PRETORIA — Pretoria High Court Judge Takalani Raulinga on Thursday granted President Jacob Zuma leave to appeal an earlier order he made that the government furnish the Mail&Guardian (M&G) with a report on the 2002 Zimbabwe national elections.
Raulinga ordered that the appeal be heard by the Supreme Court of Appeal, rather than by a full bench of the High Court.
The State had argued for the latter, after noting the “vicious circle” the matter had travelled since it began four years ago, when the M&G made its initial Promotion of Access to Information Act application to access the report compiled by justices Sisi Khampepe and Dikgang Moseneke.
The matter has travelled from the High Court to the Constitutional Court (Concourt) and then back again, after the Concourt ruled that the High Court might have a “judicial peek” at the report before making a ruling.
In his latest ruling, Raulinga held that since the superior courts had not seen the report, “it was therefore critical that leave to appeal be granted so that another court may have sight of the report”.
He reiterated findings in his previous judgment that stated that “the report potentially discloses evidence of a substantial contravention of, or failure to comply with, the law and therefore the public interest supersedes the harm that may occur should the report be released”.
The M&G reported earlier this year that Zanu PF insiders were concerned that the release of the report would open a rift in the party because it could show that senior party officials close to President Robert Mugabe had harboured reservations about the handling of the elections.
The report was submitted to then President Thabo Mbeki and apparently formed part of the basis on which South Africa deemed the Zimbabwean elections to have been free and fair.
The report could shed light on whether Zanu PF officials sanctioned political violence during the elections and if party leaders had been involved in the decision-making.
The M&G’s lawyer, Dario Milo, said the application for leave to appeal should have been refused as “the state has no reasonable prospects of success”.
He said it seemed likely that the matter would eventually end up in the Concourt again, “by which time it will have been through five courts”.