28 October 2016

Testing the right to know through the courts

Like the mythical Kraken SAHA has extended its tentacles, grappling a number of ships in the ocean of access to information. Put differently SAHA is engaged in several litigious matters in an attempt to gain access to records, held by government and its agencies, that will benefit the public. In what follows SAHA provides an update explaining where each matter is in the court process.

Section 29 hearing transcripts”

The Section 29 hearings were closed hearings of South Africa’s Truth and Reconciliation Commission (TRC), held under Section 29 of the Promotion of National Unity and Reconciliation Act, 1995 (the TRC Act). SAHA submitted a request to the Department of Justice, in 2013, for copies of the transcripts of these hearings. The request was denied, and the appeal against the denial deemed refused by operation of law, due to the failure of the Minister of Justice to provide a decision.

SAHA therefore issued court papers in 2014 to force the department to grant access, in terms of the request, to the transcripts. This litigation was also strategically aimed at getting juticial precident around access to information related to human rights abuses committed during the apartheid era. Since December of 2014 SAHA and the department have, through our lawyers, been in settlement negotiations. The department has released a number transcripts to SAHA, and most of these are already accessible on SAHA’s website. We appear to be in the final stretch and anticipate that this matter will be finally wound up before the end of the year.

Strategic litigation

In the latter half of 2013 and the first half of 2014, in consultation with various researchers, a range of PAIA requests were submitted by SAHA for various records either from the apartheid era or related to the securitisation of the state.  Responses and deemed responses to those requests led to the identification of a range of substantive and technical issues that have been challenged by SAHA through the institution of strategic litigation in 2014, 2015 and 2016. This includes litigation against the following public institutions:

Department of Justice

This litigation relates to eight separate PAIA requests to the Department of Justice all refused on the same or similar grounds. Since the launch of the litigation, as with the section 29 hearing transcripts, the department has been in settlement negotiations with SAHA. SAHA anticipates receiving feedback on queries raised, through our lawyers, with the department in relation to attempts at settlement, and, as with the section 29 hearing transcripts, is hopeful that the matter will be settled by the end of the year 2016.

South African Reserve Bank

This matter relates to a request for 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. The application, brought against the South African Reserve Bank (SARB) in February 2016, is on the verge of being heard by the Johannesburg High Court. SAHA’s Heads of Argument have been filled and we are awaiting the filing of the SARB’s Heads of Argument early in November 2016, where after the matter will be set down for hearing by the court. SAHA is arguing that the SARB has misconceived the sections of PAIA on which it is relying in refusing the request, and that, in any event, these records should be released in the public interest.

Department of Defence

This matter relates to two separate PAIA requests. One, for apartheid-era documents which will, if released to SAHA, likely provide insight into historical controls over the use of public funds by the apartheid military, potentially containing details of criminal conduct that should be aired publicly. The other, for post-apartheid era records likely to shed light on the effectiveness of measures put in place post-apartheid to guard against the re-occurrence of the types of abuses perpetrated under apartheid.

This past February, after more than two years of protracted negotiations with the department in an attempt to settle these requests outside of court, SAHA launched litigation. Since the launch of litigation the department has made some feeble attempts at addressing one of the two requests, but the department’s responses remain non-compliant with the provisions of PAIA.

We have instructed our attorneys to write to the department requesting urgent rectification of the shortfalls in their responses, failing which the matter will be set down for hearing.  There is a strong indication that in this matter that the DOD is not willing to play ball, despite the risk of an adverse judgment against them looming and that the matter will after all proceed to court.

Office of the Auditor General

This litigation arose out of the refusal of requests 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. After the set down of the matter in April 2016, the Office of the Auditor General (OAG) through its attorneys has engaged with SAHA and its attorneys on resolving the matter out of court. Whilst SAHA has not abandoned its application there have been several instances where the settlement negotiations have been fruitful. Without disclosing too much SAHA can reveal that it has received several hundred pages of interesting records thus far.

Looking ahead

Overall SAHA is maintaining the ships steerage head on from afore/bow and confident that a number of records in which there is profound public interest will soon be made accessible. SAHA is also hopeful that this litigation will result in legal precedent with respect to some of the more sticky legal issues that arise in relation to access to information requests made in terms of PAIA. 

Read more about SAHA's litigation here

Read SAHA's PAIA requests here

Read more about the institutions against which SAHA is litiging here