25 February 2020

SAHA at the Supreme Court of Appeal


On the 3rd day of March, 2020, SAHA and the South African Reserve Bank (SARB) will face off in round two of an epic court battle centred on the release of apartheid era records. To be quite honest, the whole matter reads much like a suspense novel with the chance of setting a precedence that could shake, or at least tremor, access to information laws in South Africa and the general practice when it comes to cost orders in litigation against State/Public bodies.

In August 2014, SAHA made requests under section 11 of the Promotion of Access to Information Act No. 2 of 2000 (PAIA Requests) for the SARB to release “copies of any and all records, or parts of records, of any evidence obtained by the SARB at any time as part of investigations into any substantial contraventions of, of failure to comply with the law in terms of significant fraud (including fraud through the manipulation of the financial rand dual currency, foreign exchange or forging Eskom bonds), gold smuggling or smuggling of other precious metals from 1 January 1980 to 1 January 1995…” Between August 2014 and October 2015 there was numerous correspondence between SAHA and the SARB’s information officer which ultimately ended in the SARB rejecting SAHA’s request on 28th of October, 2015.

                In February 2016, SAHA then brought an application before the High Court of the Republic seeking a Court Order requiring SARB to release the records as requested in the initial series of PAIA requests. It wasn’t until August 2017 that the parties were heard on the application. Already 3 years after the initial series of PAIA requests were made, the parties were heard by His Lordship Judge K.E. Motojane on the application. In his judgement:

1.       The Court, after embarking on a brief analysis of the relevant case law found that SARB’s preliminary point was of substance and that the application was subject to dismissal for non-joinder of the relevant parties. SAHA had made the initial series of PAIA requests with respect to 8 named individuals. In the proceedings before court, Notice in accordance with the Court Rules was given to 6 of those individuals however, the SARB argued that 3 of the people named should have been cited as parties to the application because their legal interests would [directly and substantially] be affected. The Court agreed with this argument.


2.       Another issue before the Court argued by the SARB was that the request made by SAHA was vague and for that reason subject to denial from SARB. The Court went on to analyse the merits of the issue and found that indeed the request as made by SAHA was too vague. Requesting copies of “evidence” of possible contravention of the law was interpreted by SARB, as was the argument in their filings, that SAHA sought evidence of wrong-doing. The documents and records located in SARBs possession, they opined, did not amount to “evidence” in the strict sense. For this reason, they denied SAHA’s request for want of compliance with PAIA Rule 18 requiring that a request provide “sufficient particulars” of the records requested. In other words, the request was denied for vagueness. The Court agreed that the request was “unduly vague and broad” as it did not afford SARB the requisite specificity under the Rules and as such subject to denial from SARB.


3.       The SARB did concede that as it relates to one named individual in the requests, 43 boxes of records were located. However, the SARB refused release of these records based on the exception provided in section 45(1)(b) of PAIA which provides that “The information officer of a public body may refuse a request for access to a record of the body if…the work involved in processing the request would substantially and unreasonably divert the resources of the public body.” The Court held, at paras. 41 and 43 of the judgement that indeed releasing the records to SAHA would substantially and unreasonably divert SARB resources. In coming to this conclusion, the Court agrees with SARB’s assertion that to facilitate release of the 43 boxes located, at a rate of 2 to 3 boxes per day, it would take SARB 86 to 129 days to so do.


4.       SAHA contended that release of the records was in the public interest, further that this public interest outweighed, and overrode the arguments made by SARB against release of the records. The Court did not agree with SAHA in this regard and, again, agreed with the SARB that the public interest override did not save SAHA from the defects outlined.


5.       For the reasons of non-joinder, vagueness of the request, the unreasonable diversion of SARB resources, as well as the lack of public interest override, the Court dismissed the application with an order for costs.


6.       This cost order was rather unusual as there is a well-established practice that in matters as these against public bodies, particularly NGOs and public advocacy groups as against public bodies, the Courts will ordinarily not make an adverse cost order against the other party. Partially reason being that the Courts are weary to deter other public interest advocacy groups, NGOs, and other non-state bodies from instituting litigation against public bodies out of fear of an adverse cost order, more especially in light of the certain financial disparities between public bodies and private groups/bodies. Also, another unusual feature of the cost order was that it was awarded inclusive of the costs of two counsel and was so ordered without reasons or explanation given from the bench. The Cost order came to the tune of R2,7 million.

The parties will be heard in The Supreme Court of Appeal based in Bloemfontein. Arguing before the SCA to convincingly advocate that the previous court erred in making their decision will be no easy feat, however SAHA is confident in the competent team of lawyers from Lawyers for Human Rights and senior counsel. The Appeal will be heard in Court C at 10am in the 3rd of March, 2020 by a bench comprising of Cachalia JA, Mbha JA, Schippers JA, Mojapelo AJA, and Gorven AJA.

For your interest and convenience, we have included a link to the Appellant's Heads of Argument here which detain the points to be argued by SAHA in the appeal.