15 December 2006

SAHA rejects claim intelligence records outside ambit of PAIA

On Wednesday 13 December 2006 the South African History Archive filed the replying affidavit in its case against the Minister of Defence (the Minister), pursuing the return of military intelligence records transferred to Zimbabwe. SAHA denies both the procedural and substantive grounds of defence laid out by the Minister, in particular his assertions that the records did not fall within the ambit of South African legislation, and that, if they did, the steps taken by the Department in returning the documents were compliant with their legislative obligations.

The Minister in his Answering Affidavit seeks to have the matter struck off the roll on the basis of two points in limine: he claims that SAHA has no standing to pursue the matter and that SAHA is out of time as it did not file its founding papers within 30 days of deemed refusal of the internal appeal and has not applied for condonation. It would not be unreasonable to assume that these grounds appear an attempt to deter SAHA and avoid further scrutiny. We refute the first ground on the bases that, while we were a representative of the initial requester, we were for all purposes treated as the requester by the Department, and that the Promotion of Access to Information Act 2 of 2000 (PAIA) defines a requester as a person acting on behalf of the individual making the request. In responding to the second ground, we point out that the Department did not at any time comply with the timelines prescribed by PAIA. Nevertheless we apply for condonation for late filing on the basis that such filing was reasonable in the circumstances.

More substantively, the Minister has laid out the reasoning behind, and the steps taken by the Department prior to, transferring the records. These are:

  • The records were obtained ‘unofficially' by the Military Intelligence Division of the South African Defence Force in 1980 and are Rhodesian records.
  •  The records were transferred to the Department's archives in 1993 with other intelligence records and were processed as Afdeling Militêrê Inligting Group 4.
  •  The provenance of the records was discovered in 2002, and a decision was taken to transfer them to the Zimbabwean government.
  • In 2004, following submission of the PAIA request in question, the Chief of the South African Defence Force, Siphiwe Nyanda, took the decision following ‘consultation' with the National Archivist to transfer the records to the Zimbabwean government to ‘avoid embarrassment'.
  • The records were handed to the Deputy Defence Attaché at the Zimbabwe High Commission on 13 December 2004.

The explanation satisfies one element of SAHA's prayer for relief in that it identifies the person responsible for, and an explanation of the decision making leading up to, the transfer. However it fails on a number of grounds to satisfy its other elements.

The Minister has rejected SAHA's claim that they should take all reasonable steps to seek return of the records on the basis that it cannot force another sovereign state to take any steps subject to an order of a court. What it fails to acknowledge, however, is that the precise terms of the prayer for relief seek that the Departmenttake all reasonable steps to seek return, rather than forcefully exercise authority over a foreign state.

The response of the Minister also demonstrates that the Department has failed to execute its obligations pursuant to PAIA and the National Archives and Records Service Act of South Africa, as it failed to preserve records while a request was being processed, and failed to gain the written authority from the National Archivist, or the Minister in the event of a dispute, to return the records. SAHA therefore pursues the third element of the prayer for relief, being an order that the transfer was contrary to the Department's legislative obligations.

While we now have clarification of the reasoning behind the transfer, we are disturbed by the simple nature of the motivation, being that the records were ‘unofficially obtained and the transfer was necessary to ‘avoid embarrassment'. An avoidance of embarrassment has no legal basis; nevertheless it is an unsurprising argument in an environment where some public bodies are less than pleased with public criticism. Of greater concern is the assertion that military intelligence gathering exercises or operations can result in unofficial acquisitions of records that are not subject to legislation governing access and classification in any jurisdiction. It seems somewhat absurd to claim that military intelligence officials that are covertly gathering information pursuant to official military intelligence exercises, information that is retained along with intelligence records from the southern African region by the Department, can do so in a way that is ‘unofficial' and outside the ambit of legislation governing all other intelligence records.

For more detail concerning the case please find attached SAHA's Internal Appeal and the Founding, Answering and Replying Affidavit's in this matter.

For more information please contact Kate Allan on 011 717 1941, 082 977 7401 or at foip@saha.org.za.