NO. 43 OF 1996: NATIONAL ARCHIVES OF SOUTH AFRICA ACT, 1996.
PRESIDENT'S OFFICE
No. 1595.
2 October 1996
NO. 43 OF 1996: NATIONAL ARCHIVES OF SOUTH AFRICA ACT, 1996.
It is hereby notified that the President has assented to the following Act
which is hereby published for general information-
ACT
To provide for a National Archives; the proper management and care of the
records of governmental bodies; and the preservation and use of a national
archival heritage; and to provide for matters connected therewith.
(Afrikaans text signed by the President.)
(Assented to 27 September 1996)
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-
Definitions
1. In this Act, unless the context otherwise indicates-
(i) "appraisal" means the archival function of determining the eventual
disposal of records; (viii)
(ii) "archives" means records in the custody of an archives repository;
(ii)
(iii) "archives repository" means any archives repository contemplated
in section 11; (i)
(iv) "Commission" means the National Archives Commission contemplated in
section 6; (ix)
(v) "custody" means the control of records based upon their physical
possession; (iv)
(vi) "disposal authority" means a written authority issued in terms of
section 13(2)(a) specifying records to be transferred into the
custody of the National Archives or specifying records to be
otherwise disposed of; (iii)
(vii) "electronic records system" means any records system in which
information is generated electronically and stored by means of
computer technology; (v)
(viii) "governmental body" means any legislative, executive, judicial or
administrative organ of state (including a statutory body) at the
national level of government; (xv)
(ix) "head of a governmental body" means the chief executive officer of
a governmental body or the person who is acting as such; (vii)
(x) "Minister" means the Minister responsible for the administration of
this Act; (x)
(xi) "National Archives" means the National Archives of South Africa
established by section 2; (xi)
(xii) "non-public record" means a record created or received by a
private individual or a body other than one defined as a
governmental body in terms of this Act or a provincial law
pertaining to records or archives; (xii)
(xiii) "prescribe" means prescribe by regulation; (xix)
(xiv) "public record" means a record created or received by a
governmental body in pursuance of its activities; (xiv)
(xv) "record" means recorded information regardless of form or medium;
(xvii)
(xvi) "recording" means anything on which sounds or images or both are
fixed or from which sounds or images or both are capable of being
reproduced, regardless of form; (xiii)
(xvii) "records classification system" means a classification plan for
the identification, arrangement, storage and retrieval of records;
(xviii)
(xviii) "regulation" means any regulation made under this Act; (xvi)
(xix) "this Act" includes the regulations. (vi)
Establishment of National Archives of South Africa
2. There is hereby established a branch of the public service of the
Republic to be known as the National Archives of South Africa.
Objects and functions of National Archives
3. The objects and functions of the National Archives shall be to-
(a) preserve public and non-public records with enduring value for use
by the public and the State;
(b) make such records accessible and promote their use by the public;
(c) ensure the proper management and care of all public records;
(d) collect non-public records with enduring value of national
significance which cannot be more appropriately preserved by another
institution, with due regard to the need to document aspects of the
nation's experience neglected by archives repositories in the past;
(e) maintain a national automated archival information retrieval system,
in which all provincial archives services shall participate;
(f) maintain national registers of non-public records with enduring
value, and promote co-operation and co-ordination between
institutions having custody of such records;
(g) assist, support, set standards for and provide professional
guidelines to provincial archives services;
(h) promote an awareness of archives and records management, and
encourage archival and records management activities;
(i) generally promote the preservation and use of a national archival
heritage.
National Archivist and staff
4. (1) The National Archives shall be managed by a National Archivist
appointed by the Minister on the basis of relevant professional experience and
an appropriate archival qualification.
(2) The National Archivist shall in the performance of his or her functions
be assisted by officers and employees appointed in terms of the Public Service
Act, 1994 (Proclamation No. 103 of 1994).
(3) (a) The National Archivist may, subject to any conditions, delegate a
power or assign a duty to a member of the staff and may at any time cancel such
delegation or assignment.
