first and second respondents' answering affirmation

243 Pages·2016·4.17 MB·English

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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)
CASE NO.: 05598/16
--In the matter between:
THE SOUTH AFRICAN HISTORY ARCHIVE TRUST Applicant
and
THE SOUTH AFRICAN RESERVE BANK First Respondent
THE GOVERNOR OF THE SOUTH AFRICAN
RESERVE BANK, L KGANYAGO Second Respondent
FILING SHEET: FIRST AND SECOND RESPONDENTS' ANSWERING
AFFIRMATION AND DULY COMMISSIONED CONFIRMATORY AFFIDAVIT OF
ELSIE DU PLESSIS ("JDJI3")
PRESENTED HEREWITH:
FIRST AND SECOND RESPONDENTS' ANSWERING AFFIRMATION
1.
(PAGE NOS. 111 —349); and
2. DULY COMMISSIONED CONFIRMATORY AFFIDAVIT OF ELSIE DU
PLESSIS — ANNEXURE "JDJ 13' (PAGE NOS. 348A — 349A).
30th
DATED at SANDTON on this the day of MAY 2016
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(
112
am the Deputy Information Officer of the First Respondent, the
I
South African Reserve Bank ("the SARB" or "the Bank"), as
contemplated in terms of section 17(3) of the Promotion of Access to
Information Act No. 2 of 2000 ("PAIA").
The SARB is the central bank of the Republic of South Africa ("South
2
Africa"), established by virtue of section 9 of the Currency and
Banking Act No. 31 of 1920 and currently governed by the
Constitution of the Republic of South Africa, 1996 ("the Constitution")
read together with the South African Reserve Bank Act No. 90 of 1989
("the SARB Act"), as amended, with physical address at 370 Helen
Joseph (formerly Church) Street, Pretoria.
I am duly authorised to attest to this affirmation on behalf of the SARB
3
and the Second Respondent (jointly referred to as "the Respondents"
or "the SARB").
The facts set out herein are true and correct and, save where the
4
contrary is indicated, are within my personal knowledge and belief.
5 Where I make legal submissions herein I do so based on advice
received from the Respondents' legal representatives.
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I have read the notice of motion and an undated founding affidavit of
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Catherine Moira Kennedy deposed to on behalf of the South African
History Archive Trust ("the Applicant). For the reasons that appear
more fully below, the SARB opposes the relief sought by the
Applicant.
This affirmation is structured as follows -
7
Section A: a point in limine on non-joinder is raised;
7.1
Section B: the SARB's compliance with Rule 3(5) of the Rules
7.2
of Procedure for Application to Court in terms of the Promotion
of Access to Information Act, published in Government Gazette
No. 32622 on 9 October 2009 ("the PAIA Rules"), is addressed;
Section C: this section provides general background facts in
7.3
relation to -
7.3.1 the SARB in context;
7.3.2 the SARB's interpretation of the Applicant's request for
access to information submitted to the SARB in terms of
PAIA on 1 August 2014, with reference SAH-2014-SRB-
0007, which forms the subject matter of the application
114
("the Applicant's PAIA request" or "the requesV') - with
reference to Exchange Control investigations only;
7.3.3 exchange controls in South Africa generally, and the
Financial Surveillance Department of the SARB;
7.3.4 investigations of and record keeping by the SARS;
7.3.5 section 33 of the SARB Act and the provisions of PAIA;
7.3.6 broad public considerations in relation to information
sought from a central bank's investigation files; and
7.3.7 the SARB's evaluation of the Applicant's PAIA request;
7.4 Section D: the information sought in respect of Mr Vito Roberto
Palazzolo, also known as Mr Robert von Palace
Kolbatschenko, ("Mr Palazzolo") is considered. Aspects such
as the basis of the Applicant's PAIA request, details of the
SARB's investigations, the contents of records located by the
SARB, analysis of records against the provisions of PAIA and
the public interest override are considered;
115
7.5 Section E: the information sought in respect of the late
Brigadier Johann Philip Derk (Jan) Blaauw ("Brig Blaauw") is
analysed and considered on the same basis as set out in
paragraph 7.4 above;
7.6 Section E: the information sought in respect of Mr Robert Oliver
Hill (Mr Hill") is analysed and considered on the same basis as
set out in paragraph 7.4 above;
7.7 Section F: deals with the averments contained in the
Applicant's founding affidavit seriatim.
A POINT IN LIMINE: NON-JOINDER
This matter concerns the Applicant's PAIA request, seeking access to
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information relating to the following eight individuals, some of whom
are deceased -
8.1 Brig Blaauw;
8.2 the late Mr Giovanni Guiseppe Mario Ricci ("Mr Ricci");
8.3 the late Mr Stephanus Petrus (Fanie) Botha ("Mr Botha");
ii
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8.4 Mr Hill
8.5 Mr Paul Ekon ("Mr Ekon");
8.6 Mr Palazzolo;
8.7 Mr Craig Michael Williamson ("Mr Williamson"); and
8.8 Dr Wouter Basson ("Dr Basson").
The Applicant seeks, inter a/ia, the following order -
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"2 Dec/aring that the decision of the First and Second
Respondents to refuse access to the records requested by
SAHA in its request for information in terms of the Promotion
of Administrative Justice Act (sic), 2 of 2000 ("PA/A') dated I
August 2014 ("the request') is un/awful and in conflict with the
provisions of PA/A and the Constitution.
3 [...]
Directing the Respondents to provide the requested records in
4
respect of Brigadier B/aauw, Mr Ricci, Mr Botha and Mr Hil/ to
the App/icant within 15 (fifteen) days of the granting of this
order.
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5 Directing the Respondents to notify Mr Ekon, Mr Palazzolo, Mr
Williamson and Dr Basson within 5 days of the date of this
order, of the request, in accordance with section 47 of PAIA
and thereafter to comply with the time periods and the
provisions in ChapterS of PA IA."
(own emphasis)
10 The "record" sought in respect of each of the eight individuals is, in
terms of the Applicant's PAIA request, formulated as follows
"Copies of any and all records, or parts of records, of any evidence
obtained by the bank at any time as part of investigations into any
substantial contravention of, or failure to comply with, the law in terms
of significant fraud (including fraud through manipulation of the
financial rand dual currency, foreign exchange or forging Eskom
bonds), gold smuggling or smuggling of other precious metals
from 1 January 1980 to 1 January 1995...". (own emphasis
underlined)
11 The records sought concern information relating to financial
transactions in which each of the listed persons may have been
involved. In the premises, the information (to the extent that it is in the
See annexure FA2" at p. 53,
118
possession or under the control of the SARB) constitutes personal
information" as contemplated in section 1 of PAIA in paragraph (b) of
the definition of personal information, read together with section 34 of
PAIA (Mandatory Protection of Privacy of Third Party who is a Natural
Person).
12 Additionally, the allegations made in the description of the Applicant's
PAIA request presuppose that the listed persons may have been
involved in activities implicating them in serious and substantial
contraventions of the law and fraud.
Generally speaking, the information officer of the SARB must refuse
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the disclosure of information to a requestor in accordance with
section 34(1) of PAIA, except as provided for in section 34(2).
However, to the extent that the information would reveal evidence of a
substantial contravention of, or failure to comply with the law, and the
public interest clearly outweighs the harm contemplated in
section 34(1), the information officer must disclose such information in
terms of section 46 of PAIA.
The orders sought by the Applicant may clearly affect the interests of
14
the listed persons. In the premises, the listed persons have a direct
and substantial legal interest in the outcome of these proceedings,
and ought to have been cited as parties to these proceedings.