TRC Final Report

Volume 1

Chapter 8

Subsection 11

■ THE PURGING OF OFFICIAL MEMORY : A CHRONOLOGY

From at least the 1970s: Government offices, particularly within the security establishment, routinely destroy ‘sensitive’ records.

1978: The Prime Minister authorises government-wide guidelines for the routine destruction of classified records. These are updated, with the State President's approval, in 1984.

1988: Records of the South West Africa Territory Force are appraised and large volumes destroyed.

1991: NIS begins a systematic destruction programme which continues until late in 1994. The guidelines are channelled to the State Security Council as a basis for government-wide guidelines.

November 1991: NIS attempts to collect all NSMS records, apparently to implement selective destruction.

1992: The Security Branch of the SAP begins a systematic destruction programme, which continues into 1993.

3 July 1992: Minister of Justice and National Intelligence authorises the destruction of NIS financial and related records outside parameters laid down by Treasury requirements.

2 June 1993: Cabinet approves government-wide guidelines for the destruction of ‘state sensitive’ records. The guidelines are submitted to Cabinet by the State Security Council and incorporated the principles of the 3 July 1992 authorisation referred to above. Immediately, the SADF and other government structures begin systematic destruction programmes.

July 1993: The Security Secretariat advises government offices to destroy certain categories of classified record. Widespread implementation follows.

From 1991: All the above processes provide a cover for widespread ad hoc removals and destruction of records by individuals.

1995: In June, NICOC introduces a moratorium on the destruction of ‘intelligence documents’. In November, Cabinet imposes a moratorium on the destruction of all categories of state record.

April 1995 – November 1996: NIA systematically appraises and destroys certain records inherited from the intelligence services of the former homelands.

The issue of legality

94 The selective destruction of state records beyond the parameters of the Archives Act was concentrated largely within the security establishment in the period 1960 to 1990. This reflected the former state’s tendency to operate in a highly secretive manner and the fact that ‘sensitive’ records were not subject to the operation of the Archives Act. This assumption was sanctioned by the 1978 and 1984 NIS Guidelines for the Protection of Classified Information, which had been authorised by the head of state. Between 1990 and 1994 selective destruction became a systematic endeavour authorised by Cabinet and reaching into all sectors of the state. It is clear that the former state wished to prevent the new government from access to many documents. At the time and subsequently, those responsible maintained that their motive was simply to protect intelligence sources and the legitimate security interests of the state. The evidence demonstrates that the destruction went far beyond this. Those responsible also maintain that the endeavour was entirely legal. They point to the state legal opinions secured by the State President’s Office, the NIS and the Director-General of National Education in 1991 and 1993 which argued that ‘state sensitive’ records fell outside the definition of records which were subject to the Archives Act. However, the following factors need to be taken into account :

a The SAS disagreed with these legal opinions.

b The basis of Mr Brian Currin’s legal intervention in 1993 was a rejection of the two 1991 opinions.

c In the wake of the Currin settlement, the Minister of Justice issued a media statement to the effect that that “Cabinet is of the view that state documentation should be dealt with in terms of the Archives Act.”²⁸ However, the destruction of ‘state sensitive’ records beyond the operation of the Act continued. And, as recounted earlier, within months of the media statement Cabinet attempted to secure legal sanction for the removal from state custody of Cabinet minutes and other ‘sensitive’ records outside the operation of the Act.

d The state used the legal opinions selectively. For instance, the 1993 opinion’s recommendation that an advisory mechanism on records destruction be created was simply ignored.

e Cabinet’s approval of the destruction of financial records outside the parameters laid down by the Treasury requirements was of dubious legal validity.

f The legal opinions begged the question, ‘in terms of what law are 'state sensitive’ records to be destroyed?’ Several officials involved in such destruction pointed to the Protection of Information Act, but this Act makes no reference to the destruction of documents.

95 Ultimately the question of legality is perhaps largely a non-issue. On the one hand, the former government created rules and performed actions, which were perfectly legal but lacked legitimacy and often bore little or no relation to the rule of law. On the other, it is clear that the sanitisation of official memory would probably have taken place irrespective of legal constraints. As Mr Brian Currin said of the 1993 settlement, the only way to enforce it would have been to “tie up their [government’s] hands and confiscate all the relevant machinery they can use to destroy documents.”

The role of the State Archives Service

96 Given its legislative mandate, the SAS was the principal state agent responsible for acting against destruction without the required archival authorisation. While it investigated numerous cases of alleged or actual illegal destruction, lack of resources and an abrogation of responsibility led to its failure even to detect the routine destruction of classified records by the security establishment in the pre-1990 period. In the 1990-1994 period of mass destruction, SAS intervention achieved little. It followed up every case of alleged illegal destruction, engaged the security establishment in debate around the issue, registered its disagreement with the two 1991 legal opinions, and forced revision of the NIS’s 1994 Guidelines for the Protection of Classified Information. However, it was hamstrung by the government’s disregard for accountability, by its junior status within government, and by a leadership that was apparently intimidated by the security establishment. The evidence suggests that, while junior staff was pushing for decisive action, the leadership chose not to act. For instance :

a In June 1992, the Department of Foreign Affairs requested authority to destroy certain special projects files. When the Director of Archives indicated that they should be transferred into the custody of the SAS, Foreign Affairs withdrew its application and claimed that the files were in fact merely empty file covers. The Director refused calls by SAS junior staff for an investigation.

b When SAS staff became aware of the Security Secretariat’s 1993 circular concerning the destruction of classified records, and secured evidence of its implementation in government offices, they pushed for an urgent intervention. When the Director of Archives failed to do so, one of these staff members is reported to have leaked the circular first to the press and then to Mr Brian Currin of Lawyers for Human Rights.²⁹

c On no occasion in the period 1990 - 1994 did the Director of Archives authorise an investigative inspection of an office suspected of destroying records. Not once was the Archives Act used to institute an investigation of possible criminal charges in terms of the Act.