04 April 2016

Press Release: SAHA goes to court seeking records of economic crime and abuse of power from the Auditor General

For Immediate Release:

The South African History Archive (SAHA) has filed court papers requesting that the court declare that the Auditor General of South Africa’s (AGSA) decision not to grant access to requested records is unlawful and unconstitutional. SAHA, in consultation with the Open Secrets Project (a research project focusing on the legacy of corruption, power and profit in South Africa) and Professor Jane Duncan from the University of Johannesburg, submitted three separate information requests, under the Promotion of Access to Information Act, 2000 (PAIA) (PAIA requests) to the AGSA, in August 2015. The PAIA requests were for records related to possible failures in modern day intelligence services, tax exemptions on the export, by the diamond company De Beers, of uncut diamonds from South Africa in 1992 and 1993, and the use of secret funding during the apartheid era to promote the policies of that regime.

SAHA believes that the requested records will enable both researchers and the South African public to test certain claims made by public and private bodies, both pre- and post-1994, about intelligence oversight, and the management of public funds. Access to the records related to intelligence services will likely make it possible to test whether weaknesses in intelligence oversight mechanisms that were identified by the Matthews Commission, a Ministerial Review Commission on Intelligence set up to look into the 2005 intelligence services crises, have yet been addressed. This is especially critical given the United Nations Human Rights Committee’s recent finding that South Africa has “relatively weak safeguards, oversight and remedies against unlawful interference with the right to privacy”.

SAHA also continues to struggle to gain access to material related to secret activities by the apartheid regime and those that benefitted from its policies.  A crucial aspect is reports on funding for covert activities and weapons acquisition that the AGSA prepared for the Truth and Reconciliation Commission and to which it denies public access.

In terms of private sector activities requested records related to tax exemptions on the export of uncut diamonds and secret funding could shed light on how it is that billions of Rand in tax money, money badly needed for social spending requirements, was either never collected or spent on dubious and illegal activities at the end of the apartheid era.

The AGSA has given identical blanket refusals with respect to each of these requests, claiming that the information in the requested records relates to third parties and therefore cannot be disclosed and that the Public Audit Act, 2004 (the PAA) in any event precludes them from granting access to these records. SAHA represented by Lawyers for Human Rights argues in its papers that the AGSA is misconstruing its duties under PAIA and the PAA, and in the process thwarting SAHA and the South African public’s right of access to information. In particular SAHA is arguing that PAIA makes provision for the protection of legitimate commercially sensitive or personal information to be protected from disclosure, and that, to the extent that there may be “third party” information in these records, the AGSA cannot simply refuse access to each and every part of every record, but that it must follow the procedures outlined in PAIA in this respect. Further, the AGSA’s reliance on the PAA is misplaced in that its duty is to ensure that it has internal safeguards to prevent inadvertent disclosure of audit records, not to prevent access to requests made through PAIA – the law enacted to give effect to the constitutional right of access to information.

The court papers for the South African History Archive Trust v the Auditor General and Another Case No. 10530/2016 are available through through SAHA’s online PAIA Tracker system:

Access the Notice of Motion here

Access the Founding Affidavit here

For more information, please contact:

Catherine Kennedy, Director of SAHA

011 718 2560

4 April 2016