Zuma loses bid against newspaper

2010-12-14 09:33

President Jacob Zuma has been ordered by the Supreme Court of Appeal (SCA) to hand over to the Mail & Guardian newspaper a confidential report about the fairness of Zimbabwe’s 2002 presidential election, compiled by two senior South African judges.

Judge Robert Nugent, on behalf of a full bench of appeal judges, dismissed arguments put forward by Zuma and the government with costs this morning, ruling he was not convinced there was anything “confidential” in the report that justified it being kept under wraps.

The report, compiled by Constitutional Court judges Dikgang Moseneke and Sisi Khampepe on behalf of former president Thabo Mbeki, can now be given to the M&G.

“In my view no evidential basis has been established by the appellants [Zuma and the government] 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 … but that has not been established by acceptable evidence,” said Judge Nugent.

“What the affidavits [by Zuma] perhaps establish by inference is 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.

“Nugent was scathing about the reasons put forward by counsel for Zuma and the government why the report should be kept secret, and compared them to arguments advanced by the apartheid regime to keep information under wraps.

“The feature of this case that strikes me most forcefully is the gulf between the observations that I referred to earlier in this judgment and the affidavits that have been filed by the appellants [Zuma and the government] in purported justification of secrecy.

“At another time courts were regularly confronted with laws that precluded them from going behind conclusions and opinions formed by public officials.

 “For example, at one time the Minister of Justice was entitled to prohibit a person from being in a specified area ‘whenever the Minister is satisfied’ that the person was promoting feelings of hostility between different sections of the inhabitants of the country.

“The affidavits filed by Zuma and other officials in the presidency” are reminiscent of affidavits that were customarily filed in cases of that kind.

In the main they assert conclusions that have been reached by the deponents, with no evidential basis to support them, in the apparent expectation that their conclusions put an end to the matter.

That is not how things work under the [Promotion of Access to Information] Act”.

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