TRC Final Report

Volume 1

Chapter 8

Subsection 4

Challenging the ambit of the Archives Act

30 The authority of the Archives Act over specific categories of state records was regularly challenged by state structures. These challenges are crucial to understanding what constituted ‘unauthorised destruction’, and some of them defined the terrain on which the mass destruction described later in this chapter took place.

31 As soon as the Archives Act had been passed, it was challenged from several quarters. In 1962, there were four challenges, two of which were to prove highly significant. In that year, the Department of Justice argued that ‘non-prescribed’ records kept by magistrates were ‘from their nature’ not subject to the operation of the Archives Act. In the same year, a public service inspector argued that active or current records in government offices were similarly excluded ‘from their nature’. State legal opinions rejected these arguments and confirmed the applicability of the Act to state records from the moment of their creation or acquisition.

32 Although unsuccessful, these challenges exposed the vulnerability of the Archives Act to divergent interpretations of the words ‘from their nature’. It is not clear what the Act’s drafters intended to exclude by these words although, in a speech to the Senate on 31 January 1962, the Minister of Education, Arts and Science indicated that the words were designed to accommodate the management of secret records.⁶ It was a loophole that would later be ruthlessly exploited by state bodies seeking to avoid the strictures imposed by the Archives Act.

33 In 1978, all government departments received guidelines, signed by the Prime Minister, for the protection of classified information (EM9-12). The guidelines empowered department heads to authorise destruction outside the ambit of the Archives Act. The guidelines did not explicitly challenge the authority of the Archives Act; they simply authorised destruction without mentioning the Archives Act at all.⁷ The NIS updated the guidelines in 1984⁸ under the State President’s signature.

34 It is not clear how widespread or stringent the application of the guidelines was but, certainly within the security establishment, they were implemented rigorously. SAS, however, only became aware of their existence in 1991. This is confirmed in letters addressed to the Commission by four former directors of the SAS. The SADF had implemented similar guidelines from at least 1971. Like its civilian counterpart, the SADF Archives appear not to have been aware of the existence of the guidelines in question.

35 The more recent debate on the destruction of records was thrust on the nation with the widely publicised disclosure in 1991 that the NIS had destroyed the sound recording of the meeting between Nelson Mandela and PW Botha held in 1989. SAS challenged the legality of the destruction on the grounds that the Director of Archives had not authorised it. On 10 December 1991, the State President’s Office secured a state legal opinion⁹ indicating that ‘sensitive’ documents – those requiring secrecy – were in their nature not ‘archives’ and therefore not subject to the Archives Act. Subsequently NIS also acquired a state legal opinion¹⁰, which not only confirmed the previous one but also argued that sound recordings, because they are not ‘written’ documents, are not in their nature ‘archives’. These opinions had alarming implications: any state record regarded as ‘sensitive’ could be destroyed by the body holding it without even consulting with the Director of Archives.

36 A crucial development in the systematic destruction of ‘sensitive’ records occurred on 3 July 1992. Following the enquiry of the Kahn Commission into Special Secret Projects, the then Minister of Justice and National Intelligence, Mr Kobie Coetsee, authorised the destruction by the NIS of financial and related records outside of parameters laid down by Treasury.

37 According to guidelines for the disposal of ‘state sensitive’ records approved by Cabinet on 2 June 1993, all ministers were empowered to authorise similar destruction.¹¹ These guidelines had their origin in meetings of NIS top management in 1990 and 1991, where it was decided that the NIS’s own destruction guidelines would be used as a point of departure for the preparation of government-wide guidelines. The proposal was taken to the State Security Council which subsequently secured Cabinet approval for the guidelines. In addition to the provision for financial records, the guidelines authorised departmental heads to destroy all categories of ‘state sensitive’ records that met certain loosely defined criteria.

38 It is difficult to assess the impact of these guidelines outside the security establishment. The evidence suggests that implementation was extremely uneven and was directly shaped by the relationship of individual offices with the coercive aspects of the previous administration.

39 In July 1993, all government departments were advised by the Security Secretariat to destroy classified records received by them from other sources, with the exception of those constituting authorisation for financial expenditure or ‘other action’. Special mention was made of the need to destroy documentation related to the NSMS that had been developed in the 1980s.

