In a precedent setting judgment handed down by the Supreme Court of Appeal (SCA) on Friday 29 May 2020 the South African History Archive SAHA prevailed in a six year long battle for access to information.
SAHA and the South African Reserve Bank (SARB) faced one another before the SCA in Bloemfontein in an epic court battle centred on the release of apartheid era records. SAHA’s appeal was not only to ensure access to this information but also to ultimately secure the right of access to information for all South Africans which was on shaky ground after an earlier judgement by the South Gauteng High Court.
The SCA judgment, upheld with costs, is particularly important as it signals a tremendous victory for democracy and our constitutional right to access information. This was to be hopefully the final instalment in the long saga which started in August 2014 when SAHA initially made requests to the Reserve Bank to access information. This request was undertaken in consultation with Open Secrets, a civil society organisation focused on investigating the links between economic crime and human rights abuse.
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…” The SARB formally denied SAHA's request over 14 months after submission despite the 30 day deadline stipulated by PAIA. The SARB listed, among other reasons, confidentiality and the possible risk to South Africa's economic interests as reasons for denying the request. Crucially, SAHA argued, PAIA overrides the reasons that were provided by SARB. Key to note is that even if access could be denied under PAIA, access could still be granted under the public interest override provision in PAIA because these records may well reveal substantial contraventions of the law. The enactment of PAIA signalled an important break with apartheid era secrecy. The unwillingness of state institutions to release records that are in the public interest undermines this.
In February 2016, SAHA then brought an application before the South Gauteng High Court seeking a Court Order requiring SARB to release the records as requested in the initial series of PAIA requests. Three years after the initial series of PAIA requests were made, the parties were heard by Judge K.E. Motojane on the application in August 2017, however in March 2018, the High Court handed a cost order in a shocking judgment against SAHA and standing in agreement with SARB’s submissions. Following the disappointing judgment, which threatened SAHA’s future it was compelled to submit a notice of application for leave to appeal. With the SCA judgement, this has ended favourably for SAHA.
In its judgement the SCA describes the SARB’s approach to withholding records on entirely spurious grounds as, ‘redolent to the dark days of apartheid where secrecy was routinely weaponised against a defenceless population’.
This successful appeal also ensures that the cost order made against SAHA by the South Gauteng High Court is not upheld. Not only did this pose a threat to SAHA’s future but this was sure to have a chilling effect to all other civil society organisations and journalists who would be weary of seeking access to records on the basis that they too could face a crippling cost order. The SCA in its wisdom has removed what risked becoming a major impediment to the public’s right to know.
Given the alleged widespread state capture in South Africa, and untangling the extensive networks that enable corruption, it is more pressing than ever for the state to consider proactive disclosure of key archival records as a way of its stated commitment to the values of transparency and integrity. Private interests remain central to the abuse of state power and for this reason, it is essential to hold those responsible for apartheid era and present day crimes and corruption to account, and access to information is a key instrument in these efforts.
During this long battle for access to apartheid era records, SAHA was supported by a committed team of counsel who appeared on behalf of SAHA, Geoff Budlender SC, Nasreen Rajab-Budlender and Frances Hobden and the team at Lawyers for Human Rights. Throughout this journey SAHA could draw on the support of Open Secrets in particular, Open Society Foundations and other civil society partners such as Right2Know amongst others.