On 6 December 2018 the South African History Archive (“SAHA”) was granted leave to appeal to the Supreme Court of Appeal. Lawyers for Human Rights (“LHR”) represented SAHA in an application for leave to appeal in the matter of The South African History Archive Trust v The South African Reserve Bank 05598/16. The matter relates to the refusal of requests for information relating to fraudulent activity during apartheid.

SAHA is an organisation that makes requests in terms of the Promotion of Access to Information Act 2 of 2000 (“PAIA”) as part of its Freedom of Information Programme which uses PAIA as a tool to extend the boundaries of freedom of information in South Africa. SAHA provides public access to material that is of historic, political, social, economic and cultural importance.

In this matter, SAHA made a PAIA request to the South African Reserve Bank (“SARB”) that essentially dealt with the release of records relating to abuses of the financial rand, corruption and foreign exchange transactions under apartheid, including loans and permissions for transfer of funds outside the country. The high court application was made in relation to the refusal of this request for release of the information relating to investigations into the alleged fraudulent activity of several individuals.

On 4 August 2017 the matter was heard in the high court. The Court dismissed the application with costs on 19 March 2018 in a disappointing judgment which LHR feels fails to acknowledge the importance of access to information in a democratic society.

SAHA argued that the information should be released in the public interest. The SARB relied on two grounds of exclusion to override the public interest, namely the possible abuse of information gathering powers and the prejudice to the future supply of information to the SARB. The court held that “The public interest in the disclosure of the record does not outweigh the harm contemplated in the exclusion ground especially given the fact that the PAIA request pertains to documents collected by the SARB decades ago”.

SAHA challenged the previous judgment on the basis that there is a reasonable prospect that another court will find that the Court erred in deciding on several issues of law and fact. LHR and SAHA believe that the importance of this matter in setting out the right to access to information is vital in the promotion of democracy in South Africa and will therefore be pursuing the appeal in the Supreme Court of Appeal in 2019.

For more information contact:

Prashianne Maharaj

Phone: 011 339 1960

E-mail: prash [at] lhr [dot] org [dot] za

Website: www.lhr.org.za