Ledwaba misapplied Rule 62(7): Was CR17 unlawfully sealed?

The principle of open justice lies at the heart of any democratic judiciary. It is enshrined in both the Constitution and the Uniform Rules of Court, which guarantee public access to court records and proceedings. Yet, in the now-infamous CR17 matter, Deputy Judge President Aubrey Ledwaba's decision to seal President Cyril Ramaphosa's donor bank statements appears to have turned this foundational principle upside down.

At the core of the controversy is Rule 62(7) of the Uniform Rules of Court. The rule is explicit: court documents are open for inspection by any interested person. It was designed to safeguard transparency, accountability, and public confidence in the administration of justice - not to justify secrecy.

Ledwaba's interpretation, however, did precisely the opposite. By unilaterally sealing the CR17 records, he effectively treated open justice as the exception, not the rule. The move was made without a formal application, without a hearing, and without reasons publicly delivered, making it more of an administrative act than a judicial ruling. This not only violated the procedural fairness owed under the Constitution but also eroded the public's right to know.

The Constitutional Court, in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (2008), set a clear precedent: court records are presumptively open to the public, and any restriction must be justified by compelling and narrowly tailored reasons. The onus is on the party seeking secrecy - not the public - to demonstrate why access should be denied.

Ledwaba's approach inverted that logic. By sealing the CR17 records without cause and then placing the burden on the public to apply for access, he effectively reversed the presumption of openness. His subsequent directive - that any application for access be made before him personally - only compounded the impropriety. It meant that the same judge who made the impugned decision would preside over its review, a clear conflict of interest that violates the most basic standard of judicial impartiality.

This conflation of roles - being both author and arbiter of a contested act - is not merely a technical flaw; it is a constitutional one. It undermines public confidence in the judiciary and casts doubt on whether justice can be seen to be done when procedural propriety is compromised in politically sensitive matters.

The question, then, is unavoidable: was the CR17 sealing lawful at all? If the decision lacked both a judicial basis and procedural compliance, it cannot stand as valid in law. The sealing of those records, therefore, appears to have been ultra vires - beyond the authority of the Deputy Judge President.

The judiciary's legitimacy rests on openness, fairness, and accountability. Any deviation from these principles must be exceptional and rigorously justified. In the CR17 saga, that standard was not met. The public deserves clarity, not secrecy; the law demands process, not presumption.

Until these fundamental issues are addressed, the question of whether the CR17 records were lawfully sealed will remain a stain on the principle of open justice - and a reminder of how fragile transparency can be when discretion replaces due process.