President of South Africa ordered to disclose judges report

24/09/14

South Africa's Supreme Court of Appeal has ordered President Zuma to disclose a report by two of the country's most senior judges on the rigging of a presidential election in Zimbabwe.

Justices Khampepe and Moseneke (now the Deputy Chief Justice) had been requested by former President Mbeki, with the consent of then-Chief Justice Chaskalson, to travel to Zimbabwe prior to the election called by President Mugabe in 2002. Against a background of stringent international criticism by Amnesty International, the EU and the UK and US Governments of the abrogation of the rule of law in Zimbabwe,  the judges were asked to investigate the manner in which the election was being conducted, and to report on its compliance with the constitutional and electoral law of Zimbabwe.

President Mbeki refused to release the judges' report after it was handed to him. South Africa's Presidency thereafter for over six years resisted an application by The Mail & Guardian for the release of the report, under the Promotion of Access to Information Act (PAIA).

The newspaper won an earlier High Court order for disclosure, upheld by the Supreme Court of Appeal. But the President appealed to the Constitutional Court, which (by a majority of one) set aside the disclosure order, directing that the High Court in Pretoria first invoke a controversial power under PAIA itself to read the report without disclosing it to the claimants.

The High Court did so, upholding again the newspaper's right to disclosure. Against this President Zuma appealed.

A unanimous Supreme Court of Appeal described the conduct of the litigation by the President's Office as "border[ing] on the cynical". It held that the President has "attempted to use the referral back to the High Court for a purpose which was the exact opposite the Constitutional Court had intended". It said this was "an abuse of process which cannot be tolerated". The court said that a reading of the report now vindicated the rejection by the minority in the Constitutional Court (led by Cameron J) of the President's stance.

In dismissing the President's appeal, the Supreme Court of Appeal granted The Mail & Guardian a costs order, which exceptionally included the costs of three counsel.

The case had proceeded through five courts and been heard by 21 judges over three years.

The judgment is here.