The Mail & Guardian’s long-running battle in the North Gauteng High Court in Pretoria to gain access to a judicial report on the constitutional and legal context that surrounded the controversial 2002 presidential elections in Zimbabwe was on Thursday dominated by argument over how to proceed with the matter.
This came after Judge Joseph Raulinga had earlier on Thursday read the report, or taken a “judicial peek”, as ordered by the Constitutional Court in November last year.
Advocate Marumo Moerane, acting for the presidency, which has refused to provide the report compiled by justices Sisi Khampepe and Dikgang Moseneke, argued for a postponement of the matter and that it be heard ex parte (without the other party being present during representations).
Acting for the M&G, advocate Jeremy Gauntlett argued for an in-camera hearing to follow Raulinga’s peek. Gauntlett also argued the newspaper’s counsel would be at a disadvantage if the ex parte route was pursued and they did not have access to the report, which both the judge and those acting for government had seen. Gauntlett said that the paper’s legal team would be incapacitated and unable to raise case law and deficiencies in argument.
The M&G had, three and a half years ago, brought an application under the Promotion of Access to Information Act to gain access to the report, which the newspaper felt was “clearly a matter of public interest”.
The M&G won its first case when the North Gauteng High Court ordered the government to make the report available to the newspaper in its entirety. The order was upheld by the Supreme Court of Appeal.
The Constitutional Court, by a narrow majority, upheld an appeal by President Jacob Zuma’s office and remitted the case to the high court for it to have a “judicial peek” at the report.
The government admits that the report deals with legal and constitutional matters pertaining to Zimbabwe’s presidential election, but contends that it is not for public consumption as it includes confidential information between governments and was commissioned for the purpose of policy formulation.
Meanwhile, the presidency this week produced an affidavit by former president Thabo Mbeki, saying that a “central challenge” at the time of the elections in Zimbabwe “related to the perceived conflict between the provisions of the [Zimbabwean] constitution and certain laws”.
Moerane on Thursday morning argued that the Mbeki affidavit be admitted and argued first, before Raulinga had conducted his “judicial peek”.
Mbeki stated: “I had received reports that specific questions were being raised with regard to some of the laws that were being enacted in Zimbabwe. This included the manner in which the laws were being applied … By way of example, the common voters’ role read with the Citizenship Act, 1984, was interpreted as resulting in the disenfranchisement of voters.
“In the implementation of the Zimbabwe Public Order and Security Act there was a view that this Act limited the constitutional right to freedom of speech, association and assembly. Some of the complaints that reached me were that campaign meetings were being disrupted on the basis that they were prohibited by law,” Mbeki stated in his affidavit.
It was these reports, said Mbeki, that caused him to dispatch Khampepe and Moseneke to Zimbabwe.
Raulinga, however, considered the state’s tactics as an attempt to “throw a spanner in the works”.
“My understanding [of the Constitutional Court order] is that I get the report, I read the report and then we proceed,” Raulinga told the court.
The newspaper maintains that the report is of “great public interest” for several reasons. These include that it “may provide important information” about the contention by international observers that “the 2002 Zimbabwean presidential election was ‘stolen’”.
Mired in controversy
The matter is set to continue on Friday, June 15.
The M&G also contends that the report was “central” to the “legitimacy of the continuation in presidential office” of Robert Mugabe.
The newspaper further argues that the last presidential election in Zimbabwe in 2008 “was equally mired in controversy … when the incumbent [Mugabe] refused to vacate office leading to a power-sharing arrangement … Whether the incumbent president continues to hold office by virtue of illegalities and irregularities stretching back at least to 2002 is clearly a matter of public interest”.
In its heads of argument, the M&G also stated it was important to know whether the two South African judges had agreed to serve as “diplomatic envoys” for the executive, as the presidency has claimed.
The paper contended that this was “disingenuous” and even if it was established, “such deployment of sitting judges would be unlawful”, thus strengthening its case.