/ 8 August 2012

Zim report battle: Lawyers sent back to drawing board

ZImbabwe's President Robert Mugabe.
ZImbabwe's President Robert Mugabe.

The Mail & Guardian's four-year battle to gain access to a report on the legal and constitutional situation in Zimbabwe prior to the country's 2002 election was put on hold again in the North Gauteng High Court in Pretoria on Tuesday after Judge Joseph Raulinga asked both the lawyers for the state and the M&G to supplement their submissions with additional arguments.

Raulinga said this was a very important matter and that he wanted to "get more flesh" on their respective arguments' bones before making any conclusions.

The parties were given 15 days in which to file the submissions, and judgment was reserved.

The matter has been through the high court, Supreme Court of Appeal and the Constitutional Court over the past four years. The Constitutional Court found that the courts had been "hamstrung" by the fact that they did not have access to the report itself and referred the matter back to the High Court so it could have a confidential "judicial peek" at the report in order to better assess he arguments around it.

After Raulinga read the report, the state was given the opportunity to make ex-parte representations – submissions made to the judge without the M&G's lawyers present – to further their arguments for why the report should not be disclosed.

But its submissions consisted largely of two affidavits, from former president Thabo Mbeki and President Jacob Zuma, concerning the purpose of the commissioning the report, the way it has been used, and general comments on why it should not be disclosed.

On Tuesday, advocate Frank Snyckers, counsel for the M&G, argued that the affidavits the state had submitted did not cure the deficiencies in the state's case that the Constitutional Court had found.

"They were supposed to come and speak to your lordship about the report. They were supposed to remedy that 'hamstringing'. They chose not to do that … because they knew from the start the report does not bear out what they say," he said.

Snyckers said the evidence put up by the state was insufficient, and that the function of referring the matter back to the high court "was not to supplement the state's case but simply to look at the [report itself] and see whether [it] helps".

But advocate Marumo Moerane, acting for the state, said the affidavits were material evidence that the court should take into account when deciding the issue.

The purpose of the affidavits was "to place the report in its proper political context, to assist [Judge Raulinga] in exercising his duty responsibly," he said.

Moerane said that although Snyckers had objected to the affidavits being accepted as evidence because they did not refer to particular paragraphs of the report, this was only one approach to the ex-parte representations.

"There would be nothing wrong in adopting that approach, but it's not the only approach," he said.

Raulinga asked both parties to clarify their arguments on whether the affidavits should be admitted as evidence.

Reasons for mandatory disclosure
Raulinga also asked for more detail on the parties' interpretation of section 46 of the Promotion of Access to Information Act (Paia) under which the M&G applied for access to the report.

This section of the Act deals with the circumstances under which there should be a mandatory disclosure of information in the public interest.

Information must be disclosed in the public interest if it would reveal evidence of a substantial contravention of the law, or an imminent and serious public safety or environmental risk, or if the public interest in the disclosure of the record clearly outweighs the harm that might result in making it public.

Moerane argued that none of these reasons applied in this case. He said there was no evidence that the public interest outweighed the harm that might result to South Africa's diplomatic relations and its relationship with Zimbabwe if the report was disclosed and that disclosing the report would not reveal evidence of a substantial contravention or failure to apply the law or that it would show serious environmental or public risk.

"Section 46 does not apply. Therefore the record is protected," he said.

Rauling left it open to the parties to also supplement their positions on "any other matter" that they think is important.

"You've left me … between a rock and a hard place," he said, before adjourning.