The court battle between the South African government and the Mail & Guardian newspaper over the disclosure of a report on Zimbabwe’s hotly disputed 2002 elections continued in the North Gauteng High Court yesterday with the newspaper saying the government had no legal grounds to refuse to make the report public.
The government has fought against making the report available since the Mail & Guardian first sought access to it in 2008 in the North Gauteng High Court, the Supreme Court of Appeal and the Constitutional Court.
The report, on “legal and constitutional issues” in the run-up to an election widely believed to have been stolen by President Robert Mugabe, was commissioned by former president Thabo Mbeki and written by Deputy Chief Justice Dikgang Moseneke and Constitutional Court Justice Sisi Khampepe.
Now the case is back in the High Court after the Constitutional Court ordered that this was the kind of case where the High Court judge should have taken a “judicial peek” — to look at the report without disclosing its content — to see whether the government’s grounds for refusing had any validity. Judge Joseph Raulinga has had his judicial peek at the 22-page report, but gave no clues in court yesterday as to what the report contained.
Counsel for the Mail & Guardian, Frank Snyckers SC, spent the morning arguing that the government’s “belated attempt” to introduce new evidence — affidavits by Mbeki and President Jacob Zuma — should be refused.
Until recently, there were no affidavits before the court by Mbeki or either of two judges.
Snyckers said the new affidavits were not the “ex parte representations” envisaged by the Promotion of Access to Information Act that can be made when a judge takes a judicial peek, because they did not address the content of the report at all.
The case continues today.