The office of the presidency is claiming an unprecedented degree of executive privilege in an effort to prevent the Mail & Guardian from gaining access to a report commissioned by former president Thabo Mbeki.
The North Gauteng High Court will on Monday 24 May hear argument in the M&G‘s court bid to obtain the report by Deputy Chief Justice Dikgang Moseneke, and Judge Sisi Khampepe in regard to issues surrounding Zimbabwe’s 2002 presidential election. Those polls were widely regarded as rigged in favour of Robert Mugabe.
The report was handed to Mbeki, but has never been considered by cabinet, or made public. The office of the presidency insists however, that it is exempt from the freedom of information laws which govern public institutions.
The M&G attempted to obtain the report using the provisions of the Promotion of Access to Information Act (PAIA), and was refused by the Presidency. An appeal in terms of the act was also refused.
The newspaper is now asking the court to overturn the Presidency’s decision on grounds of open democracy, media freedom, and the public interest.
In heads of argument filed this week, however, the Presidency claims that making public the report will wreck South Africa’s credibility as a mediator.
In an argument that would carve out a complete exemption from Promotion of Access to Information laws for the President and even for cabinet ministers, the presidency’s counsel, Marumo Moerane, argues that as head of cabinet, Zuma is beyond the reach of PAIA.
The legislation specifically states that records of cabinet and its committees are protected from disclosure.
Moerane argues that this exemption should be “clarified” to state that because the President heads cabinet, any and all documents in his possession are beyond the reach of PAIA and the constitution.
“Our submission is that PAIA is not applicable to a record of the President”, Moerane writes, “— on the basis that he is Head of State, the person in whom the entire executive authority of the Republic vests and the head of cabinet and, therefore, in the context of the facts of this case, the record is a record of the cabinet”.
Counsel for the Mail & Guardian, Jeremy Gauntlett, however, says this claim is “unsustainable”.
“The report has not been submitted by the President to the cabinet or any of its official committees; it has not laid before the cabinet or any of its official committees; it has not been discussed or deliberated upon by the cabinet or any of its official committees; it has not been annexed to the minute of any meeting of the cabinet or any of its official committees; and, most importantly, it does not form part of an official archive or record of cabinet minutes and attached documents. The respondents’ version does not even hint at the contrary, let alone establish it”, he says.