What can the South African Reserve Bank’s archive of records tell South Africans about apartheid-era economic crime? The South African History Archive (Saha) intends to find out in round two of a legal battle with the Reserve Bank over access to apartheid-era records that could shine a light on alleged economic crimes committed in the 1980s and early 1990s.
The matter will be heard in early March this year at the Supreme Court of Appeal in what will be a key test of South Africa’s commitment to transparency, accountability and the right to freedom of access to information.
Saha’s appeal follows a 2018 judgment in the Johannesburg high court that went against the archive. Saha director Geraldine Frieslaar says the archive went to court in 2018 with “high hopes” as it was “expecting a favourable judgment”.
But Judge Elias Matojane not only ruled against Saha, he also slapped them with a R2.7 million cost order, which Frieslaar says has threatened the archive’s immediate future. Saha was left with no option but to appeal.
“We’re just trying to stay alive,” says Frieslaar. “This could sink Saha.”
Since 2002, Saha has established a track record of using Promotion of Access to Information Act (PAIA) applications to get hold of otherwise withheld records. “Some [applications] have been successful, others have not,” says Frieslaar. “We may be small, but we punch above our weight.”
One example of Saha’s PAIA activism occurred in 2016, when the Department of Justice handed the archive a copy of the Truth and Reconciliation Commission’s victim database after threats of litigation. “We believed that the database should be accessible by the public,” says Frieslaar.
The database handed to Saha had been deconstructed, so Saha got the original database architect to reconstruct it. The organisation is hoping to make it available to the public in March.
The original PAIA application for the database was lodged in 2009. These struggles for access to information are often long-term battles. Once a PAIA application is lodged, the party has 30 days to respond, either granting or denying access to the records.
When a PAIA application is denied, the applicant can lodge an internal appeal, which has to be decided within 60 days. But the internal appeal process is, in effect, just asking the same party for the same documents a second time.
“If the party denies access, you end up having to go to court,” says Frieslaar. But it can take four to six months before you can even file papers with the court because of the internal appeals process.
Saha vs the Reserve Bank
Non-profit research group Open Secrets’ Hennie van Vuuren, author of Apartheid Guns and Money: A Tale of Profit, worked alongside Saha in 2014 to launch the initial PAIA application that will end up at the appeal court. He says the struggle for access to the Reserve Bank’s records has been a “journey of some years”.
Open Secrets, in conjunction with Saha, submitted more than 50 separate PAIA requests to various government departments and state institutions in 2014. They received a blanket denial from the Department of State Security and the Reserve Bank.
Saha eventually took the matter to the Johannesburg high court, filing papers in April 2016. The matter was heard in 2018, when Saha was handed the cost order.
Frieslaar says the repercussions of the judgment have been “enormous”. “It starts with rumours,” she says. “Will Saha survive? Is Saha closing down?”
Van Vuuren says the cost order against Saha presents a fundamental risk, making other public interest organisations afraid to challenge attempts to maintain secrecy.
Frieslaar agrees, saying another negative judgment will signal to other organisations that perhaps they need to compromise on their public interest mandates, because of what happened to Saha. “We don’t want that story to be the story,” she says
Van Vuuren describes the Reserve Bank’s response to the application as strong-arming and says the bank is intent on “protecting secrecy”. He says its actions have “undermined the institutional integrity of the bank”.
He says this legal battle is not just about particular records. It is about the larger principle of transparency. “The bank argued that it was not a public body and that PAIA did not apply to it, which is extraordinary. These are men who are used to doing things behind closed doors. That culture has not simply disappeared postapartheid. We really don’t know what’s in those records,” he says.
The bank should not be beyond the reach of public interest. The appeal is another chance to underline this principle.
Open Secrets is interested in the economic network that aided and abetted the apartheid state through “sanctions-busting and other economic crimes”, says Van Vuuren. Any money that left South Africa to pay for weapons would have needed approval from the Reserve Bank. “They would have records of this from the time. Those records are of public interest.”
Frieslaar says the particular records sought from the Reserve Bank are so old they fall outside the limitations of classified or confidential information, but remain sealed because South Africa does not have an automatic declassification system.
The bank has said it would take up too many resources to find the 43 boxes, estimating it could take between 86 and 129 days. Saha estimates 14 days, and Frieslaar says they have offered to come in and do the work themselves under supervision.
Why the secrecy?
Saha narrowed the PAIA request to eight individuals. The Reserve Bank’s refusal to release records on these individuals has left many pondering why the bank wants to maintain the secrets of people alleged to have been involved in economic crimes under apartheid.
Van Vuuren says the Reserve Bank has gone to “extraordinary lengths” to make sure these eight individuals are able to protect their legal rights. He cites one example of the Reserve Bank briefing lawyers in Italy to meet with convicted mafia associate Vito Palazzolo, who was in jail at the time. Palazzolo was an Italian banker who has served jail time for connections to drug smuggling. He lived in South Africa for many decades from the mid-1980s and is one of the eight.
The others include an apartheid-era spy, a chemical weapons expert, an apartheid-era minister, an alleged arms dealer, an alleged gold smuggler and one Italian businessmen allegedly linked to the apartheid state.
The Reserve Bank’s Ziyanda Mtshali said they have been advised that it would be inappropriate to debate issues presently the subject of an appeal. “The approaches adopted by Saha and the Reserve Bank are set out in the affidavits and heads of argument that have been filed by the respective parties and forms part of the appeal record,” says Mtshali. “There is thus no need to deal with matters in any other forum other than a court of law.”