Defending the right to access apartheid records
Lawyers for Human Rights (LHR) is in the Johannesburg High Court today, representing Open Secrets in its substitution as a party in a fight for apartheid era records held by the Department of Defence and Military Veterans (the Department).
This is an almost 10 year long fight which relates to information that was requested about the policies and practices of the apartheid government during the height of apartheid-era international arms sanctions busting. The ninetyfive folders sought contain information concerning dozens of secret apartheid-era military procurement projects as well as visits and liaison with people and organisations in countries such as Argentina, China, France, Israel, Paraguay, Portugal, Switzerland, Taiwan and the USA. These are clearly of enormous public importance for understanding South Africa’s violent past. These records were and still are needed by organisations such as Open Secrets to piece together the story of what happened, why and who is accountable. The importance of this material is central to truth telling and exposing hidden histories as Open Secrets has shown in the book Apartheid Guns and Money.
This fight for access to apartheid era records started in 2013, when the South African History Archive Trust (SAHA) requested access to various documents in the possession of the Department. Between 2015 and 2016, the Department furnished some declassified records, but informed SAHA that it had taken the decision to exclude other records. This request was undertaken in consultation with Open Secrets, a civil society organisation focused on investigating the links between economic crime and human rights abuse.
Following several attempts at engaging with the Department in order to access these records, LHR instituted an application to compel the Department to furnish the refused records. On 21 January 2021, the application was heard at the Johannesburg High Court, and SAHA obtained a court order for the Department to provide SAHA with the records. After over 6 more months of LHR attempting to enforce the court order and get the records from the Department, the Department applied to have the court order rescinded. Unfortunately, in the intervening time, the SAHA Trust was dissolved and therefore could no longer oppose the Department’s rescission application. As a result, in November 2021, SAHA notified the Department that Open Secrets, its long-time partner on these requests, would be substituted for SAHA in the court case.
The Department then launched an application to oppose the substitution, on the basis that the requirements for substitution is not met and that if it were to be allowed, the Department will be prejudiced. Open Secrets and LHR disagree: Open Secrets has a direct and substantial interest in the case and the substitution of SAHA by Open Secrets will not prejudice the Department since the Department will be in the same position if Open Secrets were initially joined as a party to the case. This information is requested for the public interest and it should be made available to the public.
Charné Tracey, LHR Attorney, noted that “Overcoming and succeeding in this application is essential for the main issue to be resolved and, ultimately, for promoting the constitutional right to access to information. The right to access to information fosters openness and exposes corrupt government practices – this is pertinent considering South Africa’s history which is marred by the culture of secrecy and unresponsiveness in public institutions.”
Hennie van Vuuren, Director at Open Secrets, noted that, “This is an important step in an epic decade long battle for openness. It is scandalous that our public institutions keep secrets the records of collaborators with a crime against humanity. The contents of the 95 files must be disclosed, in full, to ensure both a reckoning with our past and send a signal to the Department of Defence and others that we can no longer tolerate a culture of secrecy in our Constitutional democracy. We are proud to work with LHR and a stellar legal team to challenge this injustice.”