One of South Africa’s most prestigious and expensive schools, Michaelhouse, has succeeded in sealing a court file detailing “serious allegations” against some of its pupils, either as perpetrators or victims, which resulted in the expulsion of one pupil.
While the parents of the expelled boy sought only to have names redacted or pseudonyms used, the school argued this did not go far enough and the rights and dignities of the pupils involved were at stake.
This more so because the school community was tight-knit, and even using initials or, for example, “minor one” would expose them.
According to a judgment handed down recently by Pietermaritzburg high court acting judge Mvuso Notyesi, the parents of the expelled boy approached the court to review a decision by the school to expel him after a probe into “highly sensitive acts of serious misconduct” by advocate David Saks.
The judge said the acts implicated several minor children as victims and perpetrators.
The parties are in agreement there ought to be measures of confidentiality
— Pietermaritzburg high court acting judge Mvuso Notyesi
The parents, in an urgent interlocutory application before the review, asked for the identities of the minor children to be withheld.
The interim order recorded the matter would be heard in open court, but the parents only be identified by their initials, the names of pupils be redacted and only be referred to as “minor one, minor two and so on” and the annexures be kept in a confidential bundle only available to the presiding judge and the parties’ legal representatives.
The order was taken without notice to the school.
When it came back to court to be finalised, the school filed a counter application, asking for the entire court file to be declared confidential and sealed.
“The parties are in agreement there ought to be measures of confidentiality. The difference is the extent of that,” judge Notyesi said.
Referring to the law, the judge said court proceedings, by default, should be open to the public, including court documents, unless there were exceptions.
However, he said, the court had discretion.
“This court is acutely aware that the principle of open courts dates back centuries and has been incorporated into our constitution.
“There is always a suspicion of prejudice regarding proceedings that are conducted behind closed doors. They carry a threat to the rule of law,” the judge said.
The parents' case was straightforward: Their advocate, Spicko Dickson, contended there was no basis to seal the file. The interim order sufficiently protected the identities of the minor children.
If the file were sealed, it would amount to an absolute limitation to the right of open justice. While the constitution protected minors, that did not extend to the school, management, administration and activities.
He argued the public was entitled to know about the activities and conduct of the school.
However, advocate Craig Watt-Pringle for Michaelhouse submitted it had always been accepted by courts that the principle of open justice had limits.
He submitted the court should exercise its discretion in favour of the minors’ rights to dignity and privacy.
If the file was not sealed, there existed a real risk the identities of some or all the minor children who were involved in the incidents would inevitably be disclosed. The contents of the file could be distributed via media, which may include social media, and if that happened it may leave an irreversible or permanent mark on the dignity and reputation of the minors concerned.
The judge said the subject matter was particularly sensitive, invoking rights to dignity, privacy and bodily and psychological integrity.
“I have no doubt the incident that occurred at the school is already known among the school community. The evidence is that members of the school are very close and that intensifies the risk of the identities of the minor children being disclosed.
“I do not doubt the rights and interests of the minor children would be compromised if the file is open to the public and not kept confidential,” the judge said.
“On the facts of this case, and considering the nature of the allegations, I am satisfied it would be in the interests of justice and the interests of the minor children if the review file is declared confidential at this stage.”
The judge said the court hearing the review would be best placed to decide the question of whether the hearing would be in open court.
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