Cape Town - The South African History Archives Trust has scored a major victory in its six-year legal battle with the South African Reserve Bank over access to records that may shed light into foreign exchange fraud, Eskom bonds and gold smuggling during apartheid years.
This after the Supreme Court of Appeal (SCA) on Friday found the decisions of SARB to refuse access to the records requested by SAHAT in respect of the late Brigadier Blaauw, Robert Hill and Vito Palazzolo in terms of the Promotion of Access to Information (PAIA) application unlawful and in conflict with the provisions of PAIA.
The application arose from a PAIA request by researchers from the Open Secrets Project who are collecting material for a book.
The book plans to deal with apartheid era procurement practices and public accountability. It will include analysis of abuses of the financial rand, corruption and foreign exchange transactions under apartheid.
Acting Judge AJA Gorven said SAHAT had in August 2014 lodged a request with SARB under PAIA.
The request was for any evidence obtained by the bank into failure to comply with the law in terms of significant fraud (including fraud through manipulation of the financial rand dual currency, foreign exchange or forging Eskom bonds), gold smuggling or smuggling of other precious metals from 1 January 1982 to 1 January 1995.
The requested information was in connection with the late Giovanni Ricci, the late and former labour minister Stephanus Petrus (Fanie) Botha, Blaauw, Paul Ekon, Robert Hill, Vito Palazzolo, Craig Williamson and Dr Wouter Basson.
"The SARB failed to respond timeously but later positively refused access to the records. It stated that it was unable to locate any records for five of the named persons.
"As regards the remaining three persons, namely the late Brigadier Blaauw, Mr Robert Hill and Mr Vito Palazzolo, the request was refused," the judge said.
Gorven said this had prompted SAHAT to appeal the decision in the Gauteng Division of the High Court, Johannesburg, which dismissed the application with costs and granted leave to appeal to the SCA.
In the judgement, Gorven said the SARB did not give notice to Hill and Palazzolo as required by tbe PAIA when it refused access to their records.
"The decision to refuse access to the documents concerning Messrs Hill and Palazzolo thus lacks a valid legal basis."
Gorven also said although a search of SARB records did identify investigations during the period in question into Palazzolo, Blaauw and Hill.
The court found SARB had refused to grant access to the records saying the records constituted personal information.
In the case of Blaauw, it was said that records concerning the company of which he was a director ‘[constitute] commercial information of the company".
"There was no assertion that the disclosure would be likely to cause harm to the commercial or financial interests of the company, let alone facts put up in support of such an assertion."
Gorven said the decision to refuse access to those records was likewise subject to review.
Gorven said the appeal application was successful.
" The blanket 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 costs must therefore follow the result," Gorven added.
The judge upheld the appeal and awarded costs to SAHAT.
Gorven also reviewed and set aside SARB decisions to refuse access to the requested records.
The court ordered SARB to provide to SAHAT the requested records for Blaauw.
The judge also ordered that Palazzolo and Hill be notified of the request concerning records relating to them within 10 days.
SARB was directed to pay the costs of this application, including the costs of two counsel.
In a series of tweets, Hennie van Vuuren of Open Secrets said the judgement was a victory for openness over six years in the making.
%%%twitter https://twitter.com/SAHAnews?ref_src=twsrc%5Etfw">@SAHAnews @LHR_SA @OpenSecretsZA https://t.co/KL3TTdVBoi pic.twitter.com/8YEFMonKxq
— Hennie van Vuuren (@hennievvuuren)
"Today more (apartheid) secrets have been unlocked and the SA Reserve Bank schooled in the constitution.
This case has been lead by Advocates, who didn’t buckle under pressure and believe in the struggle for social justice: Geoff Budlender SC, Nasreen Rajab-Budlender and Frances Hobden.
— Hennie van Vuuren (@hennievvuuren) May 29, 2020
"The SCA struck down a judgment which has a chilling effect on freedom of information," Van Vuuren tweeted on Friday.
"The SARB efforts to crush @SAHAnews with a cost order have also been set aside. What an incredible victory," he tweeted.