What are the limits of our right to know? An apartheid-era crookery case will provide the answer

15 Jun 2018

The South African History Archive is still trying to get information from the Reserve Bank on Vito Palazzolo, Johann Blaauw and Robert Oliver Hill.

First published by GroundUp

Three men implicated in apartheid-era crookery are at the centre of a case that will shed light on how much information the public can have access to.

Brigadier Johann Blaauw was put on trial in 1989 for extorting mining concessions. Transcripts of the trial revealed in 1994 showed that South Africa had bought tritium from Israel to build a nuclear bomb. Vito Palazzolo, a member of the Sicilian mafia, fled Switzerland to South Africa in 1986, and was protected from prosecution by National Party politicians. Robert Oliver Hill fled South Africa in 1998 while facing hundreds of fraud charges, some involving forged Eskom bonds.

The South African History Archive (SAHA), which runs a website on South African history, wanted to know more about these three men, as well as others implicated in apartheid-era crookery. So the organisation made a request, using the Promotion of Access to Information Act (PAIA), to the South African Reserve Bank. It asked the bank to release records relating to corruption and foreign exchange transactions under apartheid.

But for various reasons the Reserve Bank refused to give the records to SAHA. SAHA went to court and Judge Elias Matojane in the Gauteng High Court ruled against SAHA in March 2018. SAHA has applied for leave to appeal. This case will shed light on the information state institutions are obliged to release to the public upon request.

The request related to the financial records of at least eight influential people. Of these eight, the Reserve Bank only had information relating to Blaauw, Hill and Palazzolo. The bank declined SAHA’s request, using what are called exclusion grounds, in the Promotion of Access to Information Act.

The Court agreed with the Reserve Bank and found that SAHA was not entitled to access the requested information.

Right to be heard

A party must be joined to legal proceedings if they have a direct and substantial interest in them. The test is whether they could potentially be prejudiced by the judgment which is granted. This is a fundamental principle of our law which requires a person to have an opportunity to be heard by the court.

The court pointed out that the PAIA request related to financial transactions that the three men were involved in. SAHA alleged that this information would reveal that the men had been involved in illegal activities including fraud.

For this reason, the court found that the three men had a substantial interest in the proceedings and should have been joined. The application was dismissed.

Incidentally Blaauw is believed to be dead, it’s not clear where Hill is, and Palazzolo is in prison in Italy.

Is SAHA’s request too vague?

SAHA requested access to copies of any records which reveal evidence of substantial contraventions of the law in respect of fraud, gold smuggling and related offences.

The court found that the request was too vague and broad. This was because it did not outline the specific documents required but rather imposed a duty on the Reserve Bank to decide which documents might reveal the alleged contraventions of the law.

The Reserve Bank objected to the request on the basis that it would have to unreasonably and substantially divert its resources in order to decide which documents reveal substantial contraventions of the law. Also, it interpreted the request to mean all records related to investigations conducted by its Financial Surveillance Team into significant fraud and related offences by the men.

SAHA then reformulated its request to request all records related to investigations of fraud and other criminal activity involving the three men. But the court found that SAHA had failed to make sure its request was clear from the outset and for this reason alone its application should be dismissed.

Additional reasons for refusal

In court, the Reserve Bank raised three more reasons why the access to information request should be refused. The reasons differed in respect of each person.

For Palazzolo, the Reserve Bank refused the request because it would disclose his personal information. This is a listed exclusion ground in terms of PAIA. Here, the Reserve Bank argued that the disclosure would reveal information related to financial transactions which Palazzolo was involved in.

In terms of PAIA, a public body may refuse a request if it would disclose financial, commercial or technical information about a third party which may cause harm to the financial interests of that party. The Reserve Bank argued that the disclosure of Blaauw’s information would cause him financial prejudice. Yet Blaauw, as far as SAHA is aware, is dead.

PAIA also enables a public body to refuse a request if processing the request would unreasonably and substantially divert the resources of that public body. The information related to Hill consisted of no less than 43 archive boxes. The Reserve Bank pointed out that if it were to analyse at least two to three boxes per day it would take between 86 and 129 days to process the request. Also, the bank argued that the request would reveal information related to dozens of third parties who would also have to be notified of the impending proceedings and this would further cause a delay.

Public interest override

SAHA argued that the public interest in obtaining the information would outweigh the harm caused by any of the grounds raised by the Reserve Bank.

In terms of PAIA, a public interest override occurs if two requirements are met. First, if the disclosure would reveal a substantial contravention of, or failure to comply with, the law. Second, if the public interest in the disclosure outweighs the harm it causes.

SAHA referred to media reports by the Sunday Times which alleged that Palazzolo may have been involved in the movement of covert funds to finance nuclear and other weapons programmes of the apartheid regime. The bank responded that it could not find an alleged internal document mentioned in a Sunday Times report that was supposedly in its possession.

SAHA also alleged that Blaauw was present at a meeting in 1976 when PW Botha (then a senior cabinet member) concluded a deal with the Israeli government to provide South Africa with a certain amount of uranium in return for tritium.

The Reserve Bank argued that SAHA only sought the information in order to document its findings in a book. In the bank’s view this was not a pressing issue. It also argued that SAHA was not compiling a formal report or memorandum but merely a speculative commentary.

The court accepted these contentions. It also found that the disclosure of the information would not outweigh the harm it caused because the request related to documents collected by the Reserve Bank decades ago. It found there was no public interest in disclosing the information. It therefore dismissed the application and ordered costs against SAHA.

The cost order is surprising because the Constitutional Court has found that public interest litigants, unless their actions are vexatious and vindictive, should not have to pay costs if they lose a case.

Moving forward

SAHA is disappointed with the judgment and has applied for leave to appeal which was subsequently granted. SAHA argues that the court was wrong for various reasons. For example, PAIA does not prohibit the disclosure of personal information in all circumstances but only when the disclosure is unreasonable.

SAHA also argues that because the Reserve Bank has a duty to archive and manage public records, it could not argue that the request would unreasonably diverts its resources. SAHA also says that the court was wrong that there is not a strong public interest in disclosing information related to apartheid-era economic crimes.

Lastly, SAHA objects to the costs order on the basis that it is an established legal principle that an unsuccessful litigant in public interest litigation does not have to pay costs.

Importance of the case

The most significant aspect of the case is that the court did not find that there was a public interest in disclosing information related to alleged apartheid-era economic crimes.

The ruling is a blow to civil society organisations who seek access to such information for advocacy and accountability campaigns. The judgment also highlights the importance of joining parties to access to information proceedings where they may be prejudiced if certain information is disclosed, though it is unclear how this relates to people who are dead, in prison, or who cannot be found.

Lastly, the ruling draws attention to the need to ensure that an access to information request is clear and specifies the documentation it seeks.

But the last word on this case is still to be heard. DM

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