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M&G wins battle for Zimbabwe report

Pretoria – The North Gauteng High Court in Pretoria ordered the presidency on Thursday to hand over a report on the 2002 Zimbabwean elections to the Mail & Guardian newspaper. 

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The two judges were sent to Zimbabwe by former president Thabo Mbeki as observers during its 2002 elections.

Judge Joseph Raulinga gave the presidency 10 days to make a copy of the report available to the M&G. Although he did not disclose details of the report, Raulinga said it “potentially discloses evidence of a substantial contravention of, or failure to comply with the law”.

“I am of the view that the public interest supersedes the harm that may ensue should the report be released,” he said. Raulinga ordered that the report remain embargoed until any appeals process was finalised.

M&G’s legal battle to get the report, by judges Sisi Khampepe and Dikgang Moseneke, started over four years ago when it applied for access in terms of the Promotion of Access to Information Act. The two judges were sent to Zimbabwe by former president Thabo Mbeki as observers during its 2002 elections.

When the presidency refused to hand over the report, the M&G obtained court orders in the high court and the Supreme Court of Appeal, forcing the government to hand it over.

The presidency took the case to the Constitutional Court, which referred it back to the high court to determine the legality of the refusal.

The presidency maintained that the report could not be handed over because it contained confidential information supplied by another state and had been used by Mbeki in the formulation of executive policy.

The government sought to introduce new evidence in the application, in the form of affidavits by Mbeki and President Jacob Zuma. However, Raulinga ruled that it would seriously prejudice the administration of justice.

He said the affidavits were filed more than three years after the hearing of the first application and should have been filed during the appeal hearings in the Supreme Court of Appeal and the Constitutional Court.

Raulinga said the contents of the report did not support the contention that its disclosure would reveal information supplied in confidence by or on behalf of another state or international organisation.

There was also no indication that the report was prepared for the purpose of assisting former Mbeki to formulate executive policy in Zimbabwe.

“The report gives a balanced overview of the events prior to, during and shortly after the elections,” he said.

“In fact, the report criticises and gives credit to the parties concerned where it is necessary. It will, therefore, be disingenuous for any party to decry any lack of transparency.”

Basic principles

Raulinga said one of the basic values and principles governing public administration was transparency, and the disclosure of information was the rule, and exemption from disclosure the exception.

“It is common cause… that the report contains the findings of the two justices regarding the conduct of the Zimbabwean elections, such as whether the legal requirements for the elections were met,” he said.

“This can never reasonably be construed as information supplied in confidence by or on behalf of another state. In my view, most of the information is public knowledge. The report itself does not reveal that it was intended to be kept secret.”

He said information provided by individuals who happened to be members of the public service could not be seen as information supplied by or on behalf of another state.

“Moreover, the information was supplied also by persons who do not qualify as members of another state. Information was also supplied by independent lawyers.”

Raulinga said the report revealed that the judicial observer mission had to ensure credible or substantially free and fair elections and that the elections were conducted in compliance with the legislative framework.

“The report in my possession also deals with issues pertaining to human rights. The respondents have, therefore, failed to establish a proper basis for these grounds,” he said. – SAPA