Open justice – access to courts and tribunals

Open justice is a fundamental right

In a democratic society, justice must not only be done but must be seen to be done. The right of the public to scrutinise and understand the workings of the law is a key principle of our constitutional framework. Transparency and accountability build trust and confidence in the justice system. This is known as “open justice”, and it secures the public’s right to access court proceedings. Open justice reflects the intertwining of various constitutional rights, including freedom of expression and the right to a public trial.

Access to courts and court reporting

Court proceedings are generally open to the public, though judges have the discretion to impose restrictions in exceptional circumstances. Various legislative frameworks, including the Superior Courts Act and the Magistrates’ Court Act, reinforce this rule. Members of the public can sit in the gallery to observe proceedings, provided they adhere to court rules (e.g., maintaining silence, no disruptive behaviour, and obeying instructions from court officials). 

Public access may be restricted by judicial discretion in criminal cases for reasons such as national security, public order, and the administration of justice. Certain categories of cases may be heard in closed proceedings unless public access is specifically granted. Matters involving minors, such as cases under the Children’s Act or criminal cases involving child offenders or victims, are generally held “in camera” (in private) to protect the interests of the child. Cases involving sexual offences may be closed to the public to protect the privacy and dignity of the complainant or survivor.

The Constitutional Court welcomes visitors. All hearings are open to the public and there is no entry fee to the ConCourt building.

Courts have discretion to permit or deny media access, emphasising the balance between public interest and individual privacy. 

Reporting restrictions

The identities of children involved in legal proceedings may not be disclosed. The law also protects the identities of survivors of sexual offences. Courts have the discretion to determine any exceptions.

Restrictions also apply to reporting the identities of accused persons and sensitive information that may prejudice ongoing trials. Specific provisions govern the publication of details related to sexual offences.

Tribunals and inquiries

The principle of open justice extends to various tribunals and inquiries, such as the Truth and Reconciliation Commission and others set up by the government. The public’s right to access these proceedings is crucial for maintaining transparency.

Broadcasting court and tribunal proceedings

Technological advancements have prompted discussions regarding the broadcasting of court proceedings. While traditional print media have established practices, the emergence of radio and television broadcasts has led to legal challenges. Courts have occasionally permitted audio and video recordings, balancing the need for transparency with the rights of the parties involved.

Access to court documents

In general, court documents are in the public domain once a case is initiated, unless specific restrictions are justified. Court documents must be accessible to promote informed public discourse.

However, the media’s access to court documents prior to a case being heard remains contentious, and the circumstances under which documents can be accessed remain legally ambiguous. Even classified documents must be assessed for public access by the courts, highlighting the judiciary’s authority to determine transparency despite executive classifications.

Getting the balance right

The right to open justice is a fundamental feature of a functioning democracy. But we also have a right to privacy in South Africa, which can mean there are legitimate grounds for restrictions. As with all our rights, there is a balance to maintain between protecting individual rights and ensuring sufficient access to benefit public interest.

Seek professional legal advice

You don’t need a lawyer to observe the court in action. Anyone can sit in the public gallery. But if you have any concerns about access to information, privacy, whistleblowing, or any other rights issues, contact Simon Dippenaar and Associates Inc., in Cape Town, Johannesburg, or Durban. We will ensure your right to confidentiality is upheld. Contact Simon today on 086 099 5146 or email sdippenaar@sdlaw.co.za. 

Further reading:

• Protection of sources: safeguarding journalistic integrity
• Access to information
• Understanding the right to privacy

SD Law

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