The Biko autopsy report: what's the 'right thing' to do?

Posted on January 27, 2015
On 2 December 2014 the Steve Biko Foundation (SBF) issued a press release saying that it had filed an urgent application to halt the sale of an 'original autopsy report of the late Steve Biko' offered for sale at auction on the following day. The SBF argued that the document "was the property of the Biko Family and should not be sold for private gain by third parties and the Repor "is one that the Biko Family and the Steve Biko Foundation wish to preserve and display to all South Africans to further the legacy of the late activist".

On the day it was scheduled to take place the South Gauteng High Court in Johannesburg halted the sale. According to a Press Release issued by the Legal Resource Centre, 'the auctioneers and the children of Mrs Steel agreed to an undertaking whereby they may not sell, alienate, destroy, damage, copy or otherwise transfer ownership of the Steve Biko report before 31 January 2015.'

Following this ruling, the SBF and the Biko family issued a press release in which they expressed the hope that the vendors, Clive and Susan Steele, would to return the Report voluntarily to the Biko family.

The Steeles responded arguing that the document sent to auction was a file copy rather than an original and that it had been in the public domain for over 37 years, since it had formed the basis for exhaustive cross-examination at the inquest into Biko’s death. They insisted that Nkosinathi Biko, the son of the late anti-apartheid activist and Trustee of the SBF owed them an apology for 'making harmful and damaging public statements about us and our motives'. Nkosinathi Biko replied, 'We had hoped that the Steeles would do the right thing, and on moral grounds at least, return the autopsy documents to the Biko and Timol Families' adding that 'Since they have declined to do so, we have no choice but to continue the legal process.'

The question is, what is the 'right thing' to do?

To determine this it's necessary to unpack the circumstances through which the Steeles came to be in possession of the Report. This is of interest not only because it brings into question their claim to ownership but also because it brings into play apartheid era record-keeping practices. The description of the Report in the Walding Westgate Auctioneers catalogue, which indicates that the documents are expected to sell for between R70,000.00 and R100,000,00.00, details the provenance of the Report stating that it was, 'Given to the vendor's mother, Mrs Maureen Steele, who was employed by Dr Jonathan Gluckman as his personal private secretary from June 1969 to February 1978', explaining that Gluckman had asked Mrs Steele to keep copies of this and other reports because he was 'concerned about the safety of such documents as his offices had been bugged and he had received numerous death threats'. Gluckman clearly understood the value and significance of the records as evidence of illicit activity and he understood that as an outspoken critic of the treatment meted out by police to detainees his premises might be raided and that his records might be confiscated and destroyed. What he did was entirely in keeping with the actions of other activists of the time and his fears were realised in the early 1990s when police removed numerous files from his offices. The confiscation of private and organisational records and the massive destruction of incriminating public and non-public records by apartheid authorities is well documented in the Final Report of the Truth and Reconciliation Commission. It is not clear whether the records seized from Gluckman were returned or whether other copies had been made because in 1995, a number of files relating to deaths in detention, then in the care of Medical Rescue International (MRI), were handed over to Wits Historical Papers. But, by then the Biko files were missing, reportedly stolen during a break-in at MRI's premises.

It is evident from the information included in the Walding Westgate catalogue that the Steeles must have known Gluckman had handed documents to their mother for safekeeping rather than as a gift, and that no transfer of ownership was intended or inferred. Under those circumstances the 'right thing' for the Steeles to have done might have been to return the documents in their possession to Dr Gluckman, or the executors of his estate or to seek advice from the National Archives or another appropriate organisation. With a little research they may have discovered that the Historical Papers Research Archive at the University of the Witwatersrand has a large collection of Gluckman's records, but not any relating to Biko. Instead of choosing to profit from the sale of the records the 'right thing' to do might have been to give the Report to Wits where it could be accessed and understood in the context as a part of the Gluckman collection. The Steeles may also have considered presenting the documents to the SBF where they would be complement other family and organisational records relating to Biko's life, death and legacy.

Does the fact that the document is a copy rather than an original matter? Again, one has to pay careful attention to context. If the document in question were to be a copy of an original that was accessible in one form or another, it may have been acceptable to offer it for sale. In their statement responding to the SBF's application to halt the sale of the report the Steeles argue that the report sent to auction was not an original document but merely a file copy of one that had been in the public domain for over 37 years and had formed the basis for exhaustive cross-examination at the inquest into Biko's death. According to the Steeles, the original copy of the autopsy report would have been signed by all the attending doctors and would have contained photographs, which the report offered on auction did not. Michele Pickover, principal curator at Historical Papers Research Archive shares this opinion, mentioning in a report carried on News 24 that based on other Gluckman files handed over by MRI to Wits for safe-keeping, the Biko file should have included photographs as well as the report. But what if this proves to be the only extant reproduction of the report? Surely then, given Biko's iconic status, the 'right thing' to do is recognise that it is of national significance and should be deposited either in the National Archives or in another appropriate institution where it would be preserved and made accessible.

