PRETORIA — The Mail & Guardian (M&G)’s four-year battle to gain access to a report on the legal and constitutional situation in Zimbabwe prior to the 2002 election was put on hold again in the North Gauteng High Court in Pretoria on Tuesday after Judge Joseph Raulinga asked both the lawyers for the State and the M&G to supplement their submissions with additional arguments.
Raulinga said this was a very important matter and that he wanted to “get more flesh” on their respective arguments’ bones before making any conclusions. The parties were given 15 days in which to file the submissions, and judgment was reserved.
The matter has been through the High Court, Supreme Court of Appeal and the Constitutional Court over the past four years.
The Constitutional Court found that the courts had been “hamstrung” by the fact that they did not have access to the report itself and referred the matter back to the High Court so it could have a confidential “judicial peek” at the report in order to better assess arguments around it.
After Raulinga read the report, the State was given the opportunity to make ex-parte representations, submissions made to the judge without the M&G’s lawyers’ presence, to further their arguments for why the report should not be disclosed.
But its submissions consisted largely of two affidavits, from former president Thabo Mbeki and President Jacob Zuma, concerning the purpose of commissioning the report, the way it has been used, and general comments on why it should not be disclosed.
On Tuesday, Advocate Frank Snyckers, counsel for the M&G, argued that the affidavits the State had submitted did not cure the deficiencies in the State’s case that the Constitutional Court had found.
Snyckers said the evidence put up by the State was insufficient, and that the function of referring the matter back to the High Court “was not to supplement the State’s case, but simply to look at the (report itself) and see whether (it) helps”.
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But Advocate Marumo Moerane, acting for the State, said the affidavits were material evidence that the court should take into account when deciding the issue.
The purpose of the affidavits was “to place the report in its proper political context, to assist (Judge Raulinga) in exercising his duty responsibly”, he said. Raulinga asked both parties to clarify their arguments on whether the affidavits should be admitted as evidence.
Raulinga also asked for more detail on the parties’ interpretation of section 46 of the Promotion of Access to Information Act under which the M&G applied for access to the report.
This section of the Act deals with the circumstances under which there should be a mandatory disclosure of information in the public interest.
Moerane argued that none of these reasons applied in this case.
He said there was no evidence that the public interest outweighed the harm that might result to South Africa’s diplomatic relations and its relationship with Zimbabwe if the report was disclosed and that disclosing the report would not reveal evidence of a substantial contravention or failure to apply the law or that it would show serious environmental or public risk. — M&G
