Pretoria - Acting Judge Stanley Sapire reserved judgment in the North Gauteng High Court on Tuesday in the Mail & Guardian's application for access to a report by two judges about the fairness of the 2002 presidential election in Zimbabwe.

He said he hoped to give judgment in the application as soon as possible.

The Mail & Guardian launched an attempt to obtain the "historical" report on the basis that it was of enormous public interest, amid widespread allegations of vote-rigging, intimidation, violence and fraud by President Robert Mugabe's government.

It was also particularly important as South Africa was one of the only countries to declare the election legitimate, free and fair, the newspaper contended.

The presidency opposed the application, submitting that Judges Sisi Khampepe and Dikgang Moseneke were special envoys of former president Thabo Mbeki in confidential consultations with the Zimbabwean government.

The government contended that giving the press access to the report would lead to the deterioration of relations between South Africa and Zimbabwe and would be detrimental to peace in Zimbabwe.

Counsel for the presidency Marumo Moerane SC, said the report contained confidential information still in use by the government as the basis for policy decisions on Zimbabwe.

The report was a record of Cabinet to which the Promotion of Access to Information Act did not apply, he submitted.

However, Sapire asked whether the decision to deny access to the report was discretionary.

He also questioned whether the decision should be justifiable and reasonable in view of the State's obligation to protect the public's right to information.

Accessing report

Sapire said "most thinking people in South Africa" were entitled to know why its government was acting in a certain way.

"That's the basis for democracy. There must be a good reason for denying access to information. The applicant is but one of potentially thousands of people who want to know what the two judges told the former president," he said.

Moerane said that the refusal of the request complied with existing legislation, which prevented even the court from accessing the report.

Asked if the report was not "historical", as conditions in Zimbabwe had "changed completely" since 2002, Moerane said that from the point of view of the South African government, Zimbabwe was a "work in progress".

The report continued to inform government policies on Zimbabwe.

Sapire also asked why Mbeki had not involved the foreign affairs department if he wanted to have confidential conversations with the Zimbabwean government.

Moerane replied: "(Mbeki) obviously had confidence in the skill of the two judges who had to investigate legal issues".

Counsel for the Mail & Guardian Jeremy Gauntlett said that there was no evidence whatsoever that the report was a Cabinet document or that the two judges had agreed to embark on a secret mission for the purpose of determining executive policy.

"Why is there not an affidavit on behalf of Cabinet to say it's their document? There is a lack of corroboration by the judges, the former president or anyone in Harare that their communication was confidential," he argued.

By SAPA