[It] is recommended that state departments should take care that all classified documents that were not created by the department concerned be destroyed as soon as possible except in cases where the relevant document serves as authorisation for financial expenditure or other action … This applies, inter alia, to copies of documentation made available by the then security management system. (Head: Security Secretariat, July 1993)

40 This step had explicit Cabinet approval. The primary intention seems to have been to erase from government offices all documentary traces of the NSMS that had not been erased by the NIS disposal exercise of 1991 (discussed later in this chapter). The impact of the July 1993 communication was immediate and severe. Government officials across the country destroyed classified records in a sustained and systematic manner. Mr Johan Mostert, head of the Security Secretariat, sent a circular to all government departments recommending the destruction of all classified records they had received from other sources, with the exception of those constituting authorisation for financial expenditure or ‘other action’. Special mention was made of the need to destroy documentation related to the NSMS.

41 SAS disputed the legal validity of the circular, but its attempts proved futile. However, when the resultant mass destruction of records was reported in the media, Mr Brian Currin, national director of Lawyers for Human Rights, challenged the circular’s validity in the Supreme Court. He identified the respondents as the State President, the Minister of National Education, the Director of Archives and the Director-General of NIS. In his application, Currin argued that state legal opinions 299/1991 and 308/1991 were “wrong”, and that the nature of ‘sensitive’ records, including classified material, did not exclude them from the operation of the Archives Act. On 27 September 1993, all the parties reached an agreement that, in future, no state records would be dealt with otherwise than in terms of the Act, “simply by virtue of the fact that they are classified, or they are classified into a category denoting some degree of confidentiality”.¹²

42 The settlement had not, however, incorporated Currin’s broader arguments, and the state quickly showed its intention to find reasons (other than the fact of classification) to exclude ‘sensitive’ records from the ambit of the Archives Act. An inter-departmental working group prepared a draft circular to government departments providing advice on which records fell outside the ambit of the Act. Through the Director-General of National Education, the SAS sought a state legal opinion on the validity of the circular. This opinion¹³ did not refer to the Currin settlement and reaffirmed the findings of opinion 299/91, thus reviving the option of destroying ‘state sensitive’ records without reference to the Archives Act. The opinion did, however, contain the assertion that decisions on destruction should not be left to individual department heads and recommended that an advice mechanism (‘adviesmeganisme’) be created. This was never done. As late as November 1994, the NIS issued Guidelines for the Protection of Classified Information to government offices. These guidelines empowered the heads of offices to destroy classified records because they were classified, without authorisation from the Director of Archives. This was a direct violation of the Currin settlement. The Director of Archives challenged the NIS and the Guidelines were revised and re-released in February 1995. These were, de facto, an updated version of the earlier guidelines distributed in 1978 and again in 1984, both authorised by the head of state. It could be argued that the failure by the NIS explicitly to withdraw the 1984 guidelines in the wake of the Currin settlement also constituted a violation of the settlement.

43 With the April 1994 general election looming, and despite the destruction of records which had been taking place, the government of the day clearly became anxious about which state records the new government would inherit. Late in 1993, the President’s office requested an opinion from the Chief State Law Advisor as to whether representatives of his government could retain custody of certain records after April 1994. A draft memorandum preceding the formal request indicated that one of the motivations was to “keep this information out of the hands of future co-governors”.¹⁴ The records referred to were ‘gebruiksdokumentasie’ (documents in use), including cabinet minutes, and the minutes of cabinet committees, ministers’ committees and the State Security Council. At the time, none of these records had been transferred into the custody of the SAS, on the grounds that their ‘sensitive nature’ excluded them from the operation of the Archives Act. The Chief State Law Adviser indicated (207/1993 of 22 December 1993) that such records could not be removed from the state’s custody after the election in April 1994. Also in December 1993, President De Klerk referred the same question to Advocate SA Cilliers for an opinion. Advocate Cilliers responded on 13 January 1994¹⁵, confirming the Chief State Law Adviser’s opinion. Indeed, he went further, disagreeing with opinion 299/91 and its affirmation of the legality of the destruction of ‘state sensitive’ records on the authorisation of department heads. Subsequently cabinet and cabinet committee records were transferred to the SAS, albeit with a cabinet-imposed ten-year embargo on access.¹⁶ In March/April 1995, some State Security Council and related records were also transferred toSAS from offices of the former NIS. And, in December 1997, Mr Johan Mostert, general manager of the National Intelligence Co-ordinating Committee (NICOC), transferred additional material to the National Archives.