The Steeles argue further that the report is 'a document of public record at the national or other archives' and is available to members of the public via the Promotion of Access to information Act No 2 of 2000 (PAIA). It is an unfounded assumption shared by their lawyer, Jeremy Clark who, in an interview with City Press is reported to have said that, 'If the Biko family wants a copy of the autopsy, they need to go to the national archives to get their own copy.' While the Steeles and their lawyer may be correct in assuming that the document sent to auction is a copy, there is certainly no trace of the autopsy report in the database of records accessible to the public in the National Archives. This does not necessarily mean that the record is not to be found in the National Archives - the search continues!

Information about records held in the collections of the National Archives and several other participating institutions may be accessed online through the National Automated Archives Information Retrieval System (NAAIRS). A search, using 'Biko' as a keyword, on this database in December 2014 brought up 105 records. Nearly half of these refer to other people who share the surname 'Biko'. Thirty-eight of the records relating to Steve Biko are classified as 'objectionable literature'. These include books, posters and pamphlets commemorating Biko's death. There is no trace of any record relating to either the autopsy or the subsequent inquest in the National Archives. Why not? Not all public records are held in perpetuity; it is estimated that about 95% of all public records are destroyed in accordance with archival policies and regulations that make provision for public records to be appraised. Records deemed to be of enduring significance are retained for posterity in archival repositories. Those that do not meet these criteria are destroyed. In South Africa in the 1970s and 1980s autopsy and inquest records were routinely destroyed ten years after they came into existence.

Three of the records listed on the NAAIRS refer to collections held in university libraries: 'Black Consciousness' (Unisa), 'Black People's Convention' and 'Security Trials' (Wits University Library). Three sets of records relating directly to Biko's death are listed: the 'Biko Doctors Case Collection' (UCT Libraries) and microfilm copies of the inquest into the death of Biko purchased from Microfile (UCT Libraries and Unisa). Although the autopsy report is referred to as an addendum to the inquest report neither it, nor any of the other addenda, appear on the microfilm. Handwritten annotations on the inquest report indicate that it was a working document in the possession of George Bizos who represented the Biko family at the Inquest.

Does it matter that this Report contains medical information and that this was acquired through a medico-legal autopsy – a statutory requirement (in terms of the Human Tissue Act No 65 of 1983) which mandates the examination of bodies of deceased people who have died as a result of other than natural causes or where the cause of death is not apparent or of an unexpected nature in order to facilitate further legal decisions and proceedings? In their initial press release the SBF cited the opinion of Professor Ames Dhai of Wits University's Steve Biko Centre for Bioethics saying, 'the sale of medical records is morally reprehensible and contravenes best practice in bioethics. Through their actions the sellers are commodifying and commercialising human data'. The sale of medical records may be unethical, but is it illegal and is it relevant that the contents of the Report were publicised at the time of the inquest? In their Founding Affidavit, the SBF note that 'the documents may be protected in terms of Section 17 of the National Health Act and the regulations thereunder'.

The Steeles contest Nkosinathi Biko's claim that the document was an independent report commissioned by the Biko family, arguing that it had been prepared by four medical specialists in addition to Dr Gluckman in accordance with the Criminal Procedure Act No 51 of 1977. This raises the possibility that further copies retained by members of the medical or legal teams or even state functionaries may come to light. The TRC Report notes that, 'Numerous individual state officials used the cloak provided by the destruction endeavour to destroy or remove documents without authorization.' While there may have been many and various motives for doing this, it is entirely possible that those who still retain possession of these documents may, realising that they have substantial monetary value, be tempted to offer them for sale.

What is the 'right thing' for dealers to do under such circumstances? In the case of the Biko records it is clear, from the description in the catalogue, that the auctioneers understood the circumstances by which the documents came into the possession of the Steeles. While there is no legislation in South Africa that outlaws the trade in historical documents such as these, in terms of Section 23 (c) of the Second Hand Goods Act No 6 of 2009, a dealer may not 'take into his or her possession goods unless he or she is convinced on reasonable grounds that the seller of the goods is the owner or titleholder thereof or is duly authorised to dispose thereof.'

