City to approach Supreme Court of Appeal for relief in SANRAL secrecy matter

Following the dismissal of the City of Cape Town's application for leave to appeal in the Western Cape High Court, the City will immediately petition the Supreme Court of Appeal. Read more below:

This morning, 10 October 2014, Judge Ashley Binns-Ward of the Western Cape High Court dismissed the City's application for leave to appeal against his judgment delivered on 28 August 2014.

The application was dismissed on a procedural aspect and not on substantive issues and the City will immediately be petitioning the Supreme Court of Appeal for leave to appeal. To quote from paragraph 19 of the judgment that was delivered on 8 October 2014, the judge stated: ‘...if it had not been for the effect of section 17(1)(c) (of the Superior Courts Act 10 of 2013) I would, on balance, have inclined in favour of granting leave to appeal...'.

Section 17(1)(c) of the Superior Courts Act provides that leave to appeal may only be given ‘where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties'.

Judge Binns-Ward referred to the ‘real issues in the case' as being the legality of the decision to declare toll roads, and found that an appeal of his judgment in the secrecy application would not lead to a resolution of the issues in that case. Of course, we disagree.

In the City's opinion, the ‘case' should refer to the case in which the judgment sought to be appealed was made, i.e. the secrecy application. Any appeal in that case would dispose of real issues, if not all the issues.

Dealing with the judgment delivered by Judge Binns-Ward on 28 August 2014, the City also wishes to address flagrant inaccuracies about this judgment contained in an opinion piece by Mr Vusi Mona, head of SANRAL's communication department, printed in the Argus of Wednesday 8 October 2014.

Mr Mona indicates that SANRAL will make full disclosure of the information pertaining to the Winelands toll tender once the final tenders have been awarded. In fact Judge Binns-Ward agreed with the City that the competitive phase of the tender ended once the Protea Parkways Consortium was selected as the Preferred Tender.

What Mr Mona means is that SANRAL will only disclose this information after it has signed a concession contract when it is too late to change the essential aspects of the tender contracts, such as the scope of the upgrades, the toll fees, and the profit margin. In any event, SANRAL has been interdicted by the City from concluding the tender contract, pending the outcome of the review application.

SANRAL also fails to mention in the opinion piece that they were unsuccessful in proving to the court that any of the information they are seeking to keep from the public is in fact confidential. In this regard the following passages from the judgment are informative: [67], [70], [73] [74] [78]:

‘It is not apparent to me that the disclosure of the bid documentation would have the effects contended for by SANRAL.... In the context of the indication that the competitive phase of the tender contract has been completed, I am also not persuaded that there is any cogency in SANRAL's allegation that material bearing on the evaluation of the bids should be kept secret....SANRAL claimed in ....unsubstantiated terms that third party proprietary information would be prejudiced were the .... relief sought by it not granted....SANRAL contended ... that disclosure of the information ... would result in a breach of its obligations in terms of a number of statutory instruments.... These claims, advisedly, where not persisted in at the hearing....I have not been persuaded on my perusal of the documents concerned that their content substantiates a claim to confidentiality.'

The reason the court nevertheless held that only parties to the proceedings should have access to such information at this time, was based on a specific interpretation of the common law and reference to a procedural rule of court. It is these aspects that the City is seeking to challenge on appeal.

If SANRAL is indeed committed to transparency, it would not continue in its efforts to keep the information, which is not confidential, from the public - based solely on a novel interpretation of the procedural requirements relating to disclosure of documents filed as part of litigation proceedings.

Statement issued by Councillor Brett Herron, Mayoral Committee Member: Transport for Cape Town, City of Cape Town, October 10 2014

Click here to sign up to receive our free daily headline email newsletter