The South African Supreme Court of Appeal (SCA) on Tuesday dismissed an appeal by the South African Presidency against a court order giving the Mail&Guardian newspaper access to a report by two South African judges on the 2002 Zimbabwean presidential election.
The appeal was dismissed with costs. The High Court in Pretoria had already ordered the report to be given to the newspaper, but the Presidency contested the decision at the SCA.
The newspaper requested the report, commissioned by former South African President Thabo Mbeki, in terms of the Promotion of Access to Information Act.
Mbeki sent two South African judges to Zimbabwe to obtain information on constitutional and legal problems at the time of Zimbabwe’s 2002 elections.
Mbeki’s office and the Zimbabwean government facilitated the mission.
It was submitted that Mbeki received a report and that he considered it to be one that he would, as head of state and head of the national executive, utilise at his discretion.
Appeal Judge Robert Nugent said there was no evidential basis established by the Presidency for refusing access to the report.
“It might be that the report contains information that was received in confidence, and it might be that it was obtained or prepared for a purpose contemplated by Section 44, but that has not been established by acceptable evidence.”
Section 44 of the Act allows access to a record to be refused if it contains information related to formulating policy or taking a decision in the exercise of power, or performance of a duty, imposed by law.
The SCA judgment found the affidavits on which the Presidency based its case “establish(ed) by inference” that the judges were commissioned to report on constitutional and legal issues pertaining to the election.
“By itself that does not bring the report within the terms of the sections that were relied upon.”
The unanimous judgment by a panel of five judges held there was no need to change the High Court’s findings on the matter.
Zimbabwe held presidential elections in March 2002 in which President Robert Mugabe beat archrival MDC leader Morgan Tsvangirai and three other presidential aspirants Wilson Kumbula of Zanu Ndonga, Shakespeare Maya of the National Alliance for Good Governance and Paul Siwela, an independent candidate.
Tsvangirai contested the result saying the elections were not free and fair and were marred by violence. Other organisations, including the Commonwealth, Norwegian observers and Western governments condemned the conduct of the elections.
President Mugabe reportedly garnered 1,6 million votes (56,2%) against Tsvangirai’s 1,2 million (42%).