FOIP litigation

 

Since 2001 the Freedom of Information Programme (FOIP) has been pushing the boundaries of freeedom of information speciffically through the use of South Africa's Promotion of Access to Information, 2000 (PAIA). As a part of its struggle to ensure increased compliance with PAIA FOIP has in the past utilised its right of recourse to the court system in terms of section 78 of PAIA.

Below is a list of litigation, generally placed in chronological order, that the FOIP team has been involved in. For further information on any of these cases feel free to contact the FOIP team.

 

Pending Litigation

 

South African History Archive v South African Reserve Bank and Govenor of the South African Reserve Bank Case No. 5698/2016, High Court of South Africa, Gauteng Division, Johannesburg

Initiated as a request under SAH-2014-SRB-0007 for copies of records that relate to abuses of the financial rand, corruption and foreign exchange transactions under apartheid, including loans and permissions for transfer of funds outside the country.

Download Notice of Motion

Download Founding Affidavit

 

South African History Archive v Minister of Defence and Deputy Information Officer: Department of Defence Case No. 5600/2016, High Court of South Africa, Gauteng Division, Johannesburg

Initiated as a request under SAH-2013-DOD-0008 and SAH-2013-DOD-0011 for copies of records that relate to the historical activities of the military under apartheid, specifically procrument practices of the apartheid military, and joint military and police deployment under apartheid.

Download Notice of Motion

Download Founding Affidavit

Download Confirmatory Affidavit

 

South African History Archive v Auditor General and Deputy Information Officer: Office of the Auditor General Case No. 10530/2016, High Court of South Africa, Gauteng Division, Johannesburg

Initiated as a request under SAH-2015-OAG-0004, SAH-2015-OAG-0005 and SAH-2015-OAG-0006 for copies of reports that would shed light on to practices and policies during the final phase of  the apartheid regime (1976-1994), which may have enabled economic crime and corruption. 

Download Notice of Motion

Download Founding Affidavit

 

South African History Archive v The South African Reserve Bank and another  Case No. 14466/2015, High Court of South Africa, Gauteng Division, Johannesburg

Initiated as request under SAH-2014-SRB-0004 for records obtained by the South African Reserve Bank as evidence of investigations of abuses of the financial rand from the time of its introduction from 1 September 1985 to the time it was abolished in March 1995. After the initial request was denied outside of the time periods allowed for in terms of PAIA, SAHA proceeded to launch an application at court to compel the South African Reserve Bank to release the records.

Download the Notice of Motion

Download the Founding Affidavit 

Download the Notice of Intention to Oppose 

 

South African History Archive v Minister of Justice and Correctional Services and Deputy Information Officer: Department of Justice and Correctional Services Case No. 44670/2014, High Court of South Africa, Gauteng Division, Johannesburg

Initiated as requests under SAH-2013-DOJ-0007, SAH-2013-DOJ-0008, SAH-2013-DOJ-0009, SAH-2013-DOJ-0010, SAH-2013-DOJ-0011, SAH-2014-DOJ-0002 and SAH-2014-DOJ-0005 for records in the Department's possession. SAHA proceeded to launch cluster litigation in this matter in order to avoid duplication of costs.

Download Notice of Motion and Founding Affidavit

 

South African History Archive v Minister of Justice and Correctional Services and Deputy Information Officer: Department of Justice and Correctional Services Case No. 33696/2014, High Court of South Africa, Gauteng Division, Johannesburg

Initiated as a request under SAH-2013-DOJ-0013 for the transcripts of hearings conducted by the Truth and Reconciliation Commission in terms of section 29 of the Promotion of National Unity and Reconcilliation Act, 1995 (section 29 transcripts). After the initial request was denied SAHA lodged an internal appeal in terms of section 75 of PAIA to the Minister of Justice and Correctional Services who did not respond to the appeal and who is therefore deemed to dismissed the appeal. SAHA has since proceeded to launch a court application to force the Minister and Department to release all the s29 transcripts.

Download Notice of Motion and Founding Affidavit

 

South African History Archive v Minister of Defence Case No. 51906/2006, High Court of South Africa, Transvaal Provincial Division

Initiated as a request under SAH-2005-DOD-0344, SAHA was seeking records on military intelligence files, including records relating to Rhodesia/Zimbabwe, on the behalf of a requester John Seiler, who unfortunately subsequently passed away in 2006.

