The M&G applied to the High Court in Pretoria, South Africa, for access to a report compiled by Judges Dikgang Moseneke and Sisi Khampepe, containing their conclusions about the fairness of Zimbabwe's 2002 presidential election.
The presidency opposed the application, contending revelation of the report would lead to a deterioration of relations between South Africa and Zimbabwe.
The government also contended the report was still being used to formulate policy on Zimbabwe, was a "record of Cabinet" and that the Promotion of Access to Information Act (Paia) therefore did not apply.
The newspaper's lawyer Jeremy Gauntlett SC argued there were no current documents or affidavits to support the "flimflam" that the judges were "some sort of new Marco Polos for the president".
Their mission was not handled by foreign affairs, but by the president's offices and it was clear they had consulted with a wide cross-section of organisations, not just with Zimbabwe's government.
There was also no confirmation that the judges and former chief justice Arthur Chaskalson would have lent themselves to such an extraordinary arrangement just a month after the Constitutional Court ruled judges could not be "borrowed" for executive functions.
There was no indication the judges had agreed in advance they would be acting under complete secrecy, he said.
Gauntlett argued the two judges were sent on a fact-finding mission and that former president Thabo Mbeki only afterwards decided their report would be a good basis for policy decisions.
Regarding argument that Paia did not apply, there was no evidence Cabinet ever considered the report and the government could now not use this technical argument "to squeeze a factual foot into a Cinderella slipper which does not fit it".
The newspaper contended the report was of enormous public interest, especially where there was a widespread view that the 2002 elections were marred by vote-rigging, intimidation, violence and fraud by President Robert Mugabe's government.
It contended the report was particularly important in light of the fact that South Africa was one of the [few] countries to declare it regarded the election as free and fair.
The presidency's lawyer Marumo Moerane SC, stressed the need for confidentiality and trust between Zimbabwe and South Africa.
"In the respondents' view, it would not only be remiss of them to disclose this information which was given in strict confidence, but such disclosure could also impair South Africa's ability to continue to play a facilitating role in assisting Zimbabweans to resolve their political differences."
Moerane argued the two judges were received in Zimbabwe as the president's envoys and were expected to discuss and receive information in confidence.
"It could hardly be considered appropriate for the facilitator of the dialogue to be seen to be breaching confidences that were shared for a specific purpose," Moerane added.
The application continues before Acting Judge L Sapire.
Source: Sapa
