The SA History Archive says it has reached an “out-of-court settlement” in a landmark constitutional case concerning access to apartheid-era military intelligence records in the custody of the SA National Defence Force (SANDF).

Archive director Verne Harris, confirming the settlement, says the SANDF is reviewing its earlier refusal to release requested information about the files. He expects the documents in question to be handed over to to him on August 6. “However, this is still a delicate matter,” Harris adds.

The Pretoria High Court action between the archive and the SANDF is one of the first of its kind in terms of the new Promotion to Access of Information Act. The action was launched by the archive last month after it failed to gain access to what it considered to be historical documents, including military intelligence file description lists.

This information was withheld because SANDF claimed the lists had “not been declassified by Defence Intelligence” or had been classified as Secret because “they contain information relating to the defence of the Republic”. The archive challenged this explanation and applied to the High Court for a review of the SANDF’s decision not to make the information available.

The archive, implying negligence on the part of the SANDF, alleged that SANDF officers “did not apply their minds properly to the matter and thus the decision to refuse the request for information was arbitrary and/or unreasonable and/or based on an error of law, and/or based on irrelevant considerations.”

Meanwhile, in a related issue, further battle lines have been drawn between the history archive and two government departments, over “missing” Truth Commission files and alleged violations of the Promotion of Access to Information Act.

The South African Human Rights Commission (HRC), which has powers to monitor and oversee the implementation of the Promotion of Access to Information Act, is considering a formal complaint lodged by the archive against the Department of Justice and the National Intelligence Agency.

The archive alleges these two government departments “seriously neglected their duties” in terms of the Act and the constitutional right of access to information. The archive has been attempting without success since last year to gain access to these files which are considered by the two government departments to contain “sensitive” information.

HRC commissioner Leon Wessels, who has overall responsibility for the commission’s oversight functions under the Promotion of Access to Information Act, confirms this was “one of the first complaints of its kind” under the Act. He was “not entirely sure” how the HRC would proceed in the matter, but a first step would be to “try bringing together the parties concerned, so that an amicable solution might be reached”.

Wessels said the commission was currently preoccupied with trying to implement HRC’s obligations in terms of the Act requiring the HRC to ensure that all private and public bodies produce “manuals” listing personal information held in their files about their employees.

“According to the Act, these manuals have to be completed by August 15,” Wessels said, “but there is still a lot of confusion on the part of private and public bodies concerning this statutory requirement”.

[Stan Winer is a correspondent in South Africa.  His main area of interest is the Truth Commission]

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