President Jacob Zuma’s office appealed against the June 2010 judgement in the North Gauteng High Court which ordered the government to release the report to the M&G.
In what was widely hailed as a victory in the struggle for state transparency in South Africa, Acting Judge S Sapire then ordered the government to hand over the report within 10 days. As the deadline was due to expire, the Presidency announced that it would seek leave to appeal.
The 2002 report was compiled by judges Dikgang Moseneke and Sisi Khampepe, acting as special envoys to Zimbabwe for then-president Thabo Mbeki.
The M&G contends that the report is of public interest, given the widespread view that the 2002 Zimbabwe election, culminating in a victory for President Robert Mugabe, was marred by vote-rigging, intimidation, violence and fraud.
Despite the reserved judgement, M&G editor, Nic Dawes, was confident of the strength of the newspaper’s case.
"The Judges of the SCA gave the counsel for president Zuma a very difficult time" said Dawes after the case. "They had numerous questions about his argument that the judges’ report ought to remain confidential because it contains secret diplomatic information that would jeopardise relations between the two countries if it were revealed.
"While I obviously can’t prejudge the way that they are thinking, we were very pleased by the way things went."
When the Presidency rebuffed the M&G’s initial attempts to gain access to the report, the newspaper lodged an application under the Promotion of Access to Information Act.
Dawes maintained that the case helped to vindicate important freedom of information principles. "Crucially, that if a state agent wants to refuse access to information they have to give very clear and good reasons for doing so, and those reasons have to be adequately in keeping with the Promotion of Access to Information Act. In our view in this case we haven’t been given those reasons."
Access to the report was also critical as it speaks to the separation of powers between the judiciary and executive, Dawes said.
"If these judges went there to conduct an independent enquiry into those constitutional and legal questions than clearly that ought to be public information," said Dawes. "If they went there as representatives of [then] President Mbeki that would raise very serious questions of the separation of powers."
Mbeki at the time sent the two South African judges to the neighbouring state to obtain information on the constitutional and legal problems emerging in Zimbabwe at the time of the 2002 elections.
Mbeki’s office and the Zimbabwean government facilitated the mission.
The state’s argument
The presidency argued that the report was Mbeki’s, as head of state and head of the national executive, to utilise at his discretion.
One of the purposes which the then president intended to put the report to was that of formulating policy and taking decisions pertaining to the situation in Zimbabwe.
The President’s office’s papers said that the mission of the justices was undertaken within the context of advancing continental, regional and interstate relations.
It was submitted that the mechanism of dispatching envoys to assist with the gathering of necessary information to "infuse into the strategies" to be adopted in promoting dialogue in Zimbabwe, forms part of the conduct of foreign relations.
It was also argued that this made the matter "the type of exceptional case", where the court should exercise judicial restraint in refraining from intruding into the domain of the government.
It was submitted that the observations of the two judges were to be communicated directly and exclusively to the President and that their mission should be distinguished from other missions such as the 50-person election observer mission that was also sent.
The M&G argued that although some years have passed since the judges’ report was compiled and submitted, it remained a matter of great public interest and importance for several reasons.
It was submitted that the report may provide important information relevant to the question whether the 2002 Zimbabwean Presidential elections "was stolen".
Whether or not that was so, was a matter of importance to an accurate contemporary historical record of the region.
It was also submitted that it was central to the legitimacy of the continuation in the presidential office in Zimbabwe of the present incumbent, Robert Mugabe.
In papers, the newspaper argued that with new elections coming up in Zimbabwe it was important to see whether Mugabe continues to hold office by virtue of alleged illegalities and irregularities stretching back to at least 2002. — Sapa and the M&G