The statutory and regulatory framework in which sound records management is founded is the following:
The Constitution, 1996
Section 195 of the Constitution provides amongst others for the:
- effective, economical and efficient use of resources;
- provision of timely, accessible and accurate information; and requires that
- the public administration must be accountable.
The National Archives and Records Service of South Africa Act (Act No. 43 of 1996, as amended)
Section 13 of the Act contains specific provisions for efficient records management in governmental bodies. It provides for the National Archivist-
- to determine which record keeping systems should be used by governmental bodies;
- to authorize the disposal of public records or their transfer into archival custody; and
- to determine the conditions -
- according to which records may be microfilmed or electronically reproduced;
- according to which electronic records systems should be managed.
The National Archives and Records Service of South Africa Regulations (R158 of 20 November 2002)
Part V: Management of Records contains the specific parameters within which the governmental bodies should operate regarding the management of their records.
The Public Finance Management Act (Act No. 1 of 1999) and the Municipal Finance Management Act (Act No. 56 of 2003)
The purpose of the Act is to regulate financial management in the public service and to prevent corruption, by ensuring that all governmental bodies manage their financial and other resources properly.
The Promotion of Access to Information Act (Act No. 2 of 2000)
The purpose of the Act is to promote transparency, accountability and effective governance by empowering and educating the public –
1. to understand and exercise their rights;
2. to understand the functions and operation of public bodies; and
3. to effectively scrutinize, and participate in, decision-making by public bodies that
affects their rights.
As far as the Promotion of Access to Information Act is concerned, the definition of a record is similar to that in the National Archives and Records Service Act, namely “recorded information regardless of form or medium”. Governmental bodies cannot refuse access on grounds that a record is in an electronic form (including an e-mail). This implies that an electronic record (including an e-mail) like any other record should be managed in such a manner that it is available, accessible, and rich in contextual information. By implication electronic records (including e-mails) should be managed in proper record keeping systems and the disposal of electronic records (including e-mails) should be documented and executed with the necessary authority.
The Promotion of Administrative Justice Act (Act No. 3 of 2000)
The purpose of the Act is to ensure that administrative action is lawful, reasonable and fair and properly documented. The Promotion of Administrative Justice Act imposes a duty on the state to ensure that administrative action is lawful, reasonable and procedurally fair; and everyone whose rights have been adversely affected by administrative action has the right to be given written reasons for such an action.
The Electronic Communications and Transactions Act (Act No. 25 of 2002)
The purpose of the Act is to legalize electronic communications and transactions, and to built trust in electronic records. According to the Electronic Communications and Transactions Act data messages are legally admissible records, provided that their authenticity and reliability as true evidence of a transaction can be proven beyond any doubt. The evidential weight of the electronic records (including e-mails) would depend amongst others on the reliability of the manner in which the messages were managed by the originator and the receiver. Should bodies not have a properly enforced records management and e-mail policy and a reliable and secure record keeping system, they run the risk that the evidential weight of their electronic records (including e-mails) might be diminished.
Efficient records management practices are imperative if a body wants to give effect to the provisions of these Acts.