[PRESS STATEMENT] Supreme Court of Appeal upholds the Freedom of Information

Date: 01/06/2020

Lawyers for Human Rights (LHR) welcomes the judgment handed down in the Supreme Court of Appeal on 29 May 2019, upholding the South African History Archive’s (SAHA) right to access  information held by the South African Reserve Bank (SARB) relating to investigations into fraud and corruption during the Apartheid era. The court upheld an appeal brought by the SAHA against the judgment by Matojane J on 19 March 2018 in the Gauteng Division of the High Court, Johannesburg.

LHR represented SAHA, an independent human rights organisation dedicated to documenting, supporting and promoting greater awareness of past and contemporary struggles for justice through archival practices and outreach, and the utilisation of access to information laws.

In August 2014, SAHA lodged a request in terms of section 11 of the Promotion of Access to Information Act (“PAIA”)  for the SARB to release “copies of any and all records, or parts of records, of any evidence obtained by the SARB at any time as part of investigations into any substantial contraventions, of failure to comply with the law in terms of 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 SARB refused to make available these documents citing amongst other reasons that, they could not find the records, they could not spend resources to look for the requested records, releasing the records created a possible risk to South Africa’s economic interests, and they could not give information relating to certain individuals who were affiliated with the fraudulent transactions.

The refusal prompted the SAHA to launch an application to the High Court to compel the SARB to comply with the requirements prescribed by PAIA and disclose the requested information. The High Court found that individuals affiliated with the illegal transactions in the records sought were not joined by the SAHA to the court proceedings; that the request by SAHA was vague and had not given sufficient particulars in its request, and that the SARB was justified to refuse access to the documents on these grounds. Accordingly, the SAHA was unsuccessful and the application was dismissed with a cost order, which threatened SAHA’s future and was in direct conflict with jurisprudential precedent by the Constitutional Court regarding public interest litigation against State entities.

The SAHA appealed to the Supreme Court of Appeal (SCA) and argued that openness is default and secrecy must be proved, that the SARB must provide evidence for its refusal in accordance with PAIA. The SARB argued that they refused to make the documents available because it was a third party and had to keep the information confidential on that basis.

The SCA found in favour of SAHA and set aside the order of the High Court. In a particularly powerful judgement, the SCA held that the SARB’s refusal to release the records was unlawful and noted:

“…refusal by the SARB on entirely spurious grounds which do not even assert the elements entitling them to withhold access supports a costs order being made against it. That response has bordered on the obstructive and is certainly not in keeping with the purpose of PAIA in its outworking of the provisions of the Constitution to promote openness and transparency. As was submitted by the appellant, the approach was redolent of the dark days of apartheid, where secrecy was routinely weaponised against a defenceless population.”

The SCA ordered that the SARB make available the requested records and notify the relevant individuals in terms of PAIA. The SARB was also ordered to pay the costs of the appeal. Jessica Lawrence, Head of LHR’s Johannesburg Law Clinic said “The outcome of the case is a victory as it promotes transparency and accountability in a democratic society and overturns a High Court Judgement that would have had a chilling effect on not only access to information but access to justice as a whole.”


For queries:

Jessica Lawrence

011 339 1960 / 082 772 9857



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