In their Founding Affidavit to the High Court the Trustees of the SBF state that the Report is 'of great historical importance' and that as a 'part of the nation's heritage' it should be preserved in the interests of all South Africans. Noting that the identity of purchasers may not be disclosed they argue that there is a risk that the Report may be bought by a foreign bidder and removed from the country. Or, if purchased by a local bidder that it might be 'hidden, destroyed, manipulated, defaced, interfered with or resold'. What then is the 'right thing' to do to ensure that the Report is available and accessible to South Africans?

At the heart of this is another question. Are South African archives and records adequately protected in law? Are those in authority doing the 'right thing' to protect the country's archival heritage?

The National Archives and Services Act No 43 of 1996 regulates the management and care of public records, the records of government, but it does not place any obligations on individuals or organisations who own or have custody of non-public records, nor does it place any obligations on the National Archives in respect of these collections. This does not mean that the National Archives does not have an important role to play in terms of the protection of the nation's archival heritage and the preservation of non-pubic records. Amongst the objects and functions of the institution detailed in the Act, and relevant to the topic under discussion here, are the requirements to: preserve public and non-public records with enduring value for use by the public and the state; ensure the proper management and care of all public records and; 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 archive repositories in the past. This power has been exercised in recent years, notably in the case of the Percy Yutar Collection which was purchased from Yutar, who led the prosecution in the Rivonia Trial, by the Brenthurst Library and subsequently donated to the National Archives, where it has been preserved and made accessible to the public.

The National Heritage Resources Act No 25 of 1999 (NHRA) makes provision for the protection and management of national heritage resources, including sites and objects, by the South African Heritage Resources Agency (SAHRA). While the Act applies to documents, photographs, films, videos and sound recordings, amongst other objects, it specifically excludes any of these that are public records in terms of the National Archives Act.. Section 32 of the NHRA which deals with 'heritage objects' lists categories of objects which may not be exported without a permit from SAHRA and makes provision for certain types of unique or threatened objects or collections to be declared, listed on a register and protected by law. In 2010, for example, SAHRA declined an application for the export, for auction, of a rare signed copy of the Freedom Charter. This was subsequently purchased, with the support of the Liliesleaf Foundation and handed over to the South African government. Unlike the National Archives Act, the NHRA imposes strict obligations on the owners and custodians of 'heritage objects'. Declared 'heritage objects', such as the Mapungubwe Collection at the University of Pretoria, must be kept in good condition and in a safe place and may not be damaged, destroyed, disfigured or altered and, collections may not be dispersed without a permit from SAHRA.

While the legal niceties of ownership and custody may be argued ad infinitum we are concerned that irreplaceable records in private hands are at risk. Individuals with personal and organisational records that have historical value contact the Archival Platform regularly to ask what should be done with their documents. We hear the concerns that their heirs may just 'throw away all the papers' because they do not understand or appreciate their value. It may be argued that not everyone's papers are equally important: some may be demed to have national significance and some to be of particular provincial or local value or of interest to a particular group or institution. In some instances records may best be preserved in pubic archives, in other instances they might find an appropriate home elsewhere. What is important is that instiutions are open to the possibility of receiving records and develop the appropriate criteria to determine what they may accept. What is at stake if records are unthinkinly destroyed is the irrevocable loss of a resource that is required to reckon with the past, understand the present and imagine the future.

The Archival Platform urges those tasked with the care and custody of the country's archival heritage and the national estate to heed the TRC's warning that 'Swathes of official documentary memory, particularly around the inner workings of the apartheid state's security apparatus, have been obliterated' and that this, together with the destruction of records confiscated from individuals and organisations has 'removed from our heritage what may arguably have been the country's richest accumulation of records documenting the struggle against apartheid.'

It is our contention that the Department of Arts and Culture needs to set in process a national project to gather together what Sello Hatang, CEO of the Nelson Mandela Foundation, described in an interview with City Press as 'fugitive archives' that is, "materials outside of organisational purview and in the possession of private individuals" in accordance with the recommendation of the TRC that, 'the National Archives be enabled to fill the gaps in official memory through the collection of non-public records'. This may be done through a process that involves four sets of acivities: calling on all public archives to embrace their mandate to identify and 'collect non-public records with enduring national significance that cannot be appropriately preserved by another institution' with greater vigour – and allocating the resources required for them to do this effectively ; addressing the gaps in archives and heritage legislation that leave non-public records at risk; and developing a strategy to support the many institutions, including universities, that safeguard elements of South Africa's archival heritage without financial or technical support or acknowledgement. It may also involve offering former state officials who removed public records illicitly an opportunity to return these without fear of censure; That, in our opinion, would really be the 'right thing' to do!

Jo-Anne Duggan is the Director of the Archival Platform