TRC Final Report

Volume 1

Chapter 8

Subsection 3

■ THE LEGAL FRAMEWORK AND ITS MANIPULATION

Apartheid and official secrecy

24 Perhaps all governments are, to a greater or lesser extent, uncomfortable with the notion of transparency, preferring to operate beyond the glare of public scrutiny. In apartheid South Africa, government secrecy was a way of life. The fundamental guideline governing public access to state records was provided in section 9(6) of the 1962 Archives Act. This established that access was a privilege to be granted by bureaucrats, except where specific legislation recognised the right of access to specific categories of records. The number of record categories covered by such legislation was limited to, for instance, records older than thirty years in the custody of SAS and deceased estate files in the custody of Masters of the Supreme Court.

25 The discretionary power enjoyed by bureaucrats was, in turn, severely circumscribed by a range of laws containing secrecy clauses. These included, amongst others, the Official Secrets Act, the Protection of Information Act, the Statistics Act, the Nuclear Energy Act, the Petroleum Products Act, the Criminal Procedure Act, the Disclosure of Foreign Funding Act, the Inquests Act and the Internal Security Act. Thus, information on business, foreign trade and sanctions, capital punishment, conscientious objection to military service, corruption and fraud, detention without trial, liberation movements, mental health institutions, military action (particularly beyond South Africa’s borders), nuclear power and weapons, oil supplies and reserves, police involvement in repression, prisons, the territorial ‘consolidation’ of homelands and weapons procurement and development was, in varying degrees, circumscribed.

26 A range of tools served the obsessive secrecy of the state across the legislative, judicial and executive functions. The Commission’s probe into record keeping by the security establishment (recounted later in this chapter) revealed an almost claustrophobic culture of secrecy whose transformation requires concerted action. But the most effective tool, ultimately, was the selective destruction of memory, and it is in this context that the destruction of state records must be considered.

Destruction of state records: parameters and processes

27 Section 1 of the Archives Act of 1962 charged the Director of Archives (the chief executive official of SAS) “with the custody, care and control of archives...”⁴ . ‘Archives’ were defined as:

[A]ny documents or records received or created in a government office or an office of a local authority during the conduct of affairs in such office and which are from their nature or in terms of any other Act not required then to be dealt with otherwise than in accordance with or in terms of the provisions of this Act.

28 The Archives Act provided the SAS with wide-ranging powers over the management of state records from the moment of their creation or acquisition. Other provisions of the Archives Act elaborated on specific aspects of records management: the physical care of records; their classification according to an approved system; their conversion into microform, and their accessibility, inspection and ultimate disposal.⁵ In comparison with the archival legislation of other countries, the effective powers enjoyed by the SAS over the active records of the state were amongst the most extensive of any national archive service in the world.

29 The legal disposal of state records involved either their transfer into the custody of an SAS repository or their destruction in terms of a disposal authority. Until 1979, it was the responsibility of the Archives Commission, a statutory body appointed by the government minister responsible, to authorise the destruction of state records. While this authority had been vested in the Archives Commission since 1926, by the 1960s it appears to have become a ‘rubber-stamp’ for recommendations made by the Director of Archives. A 1979 amendment to the Archives Act recognised the de facto situation by empowering the Director of Archives to authorise the destruction of documents. Section 12 of the Act made it a criminal offence to damage a state record wilfully, or to remove or destroy such a record otherwise than in terms of the Archives Act or any other law.