Historically the position was that one was not allowed to gain access to court documents until the matter had been called in open court. Is this still the position? On 30 March 2015 the Supreme Court of Appeal in Bloemfontein (SCA) ruled in favour of the City of Cape Town by setting aside the Western Cape High Court decision in regard to an application brought by the South African National Roads Agency Limited (SANRAL).
The matter essentially involved access to court records and whether such records should be made open to the public. The SCA’s ruling can be seen as a triumph for transparency and accountability. More importantly, the SCA’s ruling supports the constitutionally entrenched right to access to information.
You may recall the principle of ‘open justice’ which principally turns on the premise that all pleadings and documents filed during the course of proceedings are deemed to be 'public documents' only once that matter is called in open court.
Rule 62(7) of the Uniform Rules of Court states that, "Any party to a cause, and any person having a personal interest therein, with leave of the register on good cause shown, may at his office, examine and make copies of all documents in such cause." The high court said that Rule 62(7) regulates access to such information and ‘provides an important administrative basis to support the implied undertaking rule’. The High Court was further of the view that, according to Rule 62(7), ‘public access to the content of the court file in litigious proceedings is permissible only after the matter has been called in open court’. The SCA held that the insofar as both of these issues is concerned, the high court appears to have gone beyond that which it had been asked to judge.
The SCA’s ruling redefined the principles of 'open justice' and the interpretation of Rule 62(7) by saying the view of the high court that, ‘public access to the content of the court file in litigious proceedings is permissible only after the matter has been called in open court’, must fail. The SCA went on to say that the high court did not give Rule 62(7) a comprehensive constitutional interpretation. Significantly, “personal interest” should, in a constitutional context, mean, ‘any person who is personally interested’ in the case. In other words, the SCA held that Rule 62(7) is clearly capable of referring, as the other rules do, simply to ‘any person’ and a ‘direct legal interest’ is not necessary.
What does this all mean?
Crisply put, as soon as a document has been filed in court, it becomes a public document. In other words, the public will have the right to examine and copy the document. The principle of ‘open justice’ is, consequently, ignited as soon as the documents are filed in court.