(b) A delegation or assignment shall not divest the National Archivist of
the power delegated or duty assigned and he or she may at any time amend or set
aside any decision made thereunder, or exercise the power or perform the duty
concerned.$
Powers and duties of National Archivist
5. (1) The National Archivist shall-
(a) take such measures as are necessary to arrange, describe and
retrieve records;
(b) provide information, consultation, research and other services
related to records;
(c) with special emphasis on activities designed to reach out to less
privileged sectors of society, make known information concerning
records by means such as publications, exhibitions and the lending
of records;
(d) require of a person who has made use of records in the custody of
the National Archives while researching a publication or
dissertation to furnish a copy of the publication or dissertation to
the National Archives;
(e) generally, take such other steps and perform such other acts as may
be necessary for or conducive to the achievement of the objects of
the National Archives.
(2) The National Archivist may-
(a) provide training in archival techniques and the management of
records;
(b) co-operate with organisations interested in archival matters or the
management of records;
(c) provide professional and technical support in aid of archival
activities and the archival community;
(d) with the concurrence of the Minister and the Commission exempt a
governmental body from any provision of this Act.
Establishment, constitution and functions of National Archives Commission
6. (1) The Minister shall by notice in the Gazette establish a commission to
be known as the National Archives Commission.
(2) The Commission shall consist of the National Archivist and not more than
nine other members appointed by the Minister from among persons who are
knowledgeable of or have an interest in archival matters.
(3) The procedures and other conditions for appointment as a member of the
Commission shall be as prescribed.
(4) The functions of the Commission shall be to-
(a) advise the Minister on any matter related to the operation of this
Act;
(b) advise and assist the National Archivist in carrying out the objects
and functions of the National Archives;
(c) promote the co-ordination of archival policy formulation and
planning at national and provincial levels;
(d) exercise the powers contemplated in sections 5(2)(d) and 12(3) of
this Act;
(e) approve the appraisal policy of the National Archives and monitor
its implementation;
(f) maintain a national list of non-public records in South Africa
which, in the opinion of the Commission, have enduring value.
(5) The Commission may appoint committees from amongst its members and may
assign to any committee so appointed such of its functions as it may deem fit:
Provided that the Commission shall not be divested of any function which it has
so assigned and may amend or revoke a decision of such a committee.
(6) The procedure at meetings of the Commission and of a committee shall be
as prescribed.
(7) The Commission or any committee may co-opt any person to serve on the
Commission or on a committee, as the case may be, in an advisory capacity, but
such a co-opted member shall not have any voting rights.
(8) An ordinary member, or a co-opted member referred to in subsection (7),
who is not in the full-time service of the State shall be paid from the funds
of the Commission such travel and other expenses incurred by him or her in
connection with the activities of the Commission as the Minister may determine
with the concurrence of the Minister of Finance.
Secretary and staff of Commission
7. (1) The work incidental to the performance of the functions of the
Commission shall, subject to the directions of the Commission, be performed by
a secretary appointed by the Commission on such conditions of service and at
such remuneration and service benefits as the Minister, with the concurrence of
the Minister of Finance, may determine.
(2) The Secretary shall be assisted in the performance of his or her
functions by persons appointed by the Commission on such conditions of service
and at such remuneration and subject to such service benefits as the Commission
may, with the approval of the Minister, granted with the concurrence of the
Minister of Finance, determine.
Funds of Commission
8. (1) The funds of the Commission shall consist of-
(a) money appropriated by Parliament;
(b) money accruing to the Commission from any other source.
(2) The Secretary of the Commission shall open an account in the name of the
Commission with an institution registered as a bank in terms of the Banks Act,
1990 (Act No. 94 of 1990), and shall deposit in that account all money
received in terms of this section.
(3) The Commission shall utilise its funds for the defrayment of expenses
incurred in the performance of its functions under this Act.
(4) The Commission shall in each financial year, at a time determined by the
Minister, submit a statement of the Commission's estimated income and
expenditure during the following financial year to the Minister for approval,
granted with the concurrence of the Minister of Finance.
(5) The expenses of the Commission in a given financial year shall not
exceed the total amount approved under subsection (4).
Accountability
9. (1) The Secretary of the Commission shall be the accounting officer of
the Commission and shall be charged with the accountability in respect of all
money received and payments made by the Commission.
(2) The accounting officer shall-
(a) keep full and correct record of all money received or spent by the
Commission, and of the assets and liabilities of the Commission;
(b) as soon as possible after the end of the financial year of the
Commission, draw up annual financial statements which shall, with
appropriate details, show money received by the Commission and
expenditure incurred by the Commission and its assets and
liabilities at the end of the financial year concerned.
