Zimbabweans queue to vote in the 2002 election.
North Gauteng High Court judge Joseph Raulinga on Friday reserved judgment on whether he would allow the Mail & Guardian‘s lawyers to view the judicial report on Zimbabwe in order to prepare written representations which are to be submitted to the court by July 16.
The newspaper had, three-and-a-half years ago, applied through the Promotion of Access to Information Act (Paia) to gain access to a report compiled by South African justices Sisi Khampepe and Dikgang Moseneke on the legal and constitutional context of the 2002 presidential elections in Zimbabwe.
Government has refused to hand over the report claiming that it includes confidential information between governments and was commissioned for the purpose of policy formulation.
Raulinga, following a “judicial peek” at the report on Thursday, as per a Constitutional Court order in November last year, ruled that the both parties need to make ex parte representations (separate, written submissions) by July 16.
The matter is set down to be heard on August 16. The M&G‘s counsel, Frank Snyckers SC, had however argued that the newspaper’s case would be at a disadvantage if its legal representatives were unable to view the report and use it to inform its submissions.
Snyckers said the newspaper’s constitutional right to a fair trial would be violated as both the judge and the state’s legal counsel had viewed the report.
Friday’s arguments were the latest in the newspaper’s battle to access the report which had started at the high court in Pretoria where it had won its first case.
Government had then been ordered to make the report available to the newspaper in its entirety. The order was later upheld by the Supreme Court of Appeal. The Constitutional Court had, 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 in November last year.
The newspaper maintains that the report is of “great public interest” for several reasons. These include that it “may provide important information” around the contention by international observers that “the 2002 Zimbabwean presidential election [that it] was ‘stolen'”.
The M&G also contended that it was “central” to the “legitimacy of the continuation in presidential office” of Robert Mugabe. The newspaper further argued that the last presidential elections 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 SA 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 this was established, “such deployment of sitting judges would be unlawful”, thus strengthening its case.
Former president Thabo Mbeki had noted in an affidavit filed with the court on Wednesday, that a “central challenge” at the time of the elections in Zimbabwe “related to the perceived conflict between the provisions of the Constitution and certain laws”.
In Mbeki’s affidavit, he 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,” continued Mbeki in his affidavit.
It was these reports, stated Mbeki, that caused him to dispatch Khampepe and Moseneke to Zimbabwe.