Judge Joseph Raulinga grills attorney Petros Rakoatsi over visits to his office to find the "missing" Khampepe report on Zimbabwe's 2002 elections.
A senior state attorney denied this week that he had a hand in the disappearance of the Khampepe report on the controversial 2002 presidential elections in Zimbabwe.
In a letter to the registrar of the Supreme Court of Appeal, Petros Rakoatsi said he rejected any insinuation that he had knowledge of where the report was or that he had a hand in its disappearance.
"I have sought to conduct myself in a professional manner at all times, and have endeavoured to keep the attorneys of the respondents abreast of any steps that I took. I do not have a copy of the report in my files, and never have."
The Mail & Guardian has been trying to get the judicