THE report on Zimbabwe that President Jacob Zuma refused to give the Mail & Guardian was of such a nature that it would be impossible to separate sensitive from general information in it, Presidency director-general Cassius Lubisi said in an application to the Constitutional Court.

Mr Zuma has applied to the Constitutional Court for leave to appeal against last month’s Supreme Court of Appeal judgment which ordered the Presidency to hand over its report on the 2002 Zimbabwean election to the newspaper.

The report, which was commissioned by then president Thabo Mbeki , was prepared by Deputy Chief Justice Dikgang Moseneke and Constitutional Court Justice Sisi Khampepe.

In his founding affidavit to the Constitutional Court , Mr Lubisi said Mr Mbeki had appointed the two as his special envoys to Zimbabwe to assess its constitutional and legal challenges. Because of their status as presidential special envoys, "the two justices were received as such in Zimbabwe and accorded the diplomatic status befitting emissaries of the president".

"Being representatives of the president … they were expected to receive information in confidence, even when such information might be considered to be innocuous," Mr Lubisi said.

In refusing access to the report, his predecessors concluded it contained information of a strategic, policy formulation nature. He said the crux of his application was the correct interpretation and application of the constitutionally protected right of access to information held by the state.

"It is about the extent to which a president who … obtains information as a result of the constitutionally mandated powers accorded to him … may rely on the exclusionary and exemption provisions of the (Promotion of Access to Information) Act in not disclosing that information to the public," he said.

mabuzae@bdfm.co.za

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