In City of Cape Town v South African National Roads Authority Limited and Others (20786/14) [2015] ZASCA 58, the Supreme Court of Appeal considered an appeal against a judgment to the effect that the publication of informationcontained in review proceedings was prohibited until the review came before court. The City of Cape Town brought an application for the review of SANRAL’s decision to award a tender to Protea Parkways Consortium as the preferred bidder and Overberg Consortium as the reserve bidder for the N1 / N2 Winelands Paarl Highway Toll Project. Consequently, the Western Cape High Court ruled that the record of the documents that formed the basis for the decision could not be distributed or published before the matter was heard by a judge.

On appeal, the SCA held that the principles of open justice and an open court had been part of South African law since the 18^th century. The principles were now entrenched in section 34 of the Constitution, dealing with access to courts. The publicity of a trial guaranteed that a matter would be determined independently and impartially; the glare of public scrutiny made it far less likely that courts would act unfairly. Furthermore, the SCA held that litigants were prejudiced when their proceedings were not held in public. The courts were open to protect those who used the institution and to secure the legitimacy of the judiciary. Without openness, the judiciary lost the legitimacy and independence it required to perform its function. Accordingly, court proceedings had to be open unless a court ordered otherwise and departures from such principle should only be permissible when the dangers of openness outweighed the benefits. This meant, too, that the public had the right of access to court papers and written arguments. The right to freedom of expression lay at the heart of democracy, observed the SCA. Such a right was not limited to the right to speak, but also to receive or impart information and ideas, meaning that the media held a key position in society. There was a strong default position in South African law against prior restraints on the publication of court proceedings. The SCA held that it was an overriding principle that all court records were, by default, public documents that were open to public scrutiny at all times. Any departure would be an exception and would have to be justified. In the circumstances, the SCA upheld the appeal with costs.