JOHANNESBURG – North Gauteng High Court judge Joseph Raulinga said he was “left standing between a rock and a hard place” in having to decide whether a South African observer report about Zimbabwe’s hotly contested 2002 elections should be released to the public.
The government has since 2008 been fighting the Mail & Guardian’s attempts to access the report, which detailed “legal and constitutional issues” in the run-up to the disputed election.
The report was written by Deputy Chief Justice Dikgang Moseneke and Constitutional Court Justice Sisi Khampepe after being sent to Zimbabwe by former president Thabo Mbeki.
After two days of arguments, Judge Raulinga reserved judgment and gave both sides the opportunity to file further legal arguments. He suggested he would like to be addressed on whether the public interest outweighed the possible harm that would follow if the report were to be released.
The Promotion of Access to Information Act says that information sought must be provided if it will reveal a substantial contravention of the law, and if “the public interest in the disclosure … clearly outweighs the harm contemplated in the provision in question”.
Counsel for the state, Marumo Moerane SC, quoted extensively from President Jacob Zuma’s affidavit, which said releasing the report now would have a negative effect on SA’s continuing mediation attempts in Zimbabwe.
Given Zuma’s assertion, it could not be said the public interest in the release of the report “clearly” outweighed possible harm that would follow were the report to be released. “The report must be seen in its proper political context,” Moerane said.
But counsel for the Mail & Guardian, Frank Snyckers SC, said vague and speculative assertions by politicians that the “world would come to an end” if the report were released were not good enough. “Do not let politicians just say the world will come to an end. They must show you how the world will come to an end”.
Instead, government “specifically declined” to do so, he said. Businesslive.co.za