Legal battle for the right to access apartheid-era records continues

Lawyers for Human Rights (LHR) are fighting on behalf of a non-profit organisation, Open Secrets, for the right to access apartheid-era records held by the Department of Defence and Military Veterans.

The case is currently being heard at the South Gauteng High Court in Johannesburg.

10-Year-long battle

“This is an almost 10-year-long fight, which relates to the information requested about the policies and practices of the apartheid government during the height of apartheid-era international arms sanctions busting,” said the organisation in a statement.

Open Secrets wants access to ninety-five folders containing information about dozens of secret apartheid-era military procurement projects, visits and liaisons 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 tell the story of what happened, why and who is accountable.”

The fight for access to apartheid-era records started in 2013, when the South African History Archive Trust (SAHA) requested access to various documents in possession of the military department.

Some crucial documents excluded

Between 2015 and 2016, the department handed over some declassified records but informed SAHA that it had decided to exclude other documents.

Afterwhich there were several attempts at engaging with the department to access these records.

But those were unsuccessful, forcing the LHR to institute an application to force the department to hand over the refused records.

On 21 January 2021, that application was heard at the High Court in Johannesburg, during which SAHA obtained a court order for the department to provide the outstanding documents.

“After more than six more months of LHR attempting to enforce the court order and get the records from the department, the department then applied to have the court order rescinded,” explained Open Secrets.

SAHA trust dissolved, dept opposes substitute

But during that time, the SAHA Trust was dissolved and could no longer oppose the department’s rescission application.

As a result, in November 2021, SAHA notified the department that Open Secrets, long-time partner on these requests, would be substituted for SAHA in the court case.

Following that, the military department then launched an application opposing the substitution because the requirements for substitution were not met. It argued that if a substitution were allowed, the department would be prejudiced.

Open Secrets and LHR disagree, saying the organisation has a direct and substantial interest in the case. They’re also arguing that substituting SAHA for Open Secrets will not prejudice the department because it will be in the same position if Open Secrets were initially joined as a party to the case.

Charné Tracey, LHR Attorney, noted, “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,” Tracey concluded.

NOW READ: FW De Klerk’s Nobel Peace prize stolen from his home