Judicial peek into SANDF documents

Judicial peek into SANDF documents. Picture: EKATERINA BOLOVTSOVA/Pexels

Judicial peek into SANDF documents. Picture: EKATERINA BOLOVTSOVA/Pexels

Published Feb 29, 2024


One of the authors of the book the Battle of Bangui turned to court in a bid to force the defence force to supply him with information, more specifically deployment reports, following an inquiry after the battle.

Author and journalist Warren Thompson turned to the Western Cape High Court in a bid to obtain this information in terms of the Promotion of Access to Information Act. He is also asking the court to review and set aside the defence force minister’s decision to dismiss his appeal against the earlier refusal to grant him this information.

Thompson asked the court to order the minister to hand over this information within 10 days.

The information that is at the centre of the PAIA request relates to the outcome of a board of inquiry conducted by the department of defence in the aftermath of the Battle of Bangui.

The battle took place in the Central African Republic (CAR) during March 2013. The battle involved troops of the South African National Defence Force, including a contingent of Special Forces, and a grouping of CAR rebel forces who fought collectively under the name “Seleka”.

It resulted in a loss of 15 South African soldiers’ lives and injury of a further 25.

At the time that the application was launched Thompson sought the information in question for purposes of a book that he was writing with two other journalists about the battle. By the time the matter was heard, the book had already been written.

However, he persists with the application because he states that the department has never provided an official account of what transpired in the battle, save for sweeping broad answers and vague descriptions.

He said neither did the families of the deceased ever get answers, which means that no one has been held accountable for the disaster which is described as South Africa’s worst military defeat in the democratic era.

Thompson’s request to the department for the documents was earlier turned down as well as his subsequent internal appeal.

In turning to the high court he challenged the assertion by the SANDF that granting his request would amount to unreasonable disclosure of personal information. He said that the department had already announced the names and ranks of the 15 deceased soldiers, and had announced that the deceased soldiers were killed in armed conflict in the Battle of Bangui, resulting from engagement with the Seleka rebels.

Thompson said he was not attempting to access the deceased’s medical records.

Because the applicant has since published his book, which was the basis on which he approached the court, the respondents argued that the application has become moot.

The court did not agree and said there is nothing in the Act which prevents the applicant from obtaining the relief he seeks in these circumstances, or which requires him to demonstrate his purpose for seeking the information. There is furthermore no dispute between the parties that there continues to be significant public interest in the matter.

The SANDF said the information officer of a public body may refuse a request for access to a record of the body if its disclosure could reasonably be expected to cause prejudice to the international relations of the Republic.

But the court said regarding the refusal of the disclosure request because it may damage the Republic’s reputation, there is no provision in the Act permitting refusal on that basis.

“The details in this regard are scant as it remains unclear why or how the reputation of South Africa stands to be damaged as a result of disclosure of the information.”

But the court added that if disclosing the type of military equipment and strategies used in the battle and contained in the inquiry could pose a threat to the defence or security of the Republic, that cannot be undone at a later stage.

It said this is an appropriate case for the court to exercise its discretion to examine the inquiry – to take a judicial peek into it.

Not only will such an order be in the interests of justice, taking into account the concerns of the parties involved in this case, but it will assist the court in determining whether the public interest in the disclosure of the inquiry outweighs the harm.

The respondents were ordered to deliver to the chambers of the judge handling this matter, the SANDF Board of Inquiry documents relating to the Battle of Bangui to determine whether it should or not remain under wraps.

Pretoria News

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