South African High Court refuses access to apartheid-era records
South African History Archive Trust v South African Reserve Bank and Another, Case No. 05598/16
Court: High Court of South Africa (Gauteng Local Division, Johannesburg)
Date of judgment: 19 March 2018
On 19 March 2018, the High Court of South Africa (Gauteng Local Division, Johannesburg) (High Court) dismissed an appeal by the South African History Archive Trust (SAHA) in respect of access to apartheid-era records of the South African Reserve Bank (SARB).
The request had been made by SAHA to the SARB in 2014 in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA). In terms of the request, SAHA sought access to evidence obtained by the SARB relating to corruption during apartheid, and the use of public and private institutions to facilitate the externalisation of South African funds between 1980 and 1995, in respect of eight listed individuals. The request was framed as follows:
“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 in relation to the following persons…”
The SARB acknowledged that it was in possession of records regarding three of the eight listed individuals, but refused access on three grounds: (i) that SAHA was non-suited for failing to join the individuals who were still alive; (ii) that the scope of the PAIA request was unreasonably vague; and (iii) that the exemptions under PAIA justified non-disclosure of the records.
The High Court agreed with the SARB that SAHA was non-suited to proceed in the absence of joinder of the listed individuals, but noted that even if it were wrong in this conclusion, the appeal anyway fell to be dismissed on the ground that the scope of the request was impermissibly vague.
As to the formulation of the request, the High Court was of the view that it failed to identify the specific records being sought or provide sufficient particulars for a reasonable SARB official to identify the records. Instead, according to the High Court, the SARB would be required subjectively to determine which records may tend to prove a substantial contravention amounting to significant fraud. The High Court noted that it was further not clear whether the records sought in the request were limited to a particular time period or referred to records obtained at any time.
While the SARB had in correspondence requested SAHA to provide further particulars to help it identify the records, SAHA did not do so prior to the litigation. It did, however, reformulate the request in its replying affidavit and again in its heads of argument. The High Court was not willing to accept this, and stated (at para 27) that “[t]he court is not licensed to entertain the rolling request, and the application falls to be dismissed for this reason alone”.
The High Court did accept that SAHA was entitled to rely on new grounds of appeal, and that the SARB was entitled to rely on new grounds of refusal, on the basis that the court of appeal is placed in exactly the same position as the original decision-maker and enjoys the power of re-hearing de novo.
The SARB raised the following grounds of refusal:
- In terms of section 34 of PAIA, on the basis that the records contained personal information relating to a third party.
- In terms of section 36(1)(b) of PAIA, on the basis that a public body must refuse a request for access to a record if it contains financial, commercial, scientific or technical information of a third party, the disclosure of which would likely cause harm to the commercial or financial interests of that third party.
- In terms of section 45(1)(b) of PAIA, on the basis that a public body may refuse a request for access to a record if the work involved in processing the request would substantially and unreasonably divert the resources of the public body. The SARB expressed concern over whether it would be feasible to notify the vast number of third parties that may be affected by the request, as was required by section 47 of PAIA.
As to the last-mentioned, the High Court held that the processing of the request would clearly unreasonably divert the SARB’s resources. The High Court then turned to consider the public interest override contained in section 46 of PAIA. The High Court took the view that the SARB could not be faulted for taking into consideration the factors that it did when assessing the public interest. This included that the records were sought for purposes of documenting it in a book, which was not a pressing issue; and that the records sought by SAHA were not a report or memorandum, but documents which may, out of context, result in speculative and unsubstantiated commentary.
Accordingly, the High Court held that the public interest in the disclosure would not outweigh the harm contemplated under PAIA, especially given that the request pertained to documents collected by the SARB decades ago. The High Court held further that the SARB had justified why the severability provisions in terms of section 28 of PAIA did not apply, and that it had complied with its duties in terms thereof.
In conclusion, the High Court dismissed the application, and ordered SAHA to pay the SARB’s costs.
The full judgment is accessible here.
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