M&G wins battle for Zimbabwe report

2013-02-14 21:43

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.

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.

  • Rustic - 2013-02-14 21:55

    You are dreaming - The ANC will simply not release it.

      charlesbronson.bronson - 2013-02-14 22:26

      The ANC are supporting a dictator because they are becoming not the same as apartheid, but now have the same signs as Hitler. ZUMA is a lying corrupted thief and useless leader. Why will he listen to the courts if he is raping justice!!

      DerekMain - 2013-02-15 08:47

      @Rustic - yes, unfortunately you are correct. When any judgement goes against cANCer and they are ordered by the court to do something, they simply ignore the ruling. Phantsi cANCer, phantsi!!!

      Nkululeko Lecko Dube - 2014-11-15 23:41

      The current ANC administration tried to mediate in Zim. The problem was Mbeki, he was too deep in defending Mugabe. But Mugabe naturally is a very difficult person to deal with. Even his own party "Vice President" and country's deputy is failing to understand him. Over 4 million Zimbabweans are not enjoying their "redistributed" land and would rather stay in Diepsloot and Honeydew mkukhus than on a farm in Zim. Mugabe has turned our country into a desolate place of hunger and famine. A country that cannot farm or manufacture anything. A country that doesn't accept divergent views. A country that has no currency. A country that discourages entrepreneurship through a combination of high taxes, poor infrastructure, poor service delivery, unfree elections and a bad economic environment. We are lucky South Africa has given us sanctuary....... sometimes I ask myself where would we be if South Africans had closed their borders! In short what this report says is what us Zimbabweans have always known!

  • Peter Zylstra - 2013-02-15 07:04

    The dysfunctional presidency will again refuse to hand over the documents.....after all they think they are above the law!

  • Truth.speak - 2013-02-15 07:09

    Thank goodness for the sanity of our courts, as usual gov has something to hide - in this case human rights abuses by its pal Bob Mugabe

  • musamoyo2004 - 2013-02-15 07:12

    Zimbabwe is S.A neighbour, like it or nt n S.A will do anything to support Zim n Comrade Mugabe,what most of u fellaz dnt get is these Comrades r coming from far as a team fighting against white domination. It will be dumb for one party to betray another coz we in 2013. Its called team work.

      DerekMain - 2013-02-15 08:50

      Both presidents are criminals who should be jailed. As thick as thieves. Phantsi cANCer, phantsi!!!

      frank.coetzee - 2013-02-15 13:01

      Wow you are clever. Your reasoning is that 10 or 100 or 1000 "comrades" can stand together and stolen money so that there is nothing left for YOU and millions other poor and hungry people? I am amazed that you are willing to be a starving, struggling and poor human being in order to fill your leaders pockets.

  • sisie.indola - 2013-02-15 07:40

    10 days - gee oops the report fell into the shredder, just like the "spy tapes" were erased.

  • piet64 - 2013-02-15 10:00

    I smell a rat. How do we know the original, uncensored report will be the one released? Moseneke has always been a staunch PAC supporter(and thus shares Mugabe's black supremacist views)so is unlikely to point out that his report had been tampered with or even replaced by the ANCs internal strategists

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