26 February 2016

SAHA takes Reserve Bank to court over refusal to grant access to records related to alleged corruption committed

The South African History Archive (SAHA) has filed court papers seeking a final order compelling the South African Reserve Bank (SARB) to grant access to apartheid-era records of financial fraud. SAHA, in consultation with the Open Secrets Project (a research project focusing on the legacy of corruption, power and profit in South Africa), submitted a request under the Promotion of Access to Information Act, 2000 (PAIA) (a PAIA request) to the SARB for various records related to suspected financial corruption that may have occurred during the apartheid era, including fraud through manipulation of the financial rand dual currency, foreign exchange or the forging of Eskom bonds.

While SAHA believes that public access to this information is vital to gain a clearer understanding of ways in which economic crimes of the past may be shaping present day corruption in South Africa, the SARB argues in its decision to deny SAHA access to these records that, in terms of the South African Reserve Bank Act, 1989 (the SARB Act), it is precluded from granting access under PAIA. The SARB further contends that access should also be denied in terms of various provisions of PAIA. Under PAIA the SARB has relied on a shopping list of grounds for refusing access to these decades-old apartheid-era records. Reasons for refusing access cited by SARB  include, but are not  limited to, assertions that SARB is bounds by a duty of confidence is owed to a third party,  and disclosure of records is likely to materially jeopardise the economic interests or financial welfare of the Republic. SAHA, however, remains convinced that this reliance on the SARB Act is misplaced for a variety of reasons, including the fact that PAIA overrides older laws which limits access to information. Further, SAHA argues that the SARB has misconceived the sections of PAIA on which it is relying, such as those related to confidentiality and a duty to protect the country's economic interests. But perhaps most significantly SAHA maintains that, even to the extent that access could be denied under PAIA, access could still be granted under the public interest override provision in PAIA, as these records may well reveal substantial contraventions of the law.

SAHA has therefore been forced to litigate as the SARB has clearly misconstrued its mandate and responsibilities in terms of PAIA. With the absence of an internal appeal procedure, and the fact that there is still no Information Regulator established and ready to hear complaints, SAHA is compelled to approach the court to force the SARB to comply with its constitutional duties.

For more information, the court papers for the South African History Archive Trust v South African Reserve Bank and another Case No. 5598/2016 matter are available here:



To follow the matter from the beginning, visit the SAHA PAIA Tracker entry related to this case.