3 June 2020
The South African History Archive Trust (SAHA) has won an important victory for the constitutional right of access to information in the Supreme Court of Appeal.
In a unanimous judgment, the court found that the Reserve Bank had unlawfully refused to provide SAHA with records in terms of the Promotion of Access to Information Act (PAIA). The records contain information about various individuals connected to apartheid-era activities. SAHA requested the information for the purpose of writing a book about public accountability during apartheid.
The court also found that the Reserve Bank had adopted an obstructive attitude towards the PAIA request and never provided any proper justification for refusing it. Acting Justice Trevor Gorven said the failure of the Reserve Bank to act in accordance with the requirements of transparency and openness justified an order requiring it to pay SAHA’s legal costs.
In 2014, SAHA submitted a PAIA request to the Reserve Bank for records of several individuals implicated in fraud and smuggling during apartheid. The names included former security branch policeman Craig Williamson and the head of the apartheid chemical weapons programme, Dr Wouter Basson.
Information was also requested about Vito Palazzo, a member of the Sicilian mafia whom apartheid politicians helped to get a new name and permanent residence in the Ciskei after his escape from a Swiss prison in 1986. SAHA also asked for records about Robert Hill who fled South Africa in 1998 after being charged with forging Eskom bonds, and Brigadier Johan Blaauw (now believed to be dead) who has been implicated in arms smuggling and the illegal purchasing of nuclear material from Israel for the apartheid nuclear weapons programme.
The Reserve Bank informed SAHA it only had information on Vito Palazzo, Robert Hill and Johan Blaauw and had decided to refuse the request for these records.
SAHA then went to the Gauteng High Court to force the Reserve Bank to disclose the records. The High Court agreed with the Reserve Bank and found that SAHA was not entitled to the requested information. SAHA then appealed this judgment to the Supreme Court of Appeal.
The Reserve Bank broadly relied on two arguments in opposing SAHA’s case.
First, it argued that Palazzo and Hill should have been joined in the legal proceedings, because they could be prejudiced by an order requiring the Reserve Bank to disclose their records. The failure of SAHA to join Palazzo and Hill meant they could not participate in the court proceedings or make arguments on whether their information should be disclosed. Deciding the case in their absence would violate their right to be heard on a decision which could negatively affect them, the Reserve Bank said.
Second, the Reserve Bank argued that PAIA provided it with several reasons that justified its refusal to provide the requested information. Among other reasons, the bank said that providing Palazzo’s records would result in the unreasonable disclosure of his personal information and information he supplied to the Reserve Bank in confidence. The work involved in processing Hill’s records (consisting of 43 boxes, each with five lever-arch files) would also substantially and unreasonably drain the resources of the Reserve Bank. The bank said Blaauw’s records could not be provided because this would result in the disclosure of commercial information that could harm a third party.
The Reserve Bank also said that disclosure of the records would materially jeopardise the financial interests and wellbeing of the country and argued that SAHA had not established that it would be in the public interest for the records to be disclosed.
The court pointed out that SAHA did not request an order requiring the Reserve Bank to disclose the information of Palazzo or Hill without affording them a hearing on whether their information should be disclosed.
Rather, it requested an order requiring the Reserve Bank to notify Palazzo and Hill of the PAIA request and to afford them an opportunity to make representations on why their records should not be disclosed. This meant there was no merit in the argument that their right to be heard on a decision which could negatively affect them would be violated.
The court also pointed out that the Reserve Bank would still have to decide whether it was required to disclose the records after receiving representations from Hill or Palazzo. This meant they did not have an automatic right to prohibit the Reserve Bank from disclosing their records. It also meant that the Reserve Bank could not refuse to disclose the records simply because Palazzo or Hill had not consented to disclosure. The Reserve Bank would have to consider their representations and make an informed decision on whether it was legally required to disclose the information that SAHA had requested.
Justice Gorven said that that everyone has a constitutional right to access information held by the state. This means that information requested in terms of PAIA must be provided. Requested information can only be refused if the state can show there is a legitimate reason to refuse disclosure. If the state refuses a request, it should provide sufficient detail regarding why the request was refused so the requester can determine whether the refusal was for a legitimate reason.
The court said the Reserve Bank had not established any legitimate basis for refusing SAHA’s request. For example, it did not provide the court or SAHA with any indication regarding how the disclosure of the records would materially jeopardise the financial or economic wellbeing of the country. It also provided no indication about what type of personal information would be disclosed and why the disclosure of that information would be unreasonable. The Reserve Bank also had not explained what type of information was supplied in confidence, or whether this information was contained in the requested records.
Justice Gorven said the Reserve Bank had based its decision to refuse disclosure on speculation and not facts. It had adopted an obstructionist attitude which was contrary to the spirit of PAIA and which was similar to the secrecy of the apartheid government.
The court ordered the Reserve Bank to provide SAHA with the records it requested about Blaauw. It also ordered the Reserve Bank to notify Hill and Palazzo of the PAIA request for their information. Once Hill and Palazzo have been notified, they will have an opportunity to make representations to the Reserve Bank if they believe their records should not be disclosed to SAHA within 30 days.