The South African History Archive Trust v The South African Reserve Bank and Another

The South African History Archive Trust (SAHA), a non-governmental organization, requested access under PAIA from the South African Reserve Bank (SARB) to records relating to eight individuals investigated during the apartheid era (1982-1995) for contraventions of exchange control regulations, including fraud, gold smuggling, and manipulation of the financial rand. The request was lodged on 1 August 2014. SARB failed to respond timeously but eventually refused access. For five individuals, SARB claimed no records existed. For the remaining three (late Brigadier Blaauw, Mr Robert Hill, and Mr Vito Palazzolo), access was refused on various grounds under Chapter 4 of PAIA including sections 34(1) (personal information), 36(1)(b) (commercial information), 37(1)(b) (information supplied in confidence), 42(1) (economic interests), and 45(b) (substantial diversion of resources). Critically, SARB failed to notify Mr Hill and Mr Palazzolo under section 47 of PAIA before making its decision, claiming it was "under the impression" they were deceased or incarcerated and it would be "unreasonable" to notify them. Even after locating them during litigation, SARB refused to comply with section 47 and instead took a technical non-joinder point. SAHA brought a review application which was dismissed by the High Court. SAHA then appealed to the Supreme Court of Appeal.

• Whether SARB complied with its obligation under section 47 of PAIA to take all reasonable steps to inform third parties (Mr Hill and Mr Palazzolo) of the request for access to records relating to them
• Whether SARB was empowered to make a decision under section 49(2) of PAIA without having taken all reasonable steps to inform third parties
• Whether the decision to refuse access to records was ultra vires PAIA
• Whether Mr Hill and Mr Palazzolo were necessary parties to the application (joinder issue)
• Whether SARB established valid grounds under Chapter 4 of PAIA (sections 34(1), 36(1)(b), 37(1)(b), 42(1), 45(b)) to refuse access to the requested records
• Whether the public interest override in section 46 of PAIA applied

The appeal was upheld with costs, including costs of two counsel. The High Court order was set aside. The SCA declared the decisions to refuse access unlawful and in conflict with PAIA. The refusal decisions were reviewed and set aside. SARB was directed to: (a) provide the requested records concerning the late Brigadier Blaauw to SAHA; (b) notify Mr Palazzolo and Mr Hill in accordance with section 47 of PAIA within 10 days and thereafter comply with the time periods and provisions in Chapter 5 of PAIA; (c) pay the costs of the application and appeal, including costs of two counsel where used.

1. Section 49(2) of PAIA, which permits an information officer to make a decision on an access request without third party notification, applies only as a narrow exception where: (a) all reasonable steps were taken to notify the third party; (b) despite such steps, the third party was not informed; and (c) the third party did not make representations under section 48. All three conditions must be satisfied. 2. An information officer cannot rely on section 49(2) if no steps at all were taken to inform third parties, or if the failure to notify was based merely on assumptions or impressions that notification would be unreasonable, without evidence of actual attempts to locate and notify. 3. Where an information officer fails to comply with the mandatory requirement in section 47(1) to take all reasonable steps to inform third parties, any decision made under section 49(2) is ultra vires PAIA and subject to review and setting aside. 4. The audi alteram partem principle is fundamental to PAIA's scheme for dealing with third party interests, and exceptions to this principle must be construed narrowly. 5. To establish grounds for refusing access under Chapter 4 of PAIA, a public body must not only cite the relevant provisions but must assert the required elements and provide factual support (even if in general terms). Bare assertions using "stock phrases" that merely repeat statutory language are insufficient. 6. For section 34(1): The public body must establish that disclosure would be "unreasonable" disclosure of personal information, not merely that personal information is contained in records. 7. For section 36(1)(b): The public body must establish that disclosure "would be likely to cause harm" to commercial or financial interests, with supporting facts. 8. For section 37(1)(b): The public body must establish: (i) information was supplied in confidence; (ii) disclosure could reasonably be expected to prejudice future supply; and (iii) continued supply is in the public interest. Each element requires factual support. 9. Third parties are not necessary parties to an application for review of a refusal decision where the relief sought is merely an order that the public body comply with section 47 notification requirements before making any decision. Such relief restores procedural fairness and does not prejudicially affect the third parties' legal interests.

The court made strong obiter comments criticizing SARB's approach as "obstructive" and "not in keeping with the purpose of PAIA in its outworking of the provisions of the Constitution to promote openness and transparency." The court stated that the approach was "redolent of the dark days of apartheid, where secrecy was routinely weaponised against a defenceless population." These comments emphasize the constitutional and historical context of PAIA and signal to public bodies that they must approach access to information requests in good faith and in the spirit of transparency, not as an adversarial exercise in finding technical grounds for refusal. The court also noted that when PAIA speaks of "all reasonable steps" being taken, this requires actual steps, not mere consideration of whether steps would be reasonable. The judgment contains a detailed exegesis of the scheme of sections 47-49 and the various points at which third parties are given opportunities to be heard, describing how PAIA is "astute to afford third parties the right to audi alteram partem at every point of the process."

This case provides authoritative guidance on the interpretation and application of sections 47-49 of PAIA, which embody the audi alteram partem principle in the context of access to information requests. The judgment clarifies that section 49(2), which permits decisions without third party notification, is a narrow exception requiring proof that "all reasonable steps" were taken to inform third parties. A public body cannot invoke this exception based merely on assumptions or impressions that notification would be difficult or unreasonable, without taking any actual steps. The case reinforces that PAIA gives effect to the constitutional right of access to information in section 32 of the Constitution, and that the default position is disclosure unless a valid ground for refusal under Chapter 4 is established. Public bodies cannot rely on bare assertions or "stock phrases" repeating statutory language; they must assert the required elements and provide factual support. The judgment emphasizes that PAIA is intended to promote transparency and accountability, representing a break from apartheid-era secrecy, and that public bodies must approach their obligations in this spirit rather than obstructively. The decision is significant for administrative law generally in clarifying when procedural requirements are mandatory and when non-compliance renders decisions ultra vires. It also addresses joinder requirements, clarifying that third parties need not be joined where the relief sought is merely to restore procedural fairness before any substantive decision affecting them is made.