On 17 February 2016, after more than two years of protracted communication with the Department of Defence (DoD), the South African History Archive (SAHA) filed papers in the Gauteng High Court in Johannesburg seeking an order to compel the DoD to grant access to certain records requested by SAHA from the DoD in terms of the Promotion of Access to Information Act, 2000 (PAIA).
This litigation arises from two requests for information made, in terms of PAIA (PAIA requests), by SAHA in August of 2013.
The apartheid-era documents requested under the first request, if released to SAHA, will likely provide insight into historical controls over the use of public funds by the apartheid military, potentially containing details of criminal conduct that should be aired publicly, not least because they almost exclusively stem from the apartheid period.
According to SAHA Director, Catherine Kennedy:
"Using PAIA to block access to records of apartheid-era wrongdoings, especially records that speak to the history of gross human rights violations in the country cannot go unchallenged as this points to an unacceptable conflation of pre- and post-apartheid realities in the treatment of state records and arguably amounts to a continuation of the old frame, contrary to emerging international principles that call for records relating to violations of international human rights to be treated as having a higher presumption of overriding public interest.i"
While the documents requested under the second request are more recent, they are likely to shed light on the effectiveness of measures put in place post-apartheid to guard against the re-occurrence of the types of abuses perpetrated under apartheid, something in which the public clearly has a vested interest.
The process of obtaining these records from the DoD has been frustrated by the DoD’s repeated failure to provide SAHA with, in the first instance a compliant response, and in the second instance a substantive decision, to these requests in terms of the requirements laid out in PAIA. Despite the DoD’s failure to adhere with the statutory time frames prescribed by PAIA, SAHA has, in an attempt to avoid unnecessarily embarking on costly litigation, repeatedly agreed to provide the DoD with additional time to comply with these PAIA requests. While there has been ongoing engagement with the DoD over this period, it has become increasingly apparent that not only is no final decision imminent, but the process followed by the DoD in dealing with requests made in terms of PAIA so hopelessly inadequate and non-compliant, that SAHA has no recourse but to approach the court for access to the requested records.
The court papers for the South African History Archive Trust v Minister of Defence and Military Veterans and another Case No. 5600/2016 matter are available here:
Access the Notice of Motion
Access the Founding Affidavit
Access the Confirmatory Affidavit
Access the Notice of Intention to Oppose
SAHA is represented in this matter by Lawyers for Human Rights (LHR) and advocates Geoff Budlender, Nasreen Rajab-Budlender and Nyoko Muvangua.
i This quote is drawn from a 2015 article - see http://www.rjr.ru.ac.za/rjrpdf/rjr_no35/Activating%20archives%20for%20accountability.pdf