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M&G’s battle for secret Zim report reaches ConCourt

M&G’s battle for secret Zim report reaches ConCourt

GLENDA DANIELS – May 17 2011 20:18

The Mail & Guardian’s efforts to gain access to a report on Zimbabwe’s 2002 
presidential election reached the Constitutional Court on Tuesday.

The report was commissioned in 2002 by then-president Thabo Mbeki, who 
requested that justices Dikgang Moseneke and Sisi Kampepe undertake a 
mission to Zimbabwe to investigate that country’s “constitutional and legal 
challenges” prior to the 2002 election.

Allegations of vote-rigging and reports of violence and intimidation marred 
the elections, which President Robert Mugabe won.

The Mail & Guardian has argued in both the high court (2008) and the Supreme 
Court of Appeal (December 2010) that widespread reports of electoral 
irregularities made the report commissioned by Mbeki of vital public 
interest, and that it should be released in terms of the Promotion of Access 
to Information Act (Paia).

The newspaper argues that, although several years had passed since the 
election, the report might provide information about whether the elections 
were free and fair, as South Africa at the time declared they were. This had 
a bearing on both the legitimacy of Mugabe’s presidency and the 2011 
Zimbabwe presidential elections.

Opposing the Mail & Guardian, the Presidency has argued that Moseneke and 
Khampepe had gone to Zimbabwe as diplomats and were received as such and 
that diplomacy allowed for information to be exchanged “in confidence”.

The Presidency is challenging in the Constitutional Court the appeal court’s 
December 2010 ruling that there was no factual evidence that the judges were 
acting as diplomats; a role not in keeping with the independence of the 
judiciary and the seperation of powers.

Arguments were heard from senior counsel Jeremy Gauntlet for the Mail & 
Guardian, and Marumo Moerane for the Presidency.

The judges who heard the matter included Chris Jafta, Edwin Cameron, Johann 
van der Westhuizen, Sandile Ncobo, Bess Nkabinde, Johan Froneman and Mogoeng 

Justices Kampepe and Moseneke, who compiled the Zimbabwe report for Mbeki, 
recused themselves.

The Presidency’s insistence that the report ought not to be released rests 
on several arguments.

The first is that it was a “Cabinet report”, and so not within the ambit of 
the Promotion of Access of Information Act.

Second, it argued that it should not be released in order to uphold the 
neutrality of the presidents of South Africa who have been engaged in 
mediating between the opposing parties in Zimbabwe’s turbulent political 
climate, and that the judges were the president’s “special envoys” in this 

Third, the Presidency maintained that the judges’ mission was a diplomatic 
mission and that information gleaned during such activities, and received in 
confidence, should therefore remain classified.

Fourth, it argued that the report was being used by the president in the 
formulation of executive policy.

In terms of Paia, it is up to the party declining to make requested 
information available to supply proof as to why a particular record should 
not be released.

For the Presidency, Moerane submitted that the “burden of proof had been 

Moerane argued that to disclose the report would be to reveal information 
that was supplied in confidence and that the purpose of the report was to 
assist in formulating policy.

The purpose of the visit was vigorously interrogated by the bench.

While it is common cause that the two judges who went to Zimbabwe were on a 
presidential mission, Chief Justice Ncobo noted: “What is at issue is 
whether that report was for the purposes of formulating policy.”

Moerane said the two judges who compiled the report were special envoys 
whose function was to inform then president Thabo Mbeki about constitutional 
and legal challenges in Zimbabwe. The presidency was therefore not obliged 
to release the report.

However, Gauntlett said: “They went as judges, they are judges. They could 
never stop for a moment to be judges.”

He argued that the judges could not have gone as “special envoys” on a 
diplomatic mission nor been the “embodiment of the president”, as this would 
have had serious implications for the separation of powers.

The bottom line, Gauntlett argued for the Mail & Guardian, was that the 
Presidency had put in the public domain no detailed evidence to prove that 
the report ought to remain confidential.

Judgment was reserved, as the bench adjourned to consider the arguments 
presented. — Additional reporting by Sapa


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