Court orders 'confidential' Zim report released

In a clear victory for this newspaper as well as access to information in South Africa generally, the high court in Pretoria has ordered a confidential report on the 2002 Zimbabwe election be released.

Acting Judge L Sapire has ordered the Presidency to hand over a report on the elections to the Mail & Guardian within seven days, and to pay the costs of the newspaper’s court application.

The M&G applied earlier this year 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 M&G brought the application to court under section 82 of the Promotion of Access to Information Act (PAIA), after two previous attempts were rebuffed by the Deputy Information Officer in the Office of the Presidency.

The 2002 report was compiled by Judges Dikgang Moseneke and Sisi Khampepe, acting as special envoys to Zimbabwe for then-President Thabo Mbeki.

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

It was especially important in light of the fact that South Africa was one of the few countries to declare it regarded the election as free and fair.

In its response to the M&G application, the Presidency argued that the report was a Record of Cabinet, which excluded it from the ambit of PAIA in terms of Section 12(a) of the act.

It also claimed it was justified in withholding the judicial report, since doing so would reveal confidential exchanges between the governments of South Africa and Zimbabwe (a limitation contained in Section 41 of the act).

The Presidency further claimed that information contained in the report would assist government in policymaking, and was therefore exempt from the act in terms of Section 44.

No first-hand knowledge
But the Presidency’s argument foundered, Sapire said, because “the Act places an onus on those denying access to establish their justification therefore”.

In the absence of any affidavits submitted by persons with first-hand knowledge of the judges’ mission - namely Moseneke, Khampepe and Mbeki - Sapire was unable to accept the Presidency’s submissions.

Instead, he found that deponents who submitted affidavits on behalf of the Presidency could not have the personal knowledge to testify as to “what took place in Zimbabwe and how and from whom the information was obtained”.

As such, it was not possible to find either that the report would reveal confidential exchanges between two governments or that it would assist the South African government in formulating policy towards Zimbabwe.

No cabinet records
Sapire further concluded that “the Judges made their report directly to the President and that it remains in the office of the President until this day without it ever being incorporated in the Records of Cabinet”. He refused to accept that “the President on his own — is the Cabinet”.

M&G attorney Dario Milo confirmed that he will be writing to the state attorney “to remind him to provide us with the report within the 7-day period” which expires on Friday this week.

A spokesperson for the Presidency was not immediately available for comment.

For more on the M&G‘s bid to force the president to release the 2002 Zimbabwe election report view our special report

Lionel Faull

Lionel Faull

Lionel is a reporter at the Mail & Guardian Centre for Investigative Journalism, Amabhungane. Read more from Lionel Faull

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