Abstract
When a party refers to evidentiary material in the course of litigation, ordinarily this party is under an obligation to make this evidence available to his opponent, particularly when called upon to do so. However, over the years various principles have developed which make this obligation subject to certain limitations. The Fochville cases dealt with a situation where a party to litigation sought to withhold certain information from its adversary, notwithstanding the fact that the material had been relied upon as a ground for the institution of the litigation. This note critiques the judgments of the High Court and in particular the Supreme Court of Appeal in this dispute. In so doing, it draws on useful foreign law to argue that the Supreme Court of Appeal's judgment was an unfortunate one in that the court failed to clarify with reasonable precision the circumstances in which a party to litigation involving children's interests may legitimately resist disclosing evidence to his adversary, in which the party resisting disclosure invokes the principle of public interest immunity. In this regard, the note concludes that the High Court's overall approach to the issue is to be preferred.
 
Highlights
Facing the trial of his life in 1603 Sir Walter Raleigh, objecting to the admission of hearsay evidence, exclaimed: Let my accuser come face-to-face and be deposed
It draws on useful foreign law to argue that the Supreme Court of Appeal's judgment was an unfortunate one in that the court failed to clarify with reasonable precision the circumstances in which a party to litigation involving children's interests may legitimately resist disclosing evidence to his adversary, in which the party resisting disclosure invokes the principle of public interest immunity
Raleigh's experiences played a role in the inclusion of the Confrontation Clause in the United States Constitution.[2]. It is with Sir Walter in mind that I think the recent case of Centre for Child Law v The Governing Body of Hoërskool Fochville[3] raises some important questions about the principles of openness and fairness in legal proceedings
Summary
Facing the trial of his life in 1603 Sir Walter Raleigh, objecting to the admission of hearsay evidence, exclaimed: Let my accuser come face-to-face and be deposed. Raleigh's experiences played a role in the inclusion of the Confrontation Clause in the United States Constitution.[2] It is with Sir Walter in mind that I think the recent case of Centre for Child Law v The Governing Body of Hoërskool Fochville[3] raises some important questions about the principles of openness and fairness in legal proceedings. Amongst other issues, it raises the interesting question of the extent to which our law recognises public interest immunity in legal proceedings involving children's interests. In cases involving children, is it sufficient for a party seeking to prevent disclosure to merely assert that so doing will not be in the best interests of the child?
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