Although the case was heard on 13 March 2008, the judge has failed to hand down a judgment as of today. This issue has been taken up with the JSC.

 

Finalised Litigation

 

South African History Archive v Minister of Justice and Correctional Services and Deputy Information Officer: Department of Justice and Correctional Services Case No. 39650/2015, High Court of South Africa, Gauteng Division, Pretoria

Initiated as a request under SAH-2009-DOJ-0013 for the Truth and Reconciliation Commission's victims' database (TRC database). Despite the fact that the Minister of Justice granted SAHA's request in 2009,  the department had failed to provide the datebase in a complete and useable format, which resulted in an application been brought to force the department to do so. This matter was settled through an out of court settlement agreement.

Download Notion of Motion

Download Founding Affidavit

Download Confirmatory Affidavit of G Razzano

Download Confirmatory Affidavit of T Erasmus

Download Settlement Agreement

 

City of Cape Town v Sanral and Others Case No. 20786/2014, Supreme Court of Appeal of South Africa, Bloomfontein

SAHA was one of the eleven civil soci­ety, aca­d­e­mic and media groups that joined forces to chal­lenge a threat to open jus­tice and democ­racy in South Africa. The threat arose from a ret­ro­gres­sive High Court judg­ment granted in 2013. The organ­i­sa­tions had disputed the judgment's con­sti­tu­tion­al­ity at the Supreme Court of Appeal (SCA), fol­low­ing their admis­sion as friends of the court (amici curiae). For more information regarding this application see the press release issued on SAHA's website.

 
 
 
Right2Know Campaign and South African History Archive v Minister of Police and National Deputy Information Officer: SAPS Case No. 32512/13, High Court of South Africa, Gauteng Division, Johannesburg

Initiated as a request under SAH-2012-SAP-0008, SAHA, on behalf of the Right2Know Campaign (R2K) submitted a PAIA request to the South African Police Services (SAPS) in October 2012 for a record listing sites identified as national key points, in terms of the National Key Points Act, 1980. The request was denied and the internal appeal dismissed, SAHA and R2K therefore applied to the High Court of South Africa, Gauteng Division, Johannesburg for an order compelling the release of the record under PAIA. The court held, in December 2014, that the decisions to withhold access to the records were unlawful and unconsitutional and ordered that the record be provided within 30days - more information, including legal papers and the list of national key points released to SAHA, available on the SAHA PAIA Tracker

 

Mail & Guardian Centre for Investigative Jounalism v Minister of Public Works Case No. 67574/12, High Court of South Africa, Gauteng Division, Pretoria

SAHA served as amicus curia in the Mail & Guardian Centre for Investigative Journalism's (amaBhungane) court application, brought to force the Department of Public Works to release records on the upgrading of the President's Nkandla Homestead under a PAIA request. In April 2014 the High Court of South Africa, Gauteng Division, Pretoria ordered the department to provide amaBhungane with the records requested - more information, including legal papers, available on amaBhungane's website.

 

The Trustees for the Time Being of the South African History Archive and The Southern African Centre for the Survivors of Torture v The Presidency and Others Case No. 3628/10, High Court of South Africa, Gauteng Division, Pretoria

This case related to the refusal of the Presidency to two separate PAIA requests SAH-2009-PRE-0007 and SAH-2009-PRE-0024. These requests were for either written or other records relating to the terms of reference of the Zimbabwe General's Report commissioned by the Presidency, which the Presidency now claims does not exist (in spite of costing tax payers almost R700 000).

 

The South African History Archive v the National Arms Control Committee and OthersHigh Court of South Africa, Gauteng Division, Pretoria

Initiated as a PAIA requests SAH-2006-DFA-0017, SAH-2007-DPL-0001 and SAH-2008-DPL-0024 submitted on behalf of the Ceasefire Campaign for a multiplicity of report types which the National Conventional Arms Control Committee are required to produce. The municipality did not respond to the requests and they were deemed to have been refused.