(3) The financial year of the Commission shall end on 31 March in each year.
(4) The records and annual financial statements mentioned in subsection (2),
shall be audited by the Auditor-General.
Annual reports
10. (1) As soon as practicable after the end of each financial year the
National Archivist shall compile a report on all the activities of the National
Archives during that financial year, and the Commission shall compile a report
on all the activities of the Commission during that financial year.
(2) The report of the National Archivist shall include-
(a) details of income and expenditure;
(b) a complete list of disposal authorities issued;
(c) an account of all cases of unauthorised disposal of public records
investigated by the National Archives; and
(d) an account of all governmental bodies which have failed to comply
with this Act.
(3) The report of the National Archivist and of the Commission, together
with the audited annual financial statements pertaining to the funds of the
Commission, shall be submitted to the Minister, and the Minister shall lay them
upon the Table in Parliament within 14 days after receipt thereof if Parliament
is then in session, or if Parliament is not then in session, within 14 days of
the commencement of the next session.
Custody and preservation of records
11. (1) The Minister may from time to time establish archives repositories
under the control of the National Archivist for the custody of records.
(2) Public records identified in a disposal authority as having enduring
value shall be transferred to an archives repository when they have been in
existence for 20 years:
Provided that-
(a) no other Act of Parliament requires such records to be kept in the
custody of a particular governmental body or person;
(b) the National Archivist may, after consultation with the head of a
governmental body, identify such records which-
(i) should remain in the custody of a governmental body; or
(ii) should be transferred to an archives repository before they
have been in existence for 20 years;
(c) the National Archivist may defer the transfer of any public records;
and
(d) the National Archivist may grant permission for any public records
to be transferred to an archives repository before they have been in
existence for 20 years.
(3) The Minister may prescribe terms and conditions governing the transfer
of records under subsection (2).
(4) The National Archivist shall take such measures as are necessary to
preserve and restore records.
Access and use
12. (1) Subject to any other Act of Parliament which deals with access to
public records-
(a) a public record in the custody of the National Archives shall be
available for public access if a period of 20 years has elapsed
since the end of the year in which the record came into existence;
(b) access to a public record in respect of which a period of less than
20 years has elapsed since the end of the year in which the record
came into existence may be given by the National Archivist upon
request.
(2) A non-public record in the custody of the National Archives shall be
available for public access subject to any conditions agreed upon at its
acquisition in terms of section 14(1) of this Act.
(3) Notwithstanding subsections (1) and (2), the National Archivist may
refuse access to a record on the grounds of its fragile condition, provided
that there shall be a right of appeal to the Commission against the refusal.
(4) The Minister may make regulations as to the admission of the public to
archives repositories, the making available of records for public access, and
the use of equipment for the making of copies of or extracts from records in
the custody of the National Archives.
Management of public records
13. (1) Subject to the provisions of this Act, the National Archivist shall
be charged with the proper management and care of public records in the custody
of governmental bodies.
(2) Without limiting the generality of subsection (I)-
(a) no public record under the control of a governmental body shall be
transferred to an archives repository, destroyed, erased or
otherwise disposed of without the written authorisation of the
National Archivist, issued subject to-
(i) section 6(4)(e) of this Act; and
(ii) a final ruling by the Minister when unresolvable differences
arise between the National Archivist and the Commission;
(b) the National Archivist shall-
(i) determine records classification systems to be applied by
governmental bodies;
(ii) determine the conditions subject to which records may be
microfilmed or electronically reproduced; and
(iii) determine the conditions subject to which electronic records
systems should be managed;
(c) the National Archivist shall inspect public records in so far as
such inspection may be necessary for the performance of his or her
functions under this Act:
Provided that the inspection of public records which contain
information the disclosure of which is restricted by any other Act
of Parliament shall be done only with the consent of the head of the
governmental body concerned.
(3) The Minister may make regulations as to the management and care of
public records in the custody of governmental bodies.
(4) The National Archivist may from time to time issue directives and
instructions, which shall not be inconsistent with the regulations, as to the
management and care of public records in the custody of governmental bodies.
(5) (a) The head of a governmental body shall, subject to any law governing
the employment of personnel of the governmental body concerned and such
requirements as may be prescribed, designate an official of the body to be the
records manager of the body.
(b) The records manager shall be responsible to see to it that the
governmental body complies with the requirements of this Act.
