In the latest chapter of a six-year showdown over records detailing “significant corruption and fraud” between 1980 and 1995 under the apartheid regime, the Supreme Court of Appeal has been asked to rule on an appeal by the South African History Archive Trust (SAHA) against a decision that allows the South African Reserve Bank (SARB) to keep records and investigations a secret.
The matter started in August 2014. Then, SAHA applied in terms of the Promotion of Access to Information Act for the SARB to release documents relating to investigations into 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 request was denied in October 2015.
The SARB claimed that it only held records relating to three of the individuals on SAHA’s list. These were Brigadier Jan Blaauw, a former brigadier in the South African Defence Force who was implicated in arms dealing to circumvent a ban by the UN, Sicilian banker and former South African resident Vito Palazzolo, who was recently released from prison in Sicily where he served time for Mafia-related crimes, and South African businessman Robert Hill, who allegedly fled the country in 1988 after he was implicated in the forgery of Eskom bonds.
In February 2016, SAHA brought an application before the Johannesburg High Court for the release of the records. The case was heard in August 2017. Judge Elias Matojane dismissed SAHA’s application and made a cost order totalling R2.7-million against the organisation.
Motojane’s reasons for his ruling was that the three people implicated in the documents sought by SAHA should have been added as parties to the application. The court also found that SAHA’s request was too vague and broad.
The SARB also relied on an exception in the law that gathering the information would substantially and unreasonably divert the resources of the public body. It claimed that the records for just one of the individuals cited filled 43 boxes. The court found that it would take the SARB between 86 and 129 days to do so and this was too onerous.
On Tuesday before the Supreme Court of Appeal, advocate Geoff Budlender SC, acting on behalf of SAHA, argued that the right of access to information is fundamental to a state whose founding values include the pursuit of “accountability, responsiveness and openness”.
“The Constitution reflects the need for a decisive break with the apartheid state’s obsession with secrecy. The purpose of the right of access to information is to subordinate the organs of state… to a new regimen of openness and fair dealing with the public,” Budlender argued.
“The whole matter reads much like a suspense novel with the chance of setting a precedent 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,” SAHA said in a statement.
A number of civil society organisations have pledged their support to SAHA.
These organisations are the Ahmed Kathrada Foundation, the Alternative Information and Development Centre (AIDC), Biowatch, the Council for the Advancement of the South African Constitution (Casac), the Centre for Applied Legal Studies (CALS), the Centre for Environmental Rights (CER), the Centre for the Study of Violence and Reconciliation (CSVR), Corruption Watch, Equal Education Law Centre (EELC), the Foundation for Human Rights, the Human Rights Media Centre, the Imam Haron Foundation, the Khulumani Support Group, the Legal Resources Centre (LRC), My Vote Counts (MVC), the Neil Aggett Support Group, Open Secrets, the Organisation for Undoing Tax Abuse (Outa), the Public Affairs Research Initiative (PARI), the Public Service Accountability Monitor (PSAM), the Right2Know Campaign and the South African Faith Communities Environment Institute (SAFCEI). Several individuals have also pledged their support, including Yasmin Sooka (a former TRC commissioner), advocate Dumisa Ntsebeza (a former TRC commissioner), Mary Burton (a former TRC commissioner), Jill Aggett, Salim Essop, Gavin Anderson and Nicole Fritz.
In a joint statement, the organisations said the matter “is fundamentally important to the work of civil society in South Africa and involves central questions related to the unfinished business of justice for apartheid era economic crimes. SAHA’s appeal… is vital to understanding our past and continued efforts for social justice.
“By denying access to records of its own investigations into alleged economic crimes during apartheid the South African Reserve Bank is protecting the interests of a small group of men, some of whom have been implicated in serious economic crimes and human rights abuses.
“The South African Reserve Bank should not act as if laws such as the Promotion of Access to Information Act (PAIA) do not apply to it. The refusal of access to information was without a reasoned basis. The free flow of information is the lifeblood of our hard-won democracy. The bank and its governor should act with integrity and ensure the release of these records and not protect the powerful (including many linked to significant acts of criminality) at all costs.”
They said the judgment also reversed a long-standing principle when the court ordered the SAHA to pay the bank’s fees.
“The amount is significant (R2.7-million) and will serve to not only potentially bankrupt SAHA but send a chilling effect to all civil society organisations which are unlikely to take the state to court in future to gain access to records that are in the public interest.
“This struggle is in the interest of all South Africans and deserves our support. We call on the governor of the SARB to do the right thing: release the records, withdraw the request for cost payments by SAHA and show that you are invested in our constitutional right to access information and serve the public interest,” the statement concluded.
According to papers before court, following the request of the SAHA, the SARB identified a number of documents in its possession relating to all three people. Blaauw has since died and while both Palazzolo and Hill were informed of the application, neither indicated that they wished to take part in the proceedings.
The South African Reserve Bank, however, said the request was too vague.
Budlender argued on Tuesday that as the bank had managed to identify and find the records SAHA referred to, the request could not be too vague.
He said the SARB’s approach was “regrettable”.
“It is an approach which is unworthy of an institution such as SARB, and it is inconsistent with the requirements of the Constitution. It is an approach, we submit, that calls for adverse comments by this court,” he said in court.
“In the nature of things, it is highly unlikely that financial information from 20 or more years ago would cause any material financial or commercial harm. The events – the alleged economic crimes – are events of great importance in South Africa’s history.
“Very little is known about the nature and extent of corruption under apartheid. The lack of knowledge is a result of the culture of state secrecy. There is a strong public interest in not perpetuating the results of that culture. There is a right to truth about the economic crimes that took place in the final decades of apartheid. Many of these illicit activities were carried out with the objective of supporting the apartheid state.
“The public has the right to know information that sheds light on how and by whom the apartheid state and system were supported.
“In some of these transactions, the SARB itself was suspected of irregular conduct. The disclosure of this information would allow researchers and the public to gain a better understanding of corruption under apartheid,” Budlender argued.
“The public has the right to know the facts, and to know what the records of public bodies reveal in that regard. It is simply untenable that disclosure and speech regarding allegations of serious violations and criminal conduct during apartheid should be limited by SARB on the basis that it thinks the matter is ‘academic’.”
The Reserve Bank argued that the disclosure of documents may infringe on the privacy rights of companies and a trust. Budlender said that there was no factual basis for this argument.
“The documents refer to events which occurred more than 20 years ago. SARB has not demonstrated that these entities still exist, let alone made any attempt to contact them. SARB may sever personal details of third parties in order to protect the personal information of natural persons. And severance is also available to deal with any other demonstrated harm. A ‘privacy’ allegation, unsubstantiated by any facts, provides no basis for blanket non-disclosure.
“The court should have found that SARB failed to adduce evidence to lay a factual foundation for its allegations of harm, and that to the extent that any harm might arise, the public interest in disclosure outweighed any such harm.” MC
"The thorny question of violence is not just a matter of tactics. It is the defining question in the life and death of [social] movements." ~ Manuel Castells
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