The case was set down to be heard on 17 May 2010. However, after the Respondents failed to appear in court, SAHA reached an out of court settlement with the Respondents after which the records were released to SAHA and made publicly accessible

 

Albutt v the Centre for the Study of Violence and Reconciliation and Others Case No. 54/09, Constitutional Court of South Africa

Due to delays from the Presidency in facilitating engagement, the interdict under Case No. 15320/09 bellow was later challenged in the Constitutional Court by one of the pardons applicants in order to restart the consultation process.

SAHA, acting as fifth respondent, was successful in challenging the application and the interdict remains in place.

 

Centre for the Study of Violence and Reconciliation and Others v President of the Republic and Others, Case No. 15320/09, High Court of South Africa, Gauteng Division, Johannesburg

In 2009, as part of SAHA's work with the Pardons Coalition, SAHA - as Fifth Applicant - successfully sought an interdict in the High Court that prevented the President form considering pardons under the Special Dispensations Process until adequate consultations had been facilitated with victims.

 

Brümmer v Minister for Social Development and Others  Case No. 25/09, Constitutional Court of South Africa

SAHA was not involved in this case as a result of any particular PAIA request submitted by SAHA, but acted as first amicus in order to alert the court of the difficulties of trying to apply to court within the thirty days required by PAIA.

Heard on 26 May 2009, the applicant was successful in the Constitutional Court and the period for applying to court for relief in relation to an adverse decision under PAIA was extended to 180 days.

 

The Cradock Four and David Forbes vs Minister of Justice Pretoria Supreme High Court

This case was brought against the Department of Justice and Constitutional Development as result of a request submitted by SAHA under SAH-2005-DOJ-0002 for documents from the Truth and Reconciliation CommissionAmnesty Hearing concerning the Cradock Four.

The case was never heard in court and resulted in an out of court settlement, on the morning the case was in fact scheduled to be heard, 14 September 2006.

 

The South African History Archive Trust v the Minister of Arts, Culture, Science and Technology, Dr GA Dominy and Dr RM Adam Case No. 563/2002, High Court of South Africa, Transvaal Provincial Division

This case was brought against the department and the National Archives' representative as a result of the requests submitted by SAHA under SAH-2001-NAR-0022 and SAH-2002-NAR-0047.

The case was never heard in court and resulted in an out of court settlement. The initial settlement agreement was unfortunately reneged on by the department, but the matter was finally settled after a further agreement was entered into on 5 December 2003.

 

Mittal Steel SA Ltd v Hlatshwayo Case number. 326/05, Supreme Court of Appeal of South Africa

SAHA originally assisted the requester (Hlatshwayo) in submitting a request under SAH-2002-YSK-0083 for records relating to ISCOR labour matters and the treatment of their workers from 1965 to 1973. ISCOR denied access to the records on the grounds that they were now a private body, whereas the request was for public records. SAHA then passed the case on to the Open Democracy Advice Centre who, in a seminal case in PAIA litigation, won Hlatshwayo access to the records, with the court for the first time expressly laying down the test for what constitutes a public body in PAIA.

 

The South African History Archive Trust v The Chief, South African National Defence Force, Major HS Pretorius NO, the Secretary for Defence, the Department of Defence and the Minister of Defence, Case No. 15982/2002, High Court of South Africa, Transvaal Provincial Division

This case was brought against the department as result of denial of access under requests submitted by SAHA under SAH-2001-DOD-0008 and SAH-2002-DOD-0001 which sought to reveal Military Intelligence files dealing with Anti-Conscription groups during the aprartheid era.

The case was officially withdrawn from the court on 17 September 2002 when an out of court settlement was reached.

 

The South African History Archive Trust v the Minister of Justice and Constitutional Development and David Porogo NO, Case No. 33394/2002, High Court of South Africa Transvaal Provincial Division

This case was brought against the department as a result of requests submitted by SAHA under SAH-2002-NIA-0051, SAH-2002-DOJ-0048, SAH-2002-DOJ-0050 and SAH-2002-DOJ-0076. It has been referred to as the case of the '34 boxes', which sought to uncover the chain of custody of such documents.

An out of court settlement was reached, but this was reneged on. The court case was then set down again for January 2004. Another out of court settlement was signed on 17 August 2004. Then, on 15 November 2004 Vusi Pikoli authorised the release of some documents to help facilitate settlement.