The Mail & Guardian‘s three-year battle to gain access to a report by two senior judges on Zimbabwe’s 2002 presidential election finally reached the Constitutional Court this week.

The report was commissioned by former president Thabo Mbeki, who sent judges Dikgang Moseneke and Sisi Khampepe to Zimbabwe to investigate “constitutional and legal challenges” in the build-up to that country’s disputed and highly controversial 2002 poll (See accompanying story below).

The M&G requested a copy of the report under the Promotion of Access to Information Act in 2008, but was turned down by the presidency.

The newspaper then won a high court victory, subsequently confirmed by the Supreme Court of Appeal, ordering President Jacob Zuma to disclose the report.The Constitutional Court hearing on Tuesday represented Zuma’s final appeal against this order. Judgment was reserved.

Questioning by a panel of nine judges (Deputy Judge President Dikgang Moseneke and Judge Sisi Khampepe recused themselves as they were the authors of the report) threw up the question: Did their two colleagues travel to Zimbabwe as “special envoys” on a diplomatic mission, as “the embodiment of the president”, as claimed by the presidency?

Marumo Moerane, senior counsel for the presidency, told the court that all the democratic presidents of South Africa had mediated in Zimbabwe’s turbulent political climate, lending sensitivity to the judges’ report.

The presidency has maintained that the judges’ assessment was a “Cabinet report”, which was exempt from disclosure under the Act. The M&G disputes this because, among other reasons, the president is far more than the head of Cabinet.

The paper also argues that the judges’ role cannot be regarded as that of special envoys on a diplomatic mission, which would also make their report exempt from disclosure under the Act, because such a mission would conflate the functions of the executive and the judiciary.

Jeremy Gauntlett, senior counsel for the M&G, said the case raised “the worrying issue of the separation of powers”.

Pretending they were presidential envoys, he said, was a case of trying to “squeeze into a tiny Cinderella’s slipper to make them envoys”, when, in reality, “they are judges”.

“Pariah regimes”

In an affidavit before the court, M&G editor Nic Dawes said: “What is concerning is that the presidency prioritises its relations with the Mugabe regime over its clear constitutional and statutory obligations [to disclose]. It is this attitude which would fracture international relations, not the disclosure of ‘innocuous’ (the president assures this court) discussions.

“Should the international community come to view the presidency’s loyalties as lying not with the rule of law but with pariah regimes, the world’s confidence in South Africa’s democratic commitment would be destroyed.”

The sequence of events in the case, highlighting government’s determination not to disclose the contents of the judges’ report, is as follows: