CONTROVERSIAL proposed toll roads into Cape Town will cost motorists nearly three times what they now pay to use Gauteng’s discredited e-toll system.

These figures were released today by the City of Cape Town, following a judgment by the Supreme Court of Appeal, handed down this morning. The judgment paved the way for information, kept under wraps by the South African National Roads Authority, to be made public for the first time.

As a result of the judgment the City disclosed for the first time that the new project would result in revenue to the company that won the tender, Protea Parkways Consortium, of an estimated R48 billion, as at 2013. In addition, the City says that the decision to declare the Winelands toll roads was taken by Sanral’s CEO, Nazir Alli, and not by the Sanral board, as required by law.

Calling the appeal court’s decision a victory for transparency and accountability as well as the constitutionally enshrined right of access to information, the City said the negative macro-economic impact on the region had not been considered before the decision was taken to toll the N1 and N2 freeways. In addition, there had not been consideration as to whether low income groups would be able to use these roads if the toll was instituted.

The City is challenging the toll decision in court later this year, but had not been able to make public the reasons for its disquiet up to now because Sanral insisted that key elements of the project related to costing for example not be made available.

In its unanimous judgment released this morning the appeal court said that the high court had been incorrect to interpret a long-standing court rule to mean that material filed with the registrar was out of bounds to the media and the public unless special permission was granted. This interpretation of the rule had meant that the City was unable to make public information about the planned toll that Sanral wanted kept under wraps.

The appeal court also found that a rule the high court had purported to import into South African law was not in fact part of our law and could not be used to prevent the Sanral information from being made public.

Lawyers, journalists, academics and the public had all been greatly hampered in their work by the high court’s interpretation of these two rules, and a group of 11 organisations backed the city when it appealed against the high court decision.

Today’s judgment begins, ‘This appeal raises matters of the greatest public importance’. It says that when it imported the English rule into South African law and when it reinterpreted the existing rule about access to court files, the high court ‘impermissibly’ dealt with matters that it had not been asked to adjudicate. The judge had done so, despite a warning by the Constitutional Court ‘against overzealous judicial reform’.

The ‘open court principle’ was internationally recognised as vital. While litigants sometimes wanted to keep their litigation private, this was only allowed for good reasons. The court said it would be ‘a dangerous thing’ for all litigants if court documents, as a general rule, were ‘inaccessible and unpublishable’

‘When justice is open, court reporting is a crucial avenue for public knowledge about what the government does. It is particularly important where the government is one of the parties in a case and where other sources of information are limited.’

Not all information was ‘readily revealed’ by the state, and ‘even powerful media organisations’ sometimes faced great difficulty in obtaining information in some area. Against this background, the Constitutional Court had confirmed that the ‘default position’ was one of openness.

The court said it made no sense that someone could obtain information through the Promotion of Access to Information Act, without restriction on how that information could be used, and with no curb on the further distribution of that information. By contrast, the high court judgment had the effect of preventing that same information from being lawfully available from the courts before a case was heard.

The high court’s decision was inconsistent with the constitution. It severely limited the basic principle of open justice as well as that of the right to public hearings, freedom of expression and access to information.

Moreover it arrived at this conclusion via a ‘contrived textual interpretation’. It set the high court apart, with ‘far more restrictive rules of access than any other superior court’, and it should be rejected.

It was vital that the public be able to follow court proceedings and it could not do so if documents that would explain the matter were unavailable beforehand.

The high court’s decision also had to be rejected because of the constitutional commitment to accountability. ‘Secrecy is the very antithesis of accountability’, said the appeal judges. ‘It is a matter of fundamental importance to the administration of justice that members of the public, who are directly affected by the controversial issue of tolling, be allowed access to all of the arguments, the court records and the hearing of the review. The controversy would deepen if Sanral were to ultimately succeed in having the review application dismissed after a partially secret hearing. That would not serve the public interest or the interests of justice.’

If the high court judgment was allowed to stand it would mean that court challenges to government action would be less open than they currently are.

‘Thus where openness is most sorely needed – the consideration of government conduct – the high court judgment limits openness the most. The blanket of secrecy it throws over previously open proceedings undermines the legitimacy and effectiveness of the courts.’

The appeal judges therefore upheld the City’s appeal, set aside the judgment of the high court, and awarded costs against Sanral in both courts.

City of Cape town v Sanral