SAHA's UNRESOLVED PAIA REQUESTS

Details of some of SAHA's unresolved PAIA requests are below. For more information about any of the cases, contact Gabriella Razzano.

In addition to the below requests, SAHA continue to be involved in submitting requests for individuals' security legislation directorate files.

Records of the National Conventional Arms Control Committee (NCACC)

In July of 2008 SAHA submitted 4 separate PAIA requests to the NCACC. The requests were for: copies of the NCACC's annual reports for 2006 and 2007; copies of all the quarterly reports that the NCACC has issued to parliament since the NCACC's inception; copies of all the reports that the NCACC has issued to the United Nations conventional arms registrar; details of the people or companies that are in possession of permits to sell, manufacture, distribute, import, export or re-export arms into or from South Africa; as well as other details relating to arms sales, imports, exports and distribution within South Africa.

The NCACC failed to respond to any of the requests. Similarly, the head of the NCACC failed to reply to the internal appeal that SAHA submitted. This left SAHA with no option but to initiate litigation. The matter was scheduled to be heard in the Pretoria High Court on 9 October 2009, but was postponed to 17 May 2010. 

While present at Court, SAHA accepted another request for postponement by the NCACC so that they could consider settlement at a group meeting. Though some documents have been released to SAHA already, there is still the strong belief that  far more of the records could be released to us without requiring litigation.

Apartheid-era files of former BCM members

SAHA is assisting the Steve Biko Foundation to attain copies of the Security Legislation Directorate files that the apartheid regime compiled on numerous Black Consciousness Movement (BCM) members.

SAHA submitted PAIA requests for the files in question in October of 2008. To date the National Archives have made all of the requested files available, though collection for some is still outstanding. SAHA has delivered all but 3 to the Foundation.

The Steve Biko Foundation is using the information in the files to create biographic profiles that will appear in the Steve Biko Museum in King Williams Town, when the museum is opened. For more details about the Steve Biko Museum contact the Steve Biko Foundation: http://www.sbf.org.za/

The Generals' Report

In February of 2009 SAHA (in conjunction with the Southern African Centre for the Survivors of Torture and the Southern African Litigation Centre) submitted a PAIA request to the Presidency for a copy of the Generals' Report. The Generals' Report was composed by former SANDF Generals who were tasked with investigating the violence in Zimbabwe subsequent to the elections there last year.

The Presidency claims that the Generals only reported back orally, not in writing; and as such there is no report to release. SAHA submitted an internal appeal, and that too was denied. Minister Chabane seconded the response to the initial PAIA request, and denied the existence of a report that could be made available.

SAHA, SACST and SALC remain skeptical about the Presidency's response. Aside from the significance of the matter investigated by the Generals, the lack of a written report is curious when one takes into account that the Generals' trip cost the South African government over six hundred thousand Rand.

In light of the above response, SAHA submitted a second PAIA request. This request asked for minutes and/or recordings of any meetings in which the content of the Generals' Report was discussed, including meetings in which the Generals reported back to the President on their findings related to the violence, and the causes thereof, that they were investigating.

After receiving another negative response, SAHA submitted an Internal Appeal to the Presidency.This Internal Appeal was also refused on the same eyebrow-raising grounds.

In response, SAHA is in the process of litigating the issue of briefing counsel. An application as been filed at the High Court, and the Presidency has already lodged a notice of their intention to oppose the matter and affidavits have been exchanged.

TRC cases and records

Since 2006 SAHA has submitted numerous requests to the Department of Justice (DOJ) for various records of the Truth and Reconciliation Commission (TRC). Amongst the records that SAHA has requested are: the amnesty applications that Eugene De Kock, Janus Walus and Clive Derby-Lewis submitted to the TRC; transcripts of the TRC's section 29 in-camera hearings; minutes of the TRC's reparations committee meetings; and a copy of the TRC's victims database. The DOJ has time and again refused access to TRC records.

SAHA continually points out to the DOJ that the TRC was a public process - and hence that the records of the TRC are in the public domain; it is in the public interest for the TRC's records to be available to the public; and, that it is contrary to the spirit of the TRC to withhold these records.

SAHA has received from the Department the records in relation to Eugene De Kock, Janus Walus and Clive Derby-Lewis. However, on the question of the TRC Database, a file was released, but unfortunatly only released with one field available which made it unusable. After SAHA consulted with the Department, another copy of the Database was released with more available fields to assist in the statistical analysis of the data. SAHA is currently busy trying to assess the usability of this information for civil society generally.

Records of the CIA involvement in the arrest of Nelson Mandela

In 1962 Nelson Mandela was arrested at a roadblock. It was later uncovered that the Central Intellgience Agency had been involved in the arrest - with one of their informants in fact being the tip off for Mandela's movements. This was all revealed during TRC investigations, and documented in TRC Final Report: Volume 2.

In light of this SAHA sought, through a PAIA request, access to all documentation, media and research material which the TRC had used to inform their Report from the Department of Justice and Constitutional Development, the custodians of most TRC documents.

However, this Request was refused on the grounds of section 23: the records were reasonably believed to not exist, because the Department could not find them. SAHA has submitted an Internal Appeal against this refusal, though, on the belief that the Department is misusing the section. As the custodians of the documents, the Department is required to provide more information about the whereabouts than is currently being disclosed (an opinion base mainly on how section 23 is formulated).

The appeal on this ground was subsequently refused. In consultation with the Department, it was suggested that the documents are possibly with the National Intelligence Agency, and SAHA is considering a request to the NIA to pursue this angle (though the Department of Justice were in fact obligated to transfer the request if they believed this to be the case).

The issue of section23 remains a live and pressing concern. SAHA will continue to pursue other means to try and deal with this issue.