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The Constitutional Court has sent a Mail&Guardian application for a secret report on the 2003 Zimbabwe elections back to the Pretoria High Court for further determination.
This was the essence of a judgment the court handed down on Tuesday.
The judges found that for a court to decide that the State had properly claimed that a record was exempt from disclosure, it should determine whether the State had shown that the withheld information fell within the exemptions claimed.
Because of the nature of proceedings under the Promotion of Access to Information Act, courts may sometimes not have enough evidence to responsibly decide whether an exemption from disclosure was correct.
The judges said this could happen because the requester, not having access to the record, faced difficulties raising genuine disputes of fact as to the exemptions claimed by the State.
It could also occur when the State was limited, under the act, in its ability to refer to the contents of the record in justifying the exemptions it claimed.
Therefore, the court ordered that the High Court in Pretoria be allowed to invoke its right to see the secret report, so it could decide the case.
The M&G was using the act to see the report by two South African judges.
Zimbabwe's President Robert Mugabe retained his position in that election over opposition leader Morgan Tsvangirai.
The judges, Sisi Khampepe and Dikgang Moseneke, observed the elections at the request of former president Thabo Mbeki.
Khampepe is a judge in the Constitutional Court and Moseneke is deputy chief justice. Both recused themselves when the court heard the matter in May.
The publisher of the M&G asked for the report in June 2008, but the president would not release it on the grounds it contained information given by Zimbabwean officials in confidence.
The report was to be used by the president for policy formulation.
The High Court in Pretoria granted an order compelling the president to make the report public.
The Supreme Court of Appeal rejected an appeal by the presidency against the High Court order and the presidency approached the Constitutional Court.
M&G editor Nic Dawes voiced disappointment over the ruling.
“I am disappointed,” he said outside the court.
It meant the presidency's appeal was upheld, and the report could not be released yet.
The newspaper had been trying to get hold of the report for three years.
Dawes said the judgment was important in terms of the controversial Protection of State Information Bill and the difficulties faced when trying to get information from the State, and in the context of next year's elections in Zimbabwe. – Sapa