The Business Day 

THE Presidency, in its appeal against the Supreme Court of Appeal judgment which ordered it to hand over a report on the 2002 Zimbabwe election to the Mail & Guardian newspaper, argues that sufficient evidence was placed before the courts in justifying the refusal of access to the report. 

The case raises issues concerning the power of the president to appoint judges as special envoys, his ability to seek information on a confidential basis and the use of that data in promoting domestic and southern African regional policy objectives. 

The report in dispute, which was commissioned by former president Thabo Mbeki , was prepared by Deputy Chief Justice Dikgang Moseneke and Constitutional Court Judge Sisi Khampepe in 2002 before the Zimbabwe election. When the newspaper was refused access to the report, it lodged an application in the North Gauteng High Court for access to the report. In June, the high court ordered the Presidency to give the report to the newspaper, and in December, the Presidency failed in its appeal to the Supreme Court of Appeal.  

In its written submissions to the Constitutional Court last week, the Presidency said the Supreme Court of Appeal had rejected the evidence tendered on the appointment of the justices and the evidence obtained and furnished to the court regarding the justices’ interactions and the purpose of their mission. 

"We submit that the justices were not acting in their personal or judicial capacities or as members of the South African Observer Mission," the Presidency’s advocates Marumo Moerane SC and Leah Gcabashe said. 

They said support for this view was found in the Constitutional Court judgment of the South African Association of Personal Injury Lawyers vs Heath, where the court declined to "lay down rigid tests for determining whether or not the performance of a particular function by a judge is or is not compatible with the judicial office". 

They said there was no explicit or implicit prohibition on appointing members of other branches of government as special envoys. "A definitive ruling from this court on the matter would, however, be of great assistance in guiding the president on the future appointment of special envoys." 

Mr Moerane and Ms Gcabashe said the appointment of the two justices as special envoys was not incompatible with the judicial office that they held. 

"Their qualities are that they are independent, able to weigh up information and form an opinion based on the evidence presented, and give a decision based on the consideration of relevant evidence. The functions they discharged as special envoys did not conflict with the central mission of the judiciary. It was a temporary assignment that did not require the justices to be partisan." 

The Constitutional Court will hear the case in May.  

mabuzae@bdfm.co.za

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