The Mail & Guardian has filed an unprecedented application to the Constitutional Court as it attempts to expedite its almost five-year legal battle to gain access to a critical report on the 2002 Zimbabwe elections.

In February, President Jacob Zuma and the presidency were ordered by Judge Joseph Raulinga in the North Gauteng High Court to hand over the report to the M&G within 10 days.

The report contains the findings of justices Sisi Khampepe and Dikgang Moseneke, who were sent to Zimbabwe by then-president Thabo Mbeki to observe the elections.

After taking a "judicial peek" at the report, Raulinga confirmed the report cast doubt over the legality of the elections. "Without disclosing the contents of the report, I can reveal that it potentially discloses evidence of substantial contravention of, or failure to comply with, the law," Raulinga wrote in his judgment.

The presidency has filed a notice of an application for leave to appeal the judgment to the full bench of the North Gauteng High Court.

However, Dario Milo, a partner at Webber Wentzel law firm, has filed an application on behalf of the M&G, seeking an order that the presidency file its application for leave to appeal the judgment to the Constitutional Court "in order to obviate any further delay or abuse of process".

"I submit that the relief sought is well within the court's power to ensure a just and equitable result in the interests of justice, and the circumstances militate strongly in favour of the directions sought," wrote Milo. The respondents' application for leave to appeal, he claimed, was a "delaying strategy".

Delaying strategy
"In my experience, bona fide litigants typically seek the expedient finalisation of litigation in the interests of saving time and costs. This, however, does not appear to be the position adopted by the respondents [who] have … succeeded in delaying the granting of access to the report for nearly five years, despite having failed to convince a single court thus far that their refusal to grant access to the report is justified."

The respondents' application had necessitated this course of action to prevent any course liable to obstruct "the expeditious finalisation of this matter".

Because the presidency had "again" lost in the high court, it was now seeking to appeal to a full bench of the high court, wrote Milo. "Implicit in this approach is the tactic to pursue an unmeritorious appeal through every conceivable tier in the appeal hierarchy."

The application has also requested that a copy of the report be given to the members of the Constitutional Court and to the M&G legal representatives so they can prepare for the application for leave to appeal, as well as for the appeal itself.

The legal battle began after the M&G lodged a Promotion of Access to Information Act request with the presidency. This was refused and the matter went to court, where it was ruled that the full document had to be released. The presidency appealed this and a subsequent judgment in the Supreme Court of Appeal, and the matter went before the Constitutional Court, which sent the matter back to the high court.

Raulinga found that there was enough public interest to trump the presidency's argument that the report contained privileged information that was given by Zimbabwean officials, and releasing it would damage diplomatic relations. The M&G's request is lent further relevance by the forthcoming Zimbabwe election. – Additional reporting by Sipho Kings

Setback for sue 'em Zuma

Will President Jacob Zuma go down in history as South Africa's most litigious leader?

The jury is still out but the way his R5-million defamation case against Rapport played out this week revealed a familiar pattern in his lawsuits against the media.

Rapport's lawyer Willem de Klerk said everybody had a right to access the courts. But Zuma had had a "bout" of cases in which he issued and served summonses and then little action was taken to pursue them to trial, he said.

"This leads one to conclude that there could be an ulterior purpose and that purpose could be to intimidate," said De Klerk.

Zuma's case against the newspaper was dismissed this week with costs after his legal team failed to respond to an interim court order.

In his defamation cases against the media, Zuma frequently claims R5-million in damages. They are usually for personal damages so, if he won or the cases were settled out of court, the amounts would usually be awarded to him.

"I don't know who is funding the cases, whether it comes from his own pocket or the fiscus, I don't know," said De Klerk.

"However, the financial implications don't seem to be a concern. At one point, I counted and there were 14 cases against the media in four years."

Zuma's spokesperson, Mac Maharaj, referred the Mail & Guardian to the president's personal lawyer Michael Hulley but he could not be reached for comment. – Glynnis Underhill