JOHANNESBURG - The release of a report by two of South Africa’s top judges on the fairness of the 2002 presidential election in Zimbabwe would be “detrimental to peace in Zimbabwe”, the High Court in Pretoria was told yesterday.

Advocate Marumo Moerane SC argued that the court should dismiss an application by the Mail & Guardian newspaper for access to a report compiled by Judges Dikgang Moseneke and Sisi Khampepe.

The newspaper argued that government had no legal basis to refuse to release the report, which was of immense public importance, particularly as South Africa was one of the only countries to declare that election legitimate, free and fair.

Moerane argued that the two judges were sent to Zimbabwe as “special envoys” of former President Thabo Mbeki and had received all the information from the Zimbabwean government in confidence.

The disclosure of such information could impair SA’s ability to play a facilitating role in assisting Zimbabweans to resolve their political differences. He submitted that the government still relied on the report to shape policy on developments in Zimbabwe.

Because the President headed Cabinet and the report was in his possession, the information was therefore “a record of the Cabinet” to which the provisions of the Promotion of Access to Information Act were not applicable, he argued.

But counsel for the newspaper, Jeremy Gauntlett SC, described argument that the two judges were special envoys on a diplomatic mission as “nonsense on stilts”, “ludicrous” and an opportunistic attempt to stretch the facts.

He said it was unthinkable the two judges and the then Chief Justice Arthur Chaskalson would have lent themselves to such an arrangement a month after the Constitutional Court ruled that judges could not act as government functionaries.

Gauntlett argued the judges were clearly sent to Zimbabwe on a fact-finding mission and not to help formulate policy. There was also no indication Cabinet had ever considered their report. “Possession and control by the President is not synonymous with possession and control by the Cabinet,” he said.

He said the government should be interested in ensuring the SA public were apprised of all facts relating to allegations of vote-rigging, intimidation, violence and fraud by the Zimbabwe government, rather than suppressing them “on spurious technical grounds”.

The application continues.

By Staff reporter and agencies