In June, the North Gauteng High Court ordered the Presidency to give the report to the Mail & Guardian within seven days. The newspaper had sought a copy in terms of the Promotion of Access to Information Act.
However, President Jacob Zuma took Judge Stanley Sapire’s order on appeal to the Supreme Court of Appeal.
The report, written by Deputy Chief Justice Dikgang Moseneke and Constitutional Court Justice Sisi Khampepe — then a high court judge — for former president Thabo Mbeki , dealt with "legal and constitutional challenges" in the run-up to the disputed election.
Mail & Guardian editor Nic Dawes suspected the report cast doubt on the conclusion that the 2002 election in Zimbabwe was free and fair. "But we don’t know," Mr Dawes said.
The newspaper contended the report was of enormous public interest, especially given the widespread view that the elections were marred by vote-rigging, intimidation, violence and fraud by Zimbabwean President Robert Mugabe’s government.
In heads of argument for the appeal, counsel for the president, Marumo Moerane SC , said Judge Sapire had "misinterpreted or simply ignored" the evidence of Frank Chikane , the former director-general in the Presidency.
Mr Chikane had said that the two justices were sent by Mr Mbeki as "envoys"; that the report was used to formulate policy, and was a Cabinet document. The Presidency was therefore entitled, under the Promotion of Access to Information Act, to refuse access to the report.
Instead, the judge had accepted the "speculative, inaccurate and hearsay" evidence of the newspaper, Mr Moerane said.
He said that, while the constitution was premised on the promotion of openness and transparency, inherent in its scheme were "limitations on the assertion of the rights" in the bill of rights. Judge Sapire had "essentially failed to take this into account".
But the newspaper’s counsel, Jeremy Gauntlett SC, rejected each of the president’s grounds for refusing access to the report, saying the "envoy" argument was "spurious, and a disingenuous attempt to contrive an exemption".
He said there was "not a single piece of documentary evidence" or any affidavits from Justices Moseneke and Khampepe to support the envoy argument or, indeed, any of the arguments made by the Presidency.