KwaZulu-Natal Archives and Records Service Act, 2011

Jurisdiction
South Africa · KwaZulu-Natal
Citation
Act 8 of 2011
Date
14 November 2012
Language
English
Type
Legislation
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KwaZulu-Natal
South Africa

KwaZulu-Natal Archives and Records Service Act, 2011

Act 8 of 2011

ACTTo provide for the establishment of the KwaZulu-Natal Archives and Records Service; to provide for the proper management and care of public records in the Province of KwaZulu-Natal; to provide for the preservation and use of a provincial archival heritage for all the people of the Province of KwaZulu-Natal; to repeal the KwaZulu-Natal Provincial Archives Act, 2000 (Act No. 5 of 2000); and to provide for matters incidental thereto.(English text signed by the Premier)BE IT ENACTED by the Provincial Legislature of the Province of KwaZulu-Natal, as follows:-

Chapter 1
Definitions

1. Definitions

In this Act, unless the context indicates otherwise-"appraisal" means the archival function of determining the eventual disposal of records;"archivalia" means the public and non-public records in the custody of an archives repository,"archives repository" means any archives repository contemplated in section 20;"Constitution" means the Constitution of the Republic of South Africa, 1996;"Council" means the KwaZulu-Natal Archives Advisory Council contemplated in section 7;"custody" means the control of records by way of physical possession;"Department" means the Department in the Province of KwaZulu-Natal responsible for provincial archives;"disposal authority" means a written authority issued by the Provincial Archivist in terms of section 18(2) specifying records to be preserved or documents to be otherwise disposed of;"electronic records system" means any records system in which information is generated electronically and stored by means of computer technology;"Executive Council" means the Executive Council of the Province of KwaZulu-Natal;"financial year" means the period commencing on 1 April of a particular year and terminating on 31 March of the following year;"Gazette" means the official Provincial Gazette of KwaZulu-Natal;"Head of Department" means the person appointed as the accounting officer of the Department;"head of a governmental body" means the accounting officer of a governmental body or any person acting as such;"governmental body” means any legislative, executive, judicial or administrative organ of state, including any statutory body, commission, board or council in the provincial or local sphere of government in the Province of KwaZulu-Natal;"member" means a member of the Council contemplated in section 9;"Member of the Executive Council responsible for finance" means the member of the Executive Council of the Province of KwaZulu-Natal responsible for finance;"non-public record" means a record created or received by a private individual or a body other than a governmental body as defined in this Act;"Portfolio Committee" means the relevant Portfolio Committee of the Provincial Legislature responsible for provincial archives;"prescribed" means prescribed by regulation under section 25, and "prescribe" has a corresponding meaning;"Province" means the province of KwaZulu-Natal contemplated in section 103 of the Constitution, and "provincial" has a corresponding meaning;"Provincial Archives" means the KwaZulu-Natal Archives and Records Service established in terms of section 2;"Provincial Government" means the government of the Province;"Provincial Legislature" means the Legislature of the Province as contemplated in section 105 of the Constitution, and having legislative authority for the Province as contemplated in section 104(1) of the Constitution;"public record" means a record created or received by a governmental body in the performance of its functions and the pursuance of its activities;"record" means recorded information regardless of form or medium and includes electronic and digital information;"records classification system" means a classification plan for the identification, arrangement, storage and retrieval of records;"regulations" means regulations made in terms of section 25;"responsible Member of the Executive Council" means the member of the Executive Council of the Province responsible for provincial archives; and"this Act" includes the regulations.

Chapter 2
Kwazulu-Natal Archives and Records Service (Provincial Archives)

2. Establishment of KwaZulu-Natal Provincial Archives and Records Service

(1)There is hereby established the KwaZulu-Natal Provincial Archives and Records Service, hereinafter referred to as the Provincial Archives.
(2)The Provincial Archives-
(a)is a component within the Department; and
(b)is not a juristic person.