(c) Additional powers and functions may be prescribed to a records manager.
Acquisition and management of non-public records
14. (1) The National Archivist may on behalf of the State acquire by
purchase or donation or on loan for a temporary period or in perpetuity, either
unconditionally or subject to such conditions as may be agreed upon, non-public
records which, in his or her opinion, have enduring value of national
significance and which cannot be more appropriately preserved by another
institution.
(2) Subject to any conditions as may be applicable, non-public records
acquired under subsection (1) shall be deposited in the archives repository
determined by the National Archivist.
(3) The producer or distributor of a recording which is a non-public record
in terms of this Act shall, within six months after a request in writing is
made by the National Archivist, provide the National Archivist with a copy of
the recording in such form as may be specified in the request.
(4) Subsection (3) shall not apply in respect of a recording that is
required to be deposited in a legal deposit library, defined in section I of
the Legal Deposit of Publications Act, 1982 (Act No. 17 of 1982), or that has
not been broadcast or made public in South Africa.
(5) The National Archivist shall maintain national registers of non-public
records in South Africa which, in his or her opinion, have enduring value, in
consultation with the institutions having custody of such records.
(6) No person or institution having non-public records in their custody
which are recorded on the national list contemplated in section 6(4)(f) shall
destroy, export from South Africa or otherwise dispose of such records without-
(a) reporting to the Commission their intention to so dispose of such
records at least 90 days in advance of such action; and
(b) securing the approval of the Commission for such action.
Limitation of liability
15. No person, including the State, shall be liable in respect of anything
done under this Act in good faith and without negligence.
Offences and penalties
16. (1) Any person who-
(a) wilfully damages any public or non-public record in the control of a
governmental body; or
(b) otherwise than in accordance with this Act or any other law,
removes, destroys or erases such record,
shall be guilty of an offence and liable on conviction to a fine or
imprisonment for a period not exceeding two years or both such fine and
imprisonment.
(2) Any person who fails to comply with-
(a) a request mentioned in section 14(3); or
(b) section 14(6),
shall be guilty of an offence and liable on conviction-
(i) in the case of an offence contemplated in paragraph (a) of this
subsection, to a fine not exceeding R5000;
(ii) in the case of an offence contemplated in paragraph (b) of this
subsection, to a fine not exceeding R10000.
(3) The National Archivist may refuse to allow any person convicted of an
offence in terms of subsection (1) access to an archives repository for such
period as he or she may deem fit, subject to an appeal to the Minister.
Transitional provisions
17. (1) The person who, immediately prior to the commencement of this Act,
performed the functions of the director of archives under the Archives Act,
1962 (Act No. 6 of 1962), shall continue in office as the National Archivist.
(2) Every public servant who, immediately prior to the commencement of this
Act, performed functions as a member of the staff of the said director, shall
be deemed to be a member of staff of the National Archives.
(3) Any records in the custody of the said director on the day immediately
prior to the commencement of this Act are hereby transferred to the National
Archivist subject to any terms and conditions that were applicable to such
records on that day.
(4) Until such time as a provincial legislator promulgates provincial
legislation in terms of which a provincial archives service is established for
that province, every provision of this Act shall apply in that province, and-
(a) wherever the expression "governmental body" occurs it shall mean a
legislative, executive, judicial or administrative organ of state
(including a statutory body) in such province at the national,
provincial or local level of government; and
(b) wherever the expression "public record" occurs it shall mean a
record created or received by any institution contemplated in
paragraph (a) in pursuance of its activities.
Regulations
18. The Minister may make regulations as to any matter which in terms of
this Act is required or permitted to be prescribed or done by regulation, and,
generally, with reference to any matter which is necessary or expedient to be
prescribed in order to achieve or promote the objects of this Act.
Repeal of laws
19. The following laws are hereby repealed:
(a) The Archives Act, 1962 (Act No. 6 of 1962);
(b) the Archives Amendment Act, 1964 (Act No. 12 of 1964);
(c) the Archives Amendment Act, 1969 (Act No. 63 of 1969);
(d) the Archives Amendment Act, 1977 (Act No. 54 of 1977); and
(e) the Archives Amendment Act, 1979 (Act No. 32 of 1979).
Short title and commencement
20. This Act shall be called the National Archives of South Africa Act,
1996, and shall come into operation on a date to be fixed by the President by
proclamation in the Gazette.