SANRAL when the litigation began on the basis that access to the information had to be restricted to legal representatives, witnesses with whom the legal representatives had to consult and representatives of the parties to the litigation. All recipients of the information were required to sign confidentiality undertakings.

The information which SANRAL sought to keep confidential was separated into two categories. The first category related to information that SANRAL argued needed to be kept confidential only until after the filing of its answering affidavit in the review application. The second category related to information that SANRAL argued had to be kept confidential at all times during the legal proceedings, and thereafter.

Judge Ashley Binns-Ward dismissed the application brought by SANRAL and PPC and held that the relief the applicants sought was unnecessary, because the City was, in any event, prohibited from publishing or disseminating the documents it had obtained from SANRAL before the hearing of the review application, because of the combined effect of the implied undertaking rule and the provisions of Uniform Rule 62(7).

Uniform Rule 62(7) provides that "any party to a cause, and any person having a personal interest therein, with leave of the registrar on good cause shown, may at his office, examine and make copies of all documents in such case". In practice, members of the public have always been permitted to inspect court files at any stage of the proceedings and regardless of whether they had a personal interest in the case. However, Judge Binns-Ward ruled that only "parties to the litigation or those who have a personal interest therein" can access a court file. A personal interest means "something equivalent to a direct legal interest", not "mere curiosity".

With regard to the implied undertaking rule, Judge Binns-Ward accepted that it was clearly established in English and Canadian law that a legal representative who, in the course of discovery, obtains possession of copies of documents belonging to the other party gives an implied undertaking to the court not to use that material nor to allow it to be used for any purpose other than the proper conduct of the legal proceedings. Judge Binns-Ward, looking at the limited South African jurisprudence on the point, found that there was good reason to apply the implied undertaking rule in South African law.

Thus, the relief sought by SANRAL in respect of the material in the first category was found to be unnecessary and no purpose would be served by granting it, because any person who breaches the obligation imposed by the implied undertaking rule could be charged with contempt of court. The implication of this ruling is that members of the media are not permitted to have access to documents filed under compulsion in court until the matter is heard in court.

The judgment represents an unfortunate and retrogressive step in respect of facilitating the media's access to court documents. Prior to this judgment the practice had been that journalists could freely access documents once they were placed in the court file. Indeed in Independent Newspaper v Minister for Intelligence the Constitutional Court held that

"[f]rom the right to open justice flows the media’s right to gain access to, observe and report on, the administration of justice and the right to have access to papers and written arguments which are an integral part of court proceedings subject to such limitations as may be warranted on a case-by-case basis in order to ensure a fair trial".

The Constitutional Court judgment is in stark contrast to the position adopted by Judge Binns-Ward and, in our view, sets out the correct approach.

The City has been granted leave to appeal by the Supreme Court of Appeal, which is likely to hear the appeal next year.