3. Objects and Functions of Provincial Archives

The objects and functions of the Provincial Archives are-
(a)to preserve public and non-public records with enduring value for use by the public and the State;
(b)to facilitate the accessibility of archivalia contemplated in paragraph (a) to the members of public, subject to this Act, the regulations and any other law governing access to the public records;
(c)to promote the use of archivalia contemplated in paragraph (a) by the members of public;
(d)to ensure the proper management and care of all public records by all governmental bodies in the Province;
(e)to collect non-public records with enduring value of provincial 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 in the past;
(f)to maintain provincial registers of non-public records with enduring value;
(g)to promote co-operation and co-ordination between institutions having custody of non-public records with enduring value;
(h)to initiate and co-ordinate the collection of oral and audio-visual archival material;
(i)to participate in the National Automated Archival Information Retrieval System in terms of section 3(e) of the National Archives and Records Service of South Africa Act, 1996 (Act No. 43 of 1996);
(j)to promote an awareness of archives and records management;
(k)to encourage and organize archival and records management activities in the Province; and
(l)generally, to promote the preservation and use of the provincial archival heritage.

Chapter 3
Provincial Archivist and staff

4. Appointment of Provincial Archivist

(1)
(a)The Provincial Archives must be managed by a Provincial Archivist appointed by the responsible Member of the Executive Council in terms of the Public Service Act, 1994 (Proclamation No. 103 of 1994).
(b)The Provincial Archivist, as head of the Provincial Archives as a component within the Department, reports to the Head of Department.
(2)The Provincial Archivist appointed in terms of subsection (1) must-
(a)be a fit and proper person; and
(b)possess the relevant qualifications and experience in archives and records management.

5. Powers and functions of Provincial Archivist

(1)The Provincial Archivist must-
(a)be responsible for the management of the Provincial Archives;
(b)take such measures as are necessary to preserve, conserve, arrange, describe and retrieve archivalia;
(c)provide information, consultation, research and other services related to the management, preservation and conservation of, and access to, archivalia;
(d)with special emphasis on activities designed to reach out to less privileged sectors of society, make known information concerning archivalia by means of publications, exhibitions and lending of archivalia;
(e)subject to section 17, provide administrative and secretarial support to the Council; and
(f)generally-
(i)take such other steps and perform such other acts as may be reasonably necessary for, or conducive to, the achievement of the objects of this Act; or
(ii)do anything-
(aa)reasonably necessary or expedient for; or
(bb)incidental or ancillary to, the effective exercise of his or her powers, and the effective performance of his or her functions or duties in terms of this Act.
(2)The Provincial Archivist may-
(a)provide training in archival techniques, management and preservation of records;
(b)co-operate with other 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)subject to section 18(9), exempt any governmental body in the Province from any provision of this Act;
(e)direct a head of a governmental body to submit or provide such reports as the Provincial Archives may require from time to time;
(f)require of a person who has made use of any public record in the custody of the Provincial Archives while researching a publication or thesis, to donate a copy of the publication or thesis to the Provincial Archives; and
(g)subject to section 25(2), charge fees for-
(i)the utilisation of certain facilities in the Provincial Archives; and
(ii)any utilisation or reproduction of certain archivalia for commercial or income generating purposes.

6. Staff of Provincial Archives

The Provincial Archivist must, in the performance of his or her functions and duties in terms of this Act, be assisted by officers and employees in the Department appointed in terms of the Public Service Act, 1994 (Proclamation No. 103 of 1994).

Chapter 4
KwaZulu-Natal Archives Advisory Council

7. Establishment of KwaZulu-Natal Archives Advisory Council

(1)There is hereby established an advisory council to be known as the KwaZulu-Natal Archives Advisory Council.
(2)The Council is not a juristic person.

8. Powers, duties and functions of Council

The Council must-
(a)advise the responsible Member of the Executive Council on any matter related to the operation of this Act;
(b)advise the Provincial Archivist on furthering the objects and functions of the Provincial Archives;
(c)consult with the Public Protector on investigations into unauthorised destruction of records otherwise protected under this Act;
(d)investigate and make recommendations to the responsible Member of the Executive Council regarding any matter related to the preservation of public records in the Province; and
(e)generally do anything-
(i)reasonably necessary or expedient for; or
(ii)incidental or ancillary to, the effective exercise of his or her powers, and the effective performance of his or her functions or duties in terms of this Act.

