TRC Final Report

Volume 1

Chapter 8

Part Appendix

Subsection 1

■ APPENDIX 1

DISPOSAL OF STATE SENSITIVE DOCUMENTATION

1 Introduction

1.1 The vast volume of classified material in the state set-up and the relevance thereof in changing circumstances in the country have raised practical questions about disposing of such documentation.

1.2 The intelligence security subcommittee of CIC has approached the subject in the light of the following principles in consultation with a working group appointed by cabinet:

-There is a need for a simplified, orderly system which will entail fewer prescriptions but will nevertheless provide greater protection in cases where it will really be necessary;

-it is about state sensitive documentation or information that is worthy of protection from a state point of view, and not about shielding against mere political embarrassment;

-no disposal will be aimed at the obstruction of justice.

2. Legal requirements

2.1 The Archives Act, 1962 applies in brief to all documents that are created or received in state offices and that cannot be dealt with in another way as a result of the nature thereof or the relevance of other legal requirements.

2.2 Section 9 of the Act gives the public the right to have access to all “archives” or documentation older than thirty years, except in those cases where the Minister of National Education refuses or regulates access on the basis of “public policy”. By the same token, the Minister may also allow access to archives younger than 30 years.

2.3 In the case of state sensitive documentation, the Archives Act does not apply as a result of the confidential nature of the material and/or the provisions of the Protection of Information Act, 1982. In these circumstances, the relevant head of department has complete power of disposal, including destruction. (See Guidelines for protection of classified information SP 2/8/1 Chapter 4, paragraph 12).

2.4 In another context, an opinion was sought from state legal advisers with regard to the claim of outgoing political office bearers over state documentation. According to the legal advisers the state documentation remains the property of the state and these office bearers have no claim to it. The State Archive has a filing system that is meant to maintain the difficult distinction between a political office bearer’s political and state activities. This is made available to the personal staff of office bearers when they assume office.

3. Administrative Requirements

3.1 Each head of department has the power to dispose of documents of a classified nature in his department within the provisions of the Guidelines for Protection of Classified Information - SP 2/8/1, Chapter 4, Paragraph 12 (taking into account existing legislation) by way of his own departmental procedural prescription. This includes destruction.

3.2 Where the destruction of authorisations, evidentiary material and other financial records of state sensitive projects is concerned, the normal disposal periods can be deviated from after sufficient motivation and subject to the following conditions:

3.2.1 Destruction may only take place after the Auditor-General (AG)’s auditing cycle had expired. This implies that destruction may only take place once the discussion of the AG’s report on Secret Funds by the Joint Committee over Public Accounts has taken place and after all outstanding auditing queries with regard to a specific financial year have been dealt with. A certificate similar to that prescribed in Treasury Instruction M 1.3.2 Annexure 1, must still be provided.

3.2.2 However, where circumstances dictate that some documents have to be destroyed immediately after the audit, the relevant minister must decide on this in the light of a full oral or written motivation.

3.2.3 Documentation dealing with expenditure that does not yet form a final debit against a special account and/or budget post, for instance in the case of outstanding advances, may not be destroyed. It is also necessary to preserve documents/evidentiary material relating to the following aspects:

-Assets that have not been finally disposed of

-Shareholdings in institutions outside the State set-up like companies and close corporations

-Outstanding loans or debits

-Incomplete projects that cover more than one financial year and for which permission for final closure has not yet been obtained.

3.2.4 There are also some documents that may only be destroyed in certain limited circumstances. The following are examples:

-In all cases (except the SADF) the relevant minister can personally authorise directives for destruction. Such authorisation can however not be obtained once off for all sensitive projects and each project has to be approached separately. The recommendation is however that approval, in principle, should also be obtainable in advance from the Department of State Expenditure.

-The Defence Force’s Special Defence Account falls under the Treasury Act and provisions for destruction are clearly contained in the Financial Guide to the Treasury, Chapter M. Authorisations in these cases must be given by both the Ministers of Defence and of State Expenditure.

3.2.5 In summary: The matter of the destruction of authorisations and documentation with regard to sensitive projects must be cleared by each department with the responsible minister(s).