Retention and archives
Archives law in South Africa
Short answer
- Law
- National Archives of South Africa Act 43 of 1996, assented to 27 September 1996 1
- Disposal
- Written authorisation of the National Archivist 1
- Transfer of enduring records
- After 20 years in existence, section 11 1
- Public access
- 20 years after the end of the year the record was created, section 12 1
- Offence
- Fine or up to 2 years in prison, section 16 1
Key terms in the Act
This page describes the Act as published in the Government Gazette on 2 October 1996 1. Later amendments may change section numbers or wording.
- Appraisal: the archival function of deciding the eventual disposal of records 1.
- Disposal authority: a written authority under section 13(2)(a) naming records to be transferred to the National Archives or otherwise disposed of 1.
- Governmental body: any legislative, executive, judicial or administrative organ of state, including a statutory body, at national level 1.
- Electronic records system: any records system in which information is generated electronically and stored by computer 1.
- Non-public record: a record created or received by a private individual or a body that is not a governmental body 1.
Disposal needs written authorisation
Section 13 charges the National Archivist with the proper management and care of public records in the custody of governmental bodies 1. It bars any public record under the control of a governmental body from being transferred to an archives repository, destroyed, erased or otherwise disposed of without the National Archivist's written authorisation 1.
The National Archives must report on its work. The Act lists a complete list of disposal authorities issued and an account of all cases of unauthorised disposal of public records it investigated among the contents of its annual report 1.
Transfer and access after 20 years
| Rule | What the Act says | Section |
|---|---|---|
| Transfer | Records with enduring value go to an archives repository after 20 years in existence 1 | 11 1 |
| Earlier or later transfer | The National Archivist may defer a transfer or allow one before 20 years 1 | 11 1 |
| Open access | Records in National Archives custody are open 20 years after the end of the year they came into existence 1 | 12 1 |
| Earlier access | The National Archivist may give access to younger records 1 | 12 1 |
| Fragile records | Access may be refused for fragile condition, with appeal to the National Archives Commission 1 | 12(3) 1 |
Offences
Section 16 makes it an offence to wilfully damage any public or non-public record held under the Act, or to remove, destroy or erase such a record otherwise than in line with the Act 1. The penalty is a fine or imprisonment for up to two years, or both 1.
The access law covers the same ground for requests. Under the Promotion of Access to Information Act, destroying, damaging, altering, concealing or falsifying a record with intent to deny a right of access is an offence carrying a fine or up to two years in prison 2. Where a record cannot be found, the information officer must say so by affidavit setting out every step of the search 2.
How South Africa compares
Australia uses an access rule in place of a transfer age. The National Archives of Australia says most archival records enter the open access period after 20 years, Cabinet notebooks after 30 and census data after 99 5.
| Jurisdiction | Transfer rule | Public access |
|---|---|---|
| South Africa | After 20 years for records with enduring value 1 | 20 years after the year of creation 1 |
| United Kingdom | No later than 20 years after creation 3 | Some FOI exemptions lapse at 20 years instead of 30 8 |
| United States | No later than 30 years after creation, as a rule 4 | Copies under 30 years stay closed to the end of the period 4 |
| Ireland | More than 30 years old 6, or 20 by ministerial order 7 | Made available for inspection on transfer 6 |
Common questions
Who can approve destroying public records in South Africa?
The National Archivist, by written authorisation 1.
When do South African government records become public?
Records in National Archives custody are open 20 years after the end of the year they were created 1.
Is destroying a public record a crime in South Africa?
Yes. Wilful damage, or removal, destruction or erasure outside the Act, carries a fine or up to two years in prison 1.
What is a disposal authority?
A written authority naming records to be transferred to the National Archives or otherwise disposed of 1.
Rules and charges change. Check the official source linked on this page before you pay or travel. Spotted an error? Email hello@publicrecordgaps.com.
Sources
- South African Government: National Archives of South Africa Act 43 of 1996 (published 2 October 1996)
- Department of Justice and Constitutional Development: Promotion of Access to Information Act 2 of 2000 (consolidated text)
- legislation.gov.uk: Public Records Act 1958, section 3, Selection and preservation of public records
- Legal Information Institute: 44 U.S. Code § 2107
- National Archives of Australia: Access to records under the Archives Act
- Irish Statute Book: National Archives Act, 1986, Section 8, Transfer of Departmental records more than 30 years old
- Irish Statute Book: National Archives (Amendment) Act 2018 (Number 12 of 2018)
- The National Archives: 20-year rule
Related
- Access to information in South Africa (PAIA)
How South Africa's Promotion of Access to Information Act works: section 14 manuals, voluntary disclosure, 30-day decisions, appeals and offences.
- Archive transfer rules compared
How long governments keep records before transfer or public opening: the UK 20-year rule, the US 30-year transfer rule, Australia, India and the EU.
- Unlawful destruction of public records: the rules
Offences and reporting duties for destroying, altering or hiding public records in the UK, US, Canada, India and Australia, with the penalties set in law.
- National archives rules in Ireland
How the National Archives Act 1986 governs transfer, disposal and access for Irish government records, and how a 2018 Act added a 20-year rule.