9. Composition of Council

(1)The Council is composed of-
(a)not less than five and not more than seven members appointed by the responsible Member of the Executive Council; and
(b)the Provincial Archivist, as an ex officio member of the Council, without the right to vote at its meetings.
(2)Members of the Council must-
(a)be fit and proper persons to serve the best interests of the Province;
(b)be characterised by their independence, impartiality and fairness; and
(c)collectively possess-
(i)the necessary skills, experience or qualifications in the following fields or disciplines-
(aa)archives and records management;
(bb)conservation or preservation of records;
(cc)information technology;
(dd)ethnographic history; and
(ee)law; and
(ii)any other skill, expertise, experience or qualification that may, in the opinion of the responsible Member of the Executive Council, be of benefit to the Council.
(3)In appointing members of the Council, the responsible Member of the Executive Council, must ensure that-
(a)historic imbalances are addressed; and
(b)the Council collectively possesses the necessary and appropriate knowledge, qualifications, experience, skills and expertise.
(4)The responsible Member of the Executive Council must, by notice in the Gazette and at least two newspapers circulating in the Province, invite interested parties within the Province to nominate candidates to serve as members of the Council.
(5)The invitation for nominations in terms of subsection (4) must specify-
(a)the nomination procedure;
(b)the requirements for nomination;
(c)the date by which a nomination must be received by the responsible Member of the Executive Council; and
(d)the manner in which proof of acceptance of nomination by nominees, should be submitted.
(6)The responsible Member of the Executive Council must appoint a selection panel comprising of-
(a)senior Departmental officials; and
(b)any other person that the responsible Member of Executive Council may deem fit, to-
(i)review all the nominations,
(ii)shortlist, evaluate or interview the nominees; and
(iii)make recommendations to the responsible Member of the Executive Council on the nominees.
(7)The responsible Member of the Executive Council must, subject to subsection (6), appoint the members of the Council and designate-
(a)one of the members of the Council as the chairperson; and
(b)one of the members of the Council as the deputy chairperson.
(8)The responsible Member of the Executive Council must publish the names of the persons appointed to the Council in the Gazette and in at least two newspapers circulating in the Province, immediately after such persons have been notified in writing, of their appointment to the Council.
(9)The responsible Member of the Executive Council must, within two months after the appointment of members of the Council, inform the Executive Council and the Portfolio Committee of the names of the appointed members including the term of their appointment.
(10)This section applies, with the necessary changes, to the filling of a vacancy on the Council.

10. Disqualification from being appointed to Council

(1)A person is disqualified from being appointed to the Council or from remaining in the Council, by reason that he or she-
(a)is or becomes an unrehabilitated insolvent;
(b)is or has been declared by a competent court to be of unsound mind;
(c)is a person under curatorship;
(d)has at any time been removed from an office of trust on account of misconduct involving theft or fraud; or
(e)has been convicted and sentenced to a term of imprisonment without the option of a fine, except that the responsible Member of the Executive Council may, upon a person who is nominated for appointment disclosing full details of an offence in an affidavit, condone a conviction in a manner that is consistent with section 106(1)(e) of the Constitution.
(2)A disqualification in terms of subsection (1)(e) ends five years after the sentence has been completed.

11. Term of office of members of Council

(1)Persons appointed to the Council hold office for a period of five years or such lesser period as the responsible Member of the Executive Council may determine and are, subject to section 9, eligible for reappointment at the expiration of such period.
(2)No person may be reappointed after having served on the Council for more than two consecutive terms.

