In accordance with a Constitutional Court ruling in November last year, North Gauteng High Court judge Joseph Raulinga exercised his right to a “judicial peek” at a government report compiled by two South African judges on the sociopolitical and legal circumstances around the 2002 national elections in Zimbabwe on Thursday morning.
This, despite attempts by the government to have arguments over a last-minute affidavit by former president Thabo Mbeki – who had commissioned Constitutional Court judges Sisi Khampepe and Dikgang to compile the report – be heard first.
The Mail & Guardian had, three 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“.
It is understood that the report would point to the political, social and legal context within which the 2002 Zimbabwe elections took place.
In Mbeki’s affidavit, he said: “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,” continued Mbeki in his affidavit.
It was there reports, stated Mbeki, that caused him to dispatch Khampepe and Moseneke to Zimbabwe.
Advocate Marumo Moerane had argued for the government that Raulinga should first consider argument around Mbeki’s affidavit, which states that he considered the two judges to be “presidential envoys” and thus “of necessity confidential in nature”.
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.
At lunchtime on Thursday, Raulinga had adjourned court and was reading the report. The matter is expected to proceed on Thursday after the judge’s “peek”.
The case was expected to resume at 2pm.