A high court judgement has left the South African History Archive (SAHA) reeling following a cost order which could put the organisation out of business.
Protecting and preserving historical records, particularly those relating to the apartheid regime and activism against it, has been the cornerstone of SAHA’s work, but the non-profit now faces possible bankruptcy.
On March 19, two days before Human Rights’ Day, Judge Elias Matojane of the Johannesburg high court handed down a cost order against SAHA after he dismissed the organisation’s appeal to access information held by the South African Reserve Bank (SARB).
SAHA made a request to the bank for apartheid-era records in terms of the Promotion of Access to Information Act (PAIA).
The organisation, which was established by anti-apartheid freedom fighters in the 1980s, then approached the high court in 2016 after the SARB refused to hand over records of six people who are alleged to be involved in busting sanctions that were imposed by the United Nations. Some of the records, the bank said, could not be found.
Although cost consultants are still calculating the expense of the SARB’s litigation, spokesperson Ziyanda Mtshali confirmed the bank had spent R2.7-million on the case.
“To pay costs is an eventuality I’m not willing to consider. I can’t imagine what it would mean for SAHA and all the work that’s been done, but also what it means for general access to information activists,” Nobukhosi Zulu, coordinator of SAHA’s freedom of information programme, said.
SAHA had made the access to information requests on behalf of Open Secrets, a non-profit which researches apartheid economic crimes. The records would be used to inform a book, Apartheid Guns and Money, which was authored by Open Secrets founder Hennie Van Vuuren and published last year.
But Van Vuuren maintains that records could carry significant weight in uncovering some of the still secretive deals that kept the apartheid regime running even when it was meant to be boycotted.
“The trail of documents that go in and out of the bank would be incredibly important to help us understand the nature of many of the illicit sanction-busting transactions during apartheid: of who the parties were and the trail of money laundering around the globe,” he said.
“Every single illicit transaction, meaning money that was sent abroad to bust sanctions and to buy weapons, all had to be approved by the bank,” he added.
The requested records dealt mainly with Brigadier Johann Blaauw, Robert Oliver Hill and Vito Palazzolo and their alleged links to gold smuggling, weapons trading, or other sanction-busting activities.
But in his judgement, Judge Matojane found that the PAIA application made by SAHA was “unreasonably vague” and that the three men had not been invited to participate in legal proceedings that may reveal their financial transactions.
Zulu said, however, that SAHA had included names, dates, and specific themes to narrow down the search.
“I think the Reserve Bank also failed to remember that in terms of PAIA if someone asks for information that you can help with, you have a duty to make sure you can assist them and direct them towards the correct information,” she said.
She also said that Palazzolo had been notified of the request, but had not been invited to oppose it.
Palazzolo – infamous for his links to apartheid-era defence minister Pik Botha and alleged attempt to help the apartheid SA defence force turn diamonds into military hardware – is already in prison in Italy, where he is serving time under the country’s strict mafia prison regulations.
Hill, who left South Africa in 1998 while facing 500 fraud charges, some related to forged Eskom bonds, was also notified but not invited to participate, Zulu said. She argued that Blaauw, a businessman alleged to be involved in the global arms trade during apartheid, is deceased and the organisation therefore could not invite him to join..
SAHA now believes that Judge Matojane could have ordered the Reserve Bank to release some of the records instead of making a blanket refusal. But Matojane repeated the Bank’s claim that the records do not include evidence that Hill, Blaauw, or Palazzolo were involved in smuggling or fraud.
The cost of access to information
Cost consultants are now working to calculate how much the Reserve Bank spent on its lawyers, and this will indicate to the court what SAHA should pay. But the organisation plans to file a motion of notice to appeal before April 12, Zulu said.
What has been striking throughout the case, she said, was the Bank’s “defensive” attitude to SAHA’s request for access to information.
As of August, 2014, SAHA had made 14 requests for apartheid-era records to the bank. In a letter from Werkmans, the attorneys representing the SARB, to SAHA’s lawyers, the bank said that it found the organisation’s conduct to be suspicious.
“It it not apparent why numerous requests are required to be lodged to our client,” the letter from the Bank’s attorneys reads.
It continues: “Our client is concerned that the approach by your client to the deluge of requests for information is vexatious as it is a designed attempt to intimidate our client.”
Van Vuuren and Zulu both believe that the bank reacted defensively to SAHA’s request for information, because it may be implicated in wrongdoing during apartheid.
“The records could show that the Reserve Bank investigated and found that these people had done what they were accused of doing and did nothing about it. They don’t want that information coming out, but that shouldn’t matter because if the bank has moved forward it wouldn’t implicate them in any way,” Zulu said.
“If we were really working under new leadership they wouldn’t feel attacked by us asking questions about something that happened in apartheid times,” she added.
But SAHA may have jurisprudence in its corner. In 2009, the Constitutional Court ruled in favour the Biowatch Trust, an environmental watchdog. Biowatch had appealed a high court judgement, which declared it must pay the costs of the state’s counsel in the case. It had asked state bodies, such as the agriculture department, for access to information, but it had not fulfilled all the required obligations in its application.
As a result, the high court dismissed Biowatch’s case, and when it delivered the cost order, Biowatch resolved that the Concourt should hear their appeal. In its judgement, the Concourt said that a cost order had a “chilling effect” if it harmed access to justice on constitutional issues.
“The high court could have shown its disapproval in less drastic ways. The manner it chose was demonstrably inappropriate on the facts, and unduly chilling to constitutional litigation in its consequences. The appeal must be upheld and the governmental authorities must be ordered to pay the costs incurred by Biowatch in the high court and in this court,” the Concourt said in its judgement, written by Justice Albie Sachs.
Mluleki Marongo, a PAIA expert and advocacy officer at Right2Know, said that SAHA’s application, being an access to information issue, is Constitutional litigation, and is protected by the Concourt judgement. He also added that PAIA places significance on the public interest, which Judge Matojane failed to engage.
In his judgement, Matojane summed up public interest in the matte, saying the harm the Bank would incur by diverting resources to hunt down the records SAHA requested would outweigh the public interest motivation.
“In my view, the public interest in the disclosure of the record does not outweigh the harm contemplated… especially given the fact that the PAIA pertains to documents collected by the SARB decades ago,” Matojane said in his judgement.
SAHA, in its founding affidavit, had offered to send a team of people to the Reserve Bank to assist in finding the records. They received no affirmative response from the Bank, however.
Both Van Vuuren and Zulu now worry that the judgement could spread fear among activists to pursue litigation because lawyers may advise them that a cost order could leave them bankrupt, following this judgement.
Zulu said that SAHA would file its appeal on the costs order next week, but it is still consulting with lawyers on other parts of the judgement that can be challenged. If the judgement is left unchallenged, Zulu fears the precedent it could set.
“It would be a disaster not just for SAHA or the archive, but for activists and general freedom information work in South Africa,” she said.