M&G in court for report on Zim elections

Lawyers for the Mail & Guardian on Monday described the government’s contention that two eminent SA judges were sent to Zimbabwe in 2002 as special envoys on a confidential diplomatic mission as “nonsense on stilts”.

This newspaper applied to the High Court in Pretoria for access to a report compiled by Judges Dikgang Moseneke and Sisi Khampepe, containing their conclusions about the fairness of Zimbabwe’s 2002 presidential election.

The presidency opposed the application, contending that the release of the report would lead to a deterioration in relations between the two countries.

The government also contended the report was still being used to formulate policy on Zimbabwe, was a “record of Cabinet” and that the Promotion of Access to Information Act therefore did not apply.

Jeremy Gauntlett SC, for the M&G, argued there were no current documents or affidavits to support the “flimflam” that the judges were “some sort of new Marco Polos for the president”.

Their mission had not been handled by the Department of Foreign Affairs, but by the president’s office and it was clear the judges had consulted with a wide cross-section of organisations, not just with Zimbabwe’s government.

There was also no confirmation that the judges and former chief justice Arthur Chaskalson would have lent themselves to such an extraordinary arrangement just a month after the Constitutional Court ruled judges could not be “borrowed” for executive functions.

There was no indication the judges had agreed in advance they would be acting under complete secrecy, he said.

‘Cinderella slipper’
Gauntlett argued the two judges were sent on a fact-finding mission and that former president Thabo Mbeki only afterwards decided their report would be a good basis for policy decisions.

Regarding the argument that the Promotion of Access to Information Act did not apply, Gauntlett said there was no evidence the Cabinet ever considered the report and the government could now not use this technical argument “to squeeze a factual foot into a Cinderella slipper which does not fit it”.

The M&G contended the report was of enormous public interest, especially since there was a widespread view that the 2002 elections were marred by vote-rigging, intimidation, violence and fraud by President Robert Mugabe’s government.

It contended the report was particularly important in light of the fact that South Africa was one of the only countries to declare it regarded the election as free and fair.

The president’s envoys
The presidency’s lawyer Marumo Moerane SC, stressed the need for confidentiality and trust between Zimbabwe and South Africa.

“In the respondents’ view, it would not only be remiss of them to disclose this information which was given in strict confidence, but such disclosure could also impair South Africa’s ability to continue to play a facilitating role in assisting Zimbabweans to resolve their political differences.”

Moerane argued the two judges were received in Zimbabwe as the president’s envoys and were expected to discuss and receive information in confidence.

“It could hardly be considered appropriate for the facilitator of the dialogue to be seen to be breaching confidences that were shared for a specific purpose,” Moerane added.

The application continues before Acting Judge L Sapire. - Sapa

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