20 March 2018
Court Strikes a Blow Against Transparency
The South African History Archive (SAHA) notes with great disappointment and alarm the decision that was handed down by the Johannesburg High Court on 19 March 2018 in the matter of the South African History Archive v South African Reserve Bank and another. Paradoxically, this took place on the eve of Human Rights Day.
In 2017, SAHA was compelled to approach the High Court requesting that it grant an order instructing the South African Reserve Bank (SARB) to release records relating to apartheid era economic crimes. The case arose from a Promotion of Access to Information (PAIA) request submitted by SAHA, in consultation with non-profit organisation Open Secrets, requesting various records related to suspected financial corruption that may have occurred during the apartheid era.
SAHA brought the matter to court because the SARB denied SAHA's requests citing that is was precluded from granting access under PAIA. The SARB also raised a number of peculiar defences that would shield the activities of a small group of individuals who have all been linked to apartheid era crimes from proper public scrutiny. An absurd argument was raised that such disclosure was likely to materially jeopardise the economic interests or financial welfare of South Africa. Furthermore, the SARB claimed that third party confidentiality would be infringed - despite these investigations dating more than two decades ago. Alarmingly the judgement that was handed down stands in agreement with SARB's submissions.
This is a major blow against transparency essentially ring fencing the SARB from proper scrutiny. The judgement also belittles the importance of releasing apartheid era secrets by treating it as historical record - these records relate to the internal workings of a system that was a crime against humanity. Releasing such records is therefore directly in the public interest.
SAHA maintains that SARB failed to put forward evidence of any likely harm that would occur with the release of the requested records. SAHA further asserts that the exclusions relied upon by SARB do not sufficiently override the constitutionally protected public interest considerations. SAHA believes that the release of these apartheid era records that illuminate the economic crimes of the past will help shed light and better understanding as to how corruption has developed over the years.
SAHA notes with great shock that the judge granted a costs order against SAHA. The judgement offers no explanation as to why this case merited a departure from the clearly held Constitutional standard established in the Biowatch case, that asserts that in constitutional litigation, an unsuccessful litigant ought not to be ordered to pay costs. This conservative judgment is a setback for civil society organisations litigating in the public interest - and we will consult with partners in civil society to collectively address this.
SAHA is currently in consultation with our legal counsel as to what our legal options are and the next steps we will take. Despite this setback, this battle is far from over and we remain resolute to continue the fight for transparency. If we are to strengthen our constitutional democracy it is imperative that information relating to past, and present economic crimes becoming publicly accessible.