Since the court battle began almost four years ago
Judge Joseph Raulinga told lawyers for the state and the <em>M&G</em> this week that he needed further information on the substance of their arguments. "You've left me … standing between a rock and a hard place," Raulinga said as he adjourned proceedings in the North Gauteng High Court in Pretoria on Tuesday.
Raulinga gave the parties 15 court days to file supplement submissions. He asked the lawyers to focus on whether the affidavits from former president Thabo Mbeki and President Jacob Zuma, which the state submitted after Raulinga had taken his confidential "judicial peek" at the report to better assess the arguments around it, should be accepted as evidence.
Since the court battle began almost four years ago, the state has declined to make any reference to the contents of the report. The affidavits, filed after Raulinga had taken his peek, also failed to do so and lawyers for the <em>M&G</em> have objected to their admission, saying this was a belated attempt to cure evidentiary flaws.
Raulinga also asked for further submissions on whether the public interest outweighed the possible harm that might come from releasing the report. The state has argued that the information in the report was given in confidence by Zimbabwean officials and releasing it would have a negative effect on diplomatic relations.
<strong>Informing policy</strong>
The question whether Justices Sisi Khampepe and Dikgang Moseneke, who drew up the report, were told in advance that it would be used for the purpose of informing policy was vigorously debated.
The Promotion of Access to Information Act allows the state to refuse a request for access to a document if it was "obtained or prepared … for the purpose of assisting to formulate a policy".
Frank Snyckers, counsel for the <em>M&G</em>, argued there was no evidence that the terms of reference under which Khampepe and Moseneke had been deployed had stated that this was their purpose. If this was the case, he said, it would blur the lines separating the judicial and executive arms of government and undermine the Constitutional doctrine of the separation of powers.
State advocate Marumo Moerane maintained that the purpose of the report was, from the outset, to assist the formulation of policy.
Constitutional law expert Pierre de Vos said Raulinga's request implied that the state had not done enough for him to rule in its favour. "Just taking a judicial peek in itself is not enough. You have to make an argument about why what's in the document outweighs the public interest."