M&G in court for report on Zim elections with counsel criticising the Presidency for submitting “anorexic affidavits”

May 26, 2010

“The pure and simple truth is rarely pure and never simple”. Coined by Oscar Wilde these words promptly comes to mind on following the arguments before Acting Judge Stanley Sapire at the North Gauteng High Court in Pretoria. Judgement was reserved on 25 May following the presentations by Adv Marumo Moerane for the Presidency and Adv Jeremy Gauntlett acting on behalf of the Mail and Guardian. A court bid to obtain a report by Deputy Chief Justice Moseneke and Judge Kampempe detailing the legal and constitutional challenges in the run-up to the 2002 disputed elections in Zimbabwe played out before the acting judge on Monday and Tuesday this week. From a Business Day report “Mbeki ignored judges on Zim’s 2002 poll”, it appears a 2004 court attempt by Tvangirai’s MDC to get the report from the Presidency was abandoned out of respect for the South African government to keep certain matters private. This week however, events unfolded in a rather different way.

In response to the submission on behalf of the Presidency that it was justified in terms of PAIA to withold a report if it was compiled for the purpose of formulating policy, Gauntlett argued that for the refusal to be so justified, the formulation of the policy had to be the purpose from the outset and the fact that Mbeki subsequently relied on the report to formulate policy was not sufficient justification. Assertions that the report was not subject to PAIA as it constituted communication between heads of government since the two judges wer acting as “something of the nature of envoys” was rebutted by the allegation that there was no corroboration in evidence by the judges, the former President or anyone in Harare that their communication was confidential. The acting Judge now has the task of deciding whether the evidence before him is sufficient to justify the limitation of the right to access public information. Access of which the M&G demonstrated was in the public interest mainly due to the fact that despite the widespread view that the elections were anything but fair, South Africa was one of the few countries who declared it regarded the elections as free and fair.

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