12. Vacancies, removal and resignation from office of members of Council

(1)A member of the Council must vacate office if he or she becomes subject to a disqualification contemplated in section 10.
(2)The responsible Member of the Executive Council may, after having afforded a member the opportunity to state his or her case, at any time terminate the term of office of such member if, in his or her discretion, there are good reasons for doing so.
(3)A member must vacate office if he or she is absent, without a leave of absence having first been granted by the Council, from three consecutive meetings of the Council for which reasonable notice was given to that member personally or by post.
(4)A member may resign from office in writing by giving not less than 30 days notice to the responsible Member of the Executive Council.
(5)The responsible Member of the Executive Council may waive the resignation notice contemplated in subsection (4), if such waiver would not be detrimental to the efficient functioning of the Council.
(6)Whenever a vacancy occurs in the Council, the responsible Member of the Executive Council must, subject to section 9, appoint a person to fill such vacancy for the unexpired portion of the period of office of the member in whose place such person is appointed.
(7)The responsible Member of the Executive Council may-
(a)subject to subsection (2);
(b)after consultation with the Executive Council; and
(c)subject to the relevant provisions of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), terminate the appointment of-
(i)all the members of the Council; or
(ii)the majority of the members of the Council, which termination may render the Council inoperable.
(8)In the event that the responsible Member of the Executive Council exercises his or her powers in terms of subsection (7), he or she may, notwithstanding the procedure for the appointment of the members of the Council set out in section 9, subject to section 9(2) and (3), appoint persons to serve as members of the Council on an interim basis: Provided that-
(a)the persons appointed in terms of this subsection may not remain on the Council for a period of more than 90 days from the date of their appointment; and
(b)the responsible Member of the Executive Council must, subject to section 9, appoint the members of the Council within 90 days of the appointment contemplated in this subsection.

13. Meetings of Council

(1)
(a)The responsible Member of the Executive Council must convene the first meeting of the Council.
(b)The Council must thereafter meet as often as necessary, but at least three times a year at such times and places as the Council may determine.
(2)Every member of the Council must be notified of each meeting in writing, at least 14 days prior to such meeting, and such notification must contain an agenda for the proposed meeting.
(3)In the event that the chairperson and the deputy chairperson of the Council are absent from any meeting of the Council, the members present at that meeting may elect one of their number to preside at that meeting.
(4)A special meeting of the Council may be called at the request of-
(a)the chairperson; or
(b)the majority of the members of the Council by written petition, whereupon the chairperson must, in writing, notify every member of the Council of the time and place of the special meeting.
(5)A quorum for a meeting of the Council is a majority of its members.
(6)Any decision of the Council must be taken by resolution of the majority of the members present at any meeting of the Council and, in the event of an equality of votes on any matter, the member presiding at the meeting in question will have a casting vote in addition to his or her deliberative vote as a member of the Council.
(7)No decision of the Council is invalid merely by reason of a vacancy in the Council: Provided that the decision is taken by the required majority of the members of the Council then present and entitled to sit as members of the Council.
(8)The proceedings of all meetings of the Council must be duly recorded, minuted and retained on file.
(9)
(a)The minutes of the previous meeting must be read at the commencement of each meeting.
(b)The minutes may be regarded as read if copies thereof were furnished to the members of the Council prior to the meeting.
(c)The chairperson may only sign the minutes once objections or corrections have been dealt with.
(10)The chairperson must decide on issues of order or procedure: Provided that if any member objects to any such decision, the issue must be put to the vote and the decision of the majority of the members is final and binding on the Council.
(11)A member of the Council who has an interest in relation to any matter to be discussed at a meeting of the Council, which reasonably considered, may preclude him or her from performing his or her duties in a fair, unbiased and proper manner, must recuse himself or herself from such meeting.
(12)Any member of staff of the Provincial Archives may, on invitation by the Council, attend a meeting of the Council.
(13)The Council may invite any person to attend any of its meetings.

14. Recusal of member of Council

(1)A member of the Council must recuse himself or herself in any matter or proceeding where he or she, a family member or close associate has or reasonably could be expected to have, a financial or other interest in the outcome of a decision by the Council.
(2)Any person may make an application, orally or in writing, for a member of the Council to recuse himself or herself where that person has reason to believe that the member of the Council, a family member or close associate has or could reasonably be expected to have a financial or other conflict of interest in the outcome of a decision by the Council.
(3)A person making an application referred to in subsection (2) must give reasons for his or her request.
(4)In the event of an application referred to in subsection (2), the chairperson of the Council must decide on the matter, save that in cases where the application concerns the chairperson of the Council the matter must be decided on by the deputy chairperson.
(5)Any disclosure made in terms of subsection (1) must be recorded in the minutes of the meeting in question.
(6)If it subsequently emerges that the Council took a decision on a matter in respect of which a member has failed to disclose an interest contemplated in subsection (1), such decision by the Council is invalid.
(7)For the purposes of this section-
(a)a “close associate” includes, but is not limited to, a business partner or employer; and
(b)a “family member” includes, but is not limited to-
(i)a spouse of a member of the Council;
(ii)a partner in a customary union or a person with whom a member of the Council cohabits or lives as though they were married; or
(iii)a child, parent or sibling of a member of the Council.

15. Committees of Council

(1)The Council may appoint one or more committees, not limited to its own members, to assist it in the exercise of its powers and the performance of its duties and functions.
(2)Any committee appointed in terms of subsection (1) must be chaired by a member of the Council.
(3)A committee contemplated in subsection (1) must perform such duties and functions as the Council may determine.
(4)The Council may, at any time, dissolve or reconstitute such a committee.
(5)The Council-
(a)may delegate any of its powers, duties or functions to a committee appointed in terms of subsection (1);
(b)is not absolved from exercising or performing any power, duty or function so delegated; and
(c)may amend, review or rescind any decision of a committee.
(6)Any delegated or assigned power, duty or function exercised or performed by a committee is regarded to have been exercised or performed by the Council.

16. Remuneration of members of Council

(1)
(a)A member of the Council may be paid such remuneration or allowances as may be determined by the responsible Member of the Executive Council in consultation with the Member of the Executive Council responsible for finance.
(b)A member of the Council who receives remuneration, allowances or other benefits by virtue of his or her post or employment in-
(i)the national government;
(ii)a provincial government;
(iii)a municipality; or
(iv)a corporation, body or institution in which the national or a provincial government has a controlling interest, who continues to receive such remuneration, allowances or other benefits while serving as a member of the Council, may only receive remuneration and allowances referred to in paragraph (a) to the extent required to place such member in the financial position in which he or she would have been were it not for such post or employment.
(2)
(a)A member of the Council and a member of a committee of the Council may, in respect of his or her functions as a member, receive reimbursement for reasonable actual subsistence and travelling expenses necessitated by the actual attendance of a meeting of the Council or a committee of the Council.
(b)The responsible Member of the Executive Council must determine procedures, including control measures, for the management, handling and processing of claims for subsistence and traveling expenses contemplated in paragraph (a).

17. Administrative and secretarial work of Council

The administrative and secretarial work incidental to the performance of the functions of the Council must be performed by officers in, or employees of, the Department designated for such purpose by the Head of Department in accordance with the Public Service Act, 1994 (Proclamation No. 103 of 1994).

Chapter 5
Public records

18. Management and care of public records

(1)Subject to this Act, the Provincial Archivist is charged with the promotion, coordination and monitoring of proper management and care of public records in the custody of any governmental body in the Province.
(2)No public record under the control of any governmental body may be-
(a)transferred to an archives repository;
(b)transferred to an off-site storage facility or any other site outside of the ordinary premises of the governmental body concerned;
(c)destroyed;
(d)erased; or
(e)otherwise disposed of, without the written authorisation of the Provincial Archivist.
(3)The Provincial Archivist may refuse to grant the authorisation contemplated in subsection (2) in respect of he transfer of records to an off-site storage facility or any other site outside of the ordinary premises of the governmental body concerned, if he or she has any reason to believe that-
(a)the identified off-site storage facility or any other site outside of the ordinary premises of the governmental body concerned, is not suitable for the preservation of records; or
(b)the transportation of the records to an off-site storage facility or any other site outside of the ordinary premises of the governmental body concerned, could somehow lead to the destruction of the records concerned.
(4)The Provincial Archivist’s authorisation for the transfer of public records to an off-site storage facility or any other site outside of the ordinary premises of the governmental body concerned in terms of subsection (2) does not divest the head of the governmental body concerned from his or her duties to ensure that such records are properly managed in accordance with this Act.
(5)The Provincial Archivist must determine-
(a)the records classification system to be applied by governmental bodies;
(b)the conditions subject to which records may be microfilmed or electronically reproduced; and
(c)the conditions subject to which records systems must be managed.
(6)The Provincial Archivist may, with or without any notice to the head of a particular governmental body, inspect public records during office hours, in so far as such inspection may be necessary for the performance of his or her functions in terms of this Act: Provided that-
(a)the inspection of the public records which contain information, the disclosure of which is restricted in terms of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000) or any other law, must be done with the consent of the head of the governmental body concerned; and
(b)the powers conferred upon the Provincial Archivist in terms of this provision also apply in respect of public records kept in an off-site facility or any other site outside of the ordinary premises of the governmental body.
(7)The Provincial Archivist may issue written directives and instructions to the heads of governmental bodies in the Province in relation to the management and care of public records in the custody of such governmental bodies: Provided that such directives and instructions are not inconsistent with the powers of the Provincial Archivist in terms of this Act and the regulations.
(8)
(a)Subject to-
(i)any law governing the employment of personnel of the governmental body concerned; and
(ii)such other requirements as may be prescribed, the head of each governmental body in the Province must designate an official as the records manager of the governmental body concerned.
(b)A records manager contemplated in paragraph (a) is responsible for ensuring that the governmental body concerned complies with the-
(i)requirements of this Act; and
(ii)written directives and instructions issued by the Provincial Archivist from time to time as contemplated in subsection (7).
(9)
(a)The head of any governmental body may, in the event that such governmental body is, for any justifiable and cogent reason, not able to comply with any provision of this Act, make written application to the Provincial Archivist for exemption from compliance with such provision.
(b)An application for exemption made in terms of paragraph (a), must-
(i)contain sufficient and motivated reasons as to why the governmental body is unable to comply; and
(ii)be made within 14 days of the date upon which the head of the governmental body concerned first became aware that the governmental body is unable to comply.
(c)In deciding whether to grant any application made in terms of paragraph (a), the Provincial Archivist must consider whether-
(i)the application complies with the requirements contemplated in paragraph (b); and
(iii)the non-compliance is preventable.
(d)Any head of any governmental body, aggrieved by the decision of the Provincial Archivist contemplated in paragraph (c) may, within 7 days, appeal in writing in the manner prescribed to the responsible Member of the Executive Council.

Chapter 6
Non-public records

19. Acquisition of non-public records

(1)The Provincial Archivist may, subject to this Act, on behalf of the Provincial Government, acquire by-
(a)purchase;
(b)donation; or
(c)loan for a temporary or a longer period, 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 provincial significance and which cannot be more appropriately preserved by any other institution.
(2)Subject to any conditions as may be applicable, non-public records acquired in terms of subsection (1) must be deposited in the archives repository determined by the Provincial Archivist.
(3)The Provincial Archivist must maintain provincial lists of non-public records with enduring value: Provided that the Provincial Archivist must, in maintaining the lists of non-public records, consult the institutions having custody of such records.

Chapter 7
Custody and preservation of, and access to, archivalia

20. Custody and preservation of archivalia

(1)The responsible Member of the Executive Council may, in consultation with the Council and by notice in the Gazette-
(a)establish archives repositories under the control of the Provincial Archivist; and
(b)determine the area of jurisdiction for each archives repository established in terms of paragraph (a).
(2)
(a)The Provincial Archivist must, in respect of each archives repository and subject to the Public Service Act, 1994 (Proclamation No. 103 of 1994), designate an officer or employee, contemplated in section 6, as the head of each archives repository.
(b)The head of an archives repository, designated as such in terms of paragraph (a), must-
(i)assist the Provincial Archivist with the administration and management of an archives repository; and
(ii)exercise such powers and perform such duties and functions delegated to him or her by the Provincial Archivist in terms of section 26(3).
(3)Public records identified in a disposal authority as having enduring value, may, subject to the regulations, be transferred to an archives repository when they have been in existence for 20 years: Provided that-
(a)no other law requires such records to be kept in the custody of a particular governmental body or person;
(b)the Provincial Archivist may, after consultation with the head of a governmental body, identify such records which must-
(i)remain in the custody of a governmental body; or
(ii)be transferred to an archives repository before they have been in existence for 20 years; or
(c)the Provincial Archivist may defer the transfer of any public record.

21. Access to archivalia

(1)The Provincial Archivist must grant any member of public access to any archivalia which is-
(a)a public record: Provided that-
(i)such access is not prohibited in terms of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), or any other law governing access to any public record;
(ii)a period of 20 years has elapsed since the end of the year in which the record came into existence; or
(iii)the Provincial Archivist has, upon request, granted access to such a 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; or
(b)non-public record, subject to any conditions agreed upon at the acquisition of such record in terms of section 19.
(2)Notwithstanding subsection (1), the Provincial Archivist may refuse access to any archivalia in his or her possession, if-
(a)the archivalia concerned is in a fragile condition and if it is impossible to grant access to such archivalia in any other form;
(b)the conditions contemplated in subsection (1)(b) prohibit such access;
(c)any of the grounds for refusal of access to records contemplated in Chapter 4 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), prevail; or
(d)access to such archivalia is prohibited in terms of any other law.
(3)Any person aggrieved by the decision of the Provincial Archivist contemplated in subsection (2) may within 21 days appeal, in writing, in the manner prescribed to the responsible Member of the Executive Council.

Chapter 8
Annual plans and reports

22. Annual plans

The Provincial Archivist, after consultation with the Council, must, before the beginning of any financial year or at such other time as the responsible Member of the Executive Council may determine, submit to the responsible Member of the Executive Council for approval, an annual plan of the Provincial Archives for each financial year containing-
(a)details of planned activities of the Provincial Archives for that financial year;
(b)measurable objectives, expected outcomes, outputs, performance indicators and targets; and
(c)such further information as the responsible Member of the Executive Council may determine.

23. Annual reports

(1)The Provincial Archivist, after consultation with the Council, must, through the responsible Member of Executive Council, table an annual report on the activities of the Provincial Archives in the Provincial Legislature within five months after the end of each financial year.
(2)The annual report contemplated in subsection (1) must-
(a)state the extent to which the Provincial Archives has achieved or advanced the objects of this Act and the measurable objectives as set out in its annual plan, as contemplated in section 22, during the financial year concerned;
(b)contain relevant performance information regarding the economic, efficient and effective application of resources and specifically a comparison between planned and actual performance indicators as set out in that annual plan; and
(c)contain a report-
(i)on all cases of unauthorised destruction of public records investigated by the Provincial Archives; and
(ii)providing the details of all governmental bodies in the Province that have failed to comply with any provision of this Act.

Chapter 9
Provincial Records Management Policy

24. Provincial Records Management Policy

The responsible Member of the Executive Council must, after consultation with the Council, develop, determine and approve a Provincial Records Management Policy.

Chapter 10
General provisions

25. Regulations and notices

(1)The responsible Member of the Executive Council may, by notice in the Gazette and after consultation with the Council, make regulations prescribing-
(a)any matter which is required or permitted to be prescribed in terms of this Act; or
(b)any administrative or procedural matter necessary to give effect to the provisions of this Act.
(2)The responsible Member of the Executive Council may, by notice in the Gazette-
(a)in consultation with the Member of the Executive Council responsible for finance; and
(b)after consultation with the Council, determine fees that the Provincial Archivist may charge for-
(i)the utilisation of certain facilities in the Provincial Archives; or
(ii)any utilisation or reproduction of certain archivalia for commercial or income generating purposes.
(3)The responsible Member of the Executive Council may, by notice in the Gazette after the required consultation contemplated in subsections (1) and (2), as the case may be-
(a)amend;
(b)substitute;
(c)withdraw; or
(d)repeal, any such regulation or notice.

26. Delegations

(1)The responsible Member of the Executive Council may delegate to the Head of Department-
(a)any power conferred on the responsible Member of the Executive Council by this Act, except the power, in terms of-
(i)section 25(1), to make regulations;
(ii)section 25(2), to issue a notice determining fees; or
(iii)section 25(3), to amend, substitute, withdraw or repeal any regulations issued in terms of section 25(1) or (2); or
(b)any duty imposed on the responsible Member of the Executive Council by this Act, except any duty regarding the appointment and termination of office, of the members of the Council contemplated in sections 9 and 12.
(2)The Council may delegate to the Provincial Archivist any power or duty conferred or imposed on the Council by this Act.
(3)The Provincial Archivist may delegate to the head of an archives repository or any member of staff of the Provincial Archives any power or duty conferred or imposed on him or her by this Act.
(4)Any power or duty delegated in terms of subsection (1), (2) or (3) must be exercised or performed subject to such conditions as the person or body that made the delegation considers necessary.
(5)Any delegation in terms of subsection (1), (2) or (3)-
(a)must be in writing;
(b)may not prohibit the person or body that made the delegation from exercising that power or performing that duty; and
(c)may at any time be withdrawn or amended in writing by that person or body.

27. General offences

(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 any public or non-public record in the control of a governmental body, is guilty of an offence.
(2)Any person who falsely claims that he or she is authorised to charge or collect fees on behalf of or by direction of the Council or the Provincial Archives, is guilty of an offence.
(3)Any person who obstructs or prevents the Provincial Archives or the Council, including any officer or agent of the Provincial Archives or the Council, in the exercise of any powers or function conferred in terms of this Act, is guilty of an offence.

28. Penalties

Any person convicted of an offence in terms of this Act is liable to a fine or to imprisonment for a period not exceeding two years.

29. Repeal of law

The KwaZulu-Natal Provincial Archives Act, 2000 (Act No. 5 of 2000), is hereby repealed.

30. Transitional arrangements and validation

(1)Any act, determination, designation, decision, matter or any other thing done, made, taken, executed or carried out or purported to have been done, made, taken, executed or carried out by the Provincial Archivist, an officer or member of staff of the Provincial Archives, the responsible Member of the Executive Council in terms of or in pursuance of the repealed KwaZulu-Natal Provincial Archives Act, 2000 (Act No. 5 of 2000), to the date of commencement of this Act, is not invalid by reason of-
(a)having been so done, taken, made, carried out, or executed before the date of the coming into operation of the repealed KwaZulu-Natal Provincial Archives Act, 2000;
(b)the regulations referred to in the repealed KwaZulu-Natal Provincial Archives Act, 2000, not having been made and published by the responsible Member of the Executive Council; and
(c)any procedure, process, requirement, condition or detail referred to in the repealed KwaZulu-Natal Provincial Archives Act, 2000, not having been determined or prescribed by regulation, as contemplated in the repealed KwaZulu-Natal Provincial Archives Act, 2000.
(2)
(a)The appointment of any officer, employee or member of staff of the Provincial Archives established in terms of section 2 of the repealed KwaZulu-Natal Provincial Archives Act, 2000 (Act No. 5 of 2000), in terms of or in pursuance of the repealed KwaZulu-Natal Provincial Archives Act, 2000, to the date of commencement of this Act, is not invalid by reason of-
(i)having been made before the date of the coming into operation of the repealed KwaZulu-Natal Provincial Archives Act, 2000;
(ii)the regulations referred to in the repealed KwaZulu-Natal Provincial Archives Act, 2000, not having been made or published by the responsible Member of the Executive Council; or
(iii)any procedure, process, requirement, condition or detail referred to in the repealed KwaZulu-Natal Provincial Archives Act, 2000, not having been determined or prescribed by regulation, as contemplated in the repealed KwaZulu-Natal Provincial Archives Act, 2000.
(b)A person who, on the day before the date of the commencement of this Act, was an officer, employee or member of staff referred to in paragraph (a), is regarded as having been appointed in terms of section 6 of this Act with the retention of all rights and benefits.
(c)The person who, on the day before the date of commencement of this Act, was the Provincial Archivist of the Provincial Archives established in terms of section 2 of the repealed KwaZulu-Natal Provincial Archives Act, 2000, is regarded as having been appointed as the Provincial Archivist in terms of section 4 of this Act with the retention of all rights and benefits.

31. Short title

This Act is called the KwaZulu-Natal Archives and Records Service Act, 2011.
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History of this document

14 November 2012 this version
Commenced
02 October 2012
Assented to

Subsidiary legislation

Title Numbered title
KwaZulu-Natal Archives and Records Service Regulations, 2014 Provincial Notice 151 of 2015