Geraldine Frieslaar and Hennie van Vuuren| Daily Maverick | 5 June 2020|
Good news and glimmers of hope are in short supply these days. This is perhaps all the more reason to take note of a recent precedent-setting court judgement. In the past week, feisty pint-sized civil society organisations prevailed against the mighty South African Reserve Bank. It was a judgment that significantly boosts our hard-won democratic right to know.
In a judgment handed down by the Supreme Court of Appeal (SCA) on Friday 29 May, the South African History Archive (SAHA) prevailed in a six-year battle for access to information. SAHA and the South African Reserve Bank (SARB) faced one another before the SCA in Bloemfontein in an epic battle centred on the release of apartheid-era records. SAHA was represented by an indefatigable legal team led by Lawyers for Human Rights and advocates Geoff Budlender SC, Nasreen Rajab-Budlender and Frances Hobden.
SAHA’s appeal was not only to ensure access to these records, but also to ultimately secure the right of access to information for all South Africans – something that was on shaky ground after an earlier judgement by the South Gauteng High Court.
The SCA judgment, upheld with costs, is particularly important as it signals a tremendous victory for democracy and our constitutional right to access information. This is hopefully the final instalment in a long saga which started in 2014 when SAHA initially made requests to the Reserve Bank to access information. This request was undertaken in consultation with Open Secrets, which investigates the links between economic crime and human rights abuses.
The records in question all related to serious economic crimes during apartheid. The Reserve Bank is the holder of a treasure trove of information concerning the economic machinations of the apartheid regime. While we rightly examine the role of the police and the military during apartheid, there is comparatively little understanding of the important bureaucratic function played by institutions such as the Reserve Bank. As a pillar of the regime’s economic system, the bank authorised and provided oversight on money flows meant to procure the weapons and clandestine goods without which PW Botha’s regime would have crumbled.
As far as we are aware, there has been no successful effort to ensure that the SARB reveals part of its records that could shine a light on this history. Instead, the public has been led astray in recent years by misguided legal skirmishes led by Public Protector Busisiwe Mkhwebane against SARB, which seemed more directed by factional party politics than genuine public interest.
Such politically motivated legal battles have undermined genuine efforts to shed light on South Africa’s past. The extent to which institutions like the SARB were embedded in the apartheid system underscores the importance of accessing information held in their archival vaults.
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