n South African Law Journal - Suing anonymously : when is the personal price to pay for justice too high?




Justice is served both by openness and by access, but these two values may in some cases be in need of careful balancing. Such cases would be, for instance, where the personal psychological harm to a prospective plaintiff of having her identity as plaintiff disclosed to the public would effectively bar her from launching the civil action in court. In appropriate cases, the solution would be to grant an anonymity order to the prospective plaintiff. However, there is no direct authority in South African law on the granting of anonymity orders in civil cases in general, which causes uncertainty that is not in the interest of justice. As such, I analyse the comprehensive test for the granting of confidentiality orders (which include anonymity orders) in civil cases that has been developed in Canadian law, namely the Sierra Club test. In brief, this test entails that an anonymity order should only be granted if such anonymity order is (a) necessary, and (b) proportional to its purpose. I conclude that the Sierra Club test could fruitfully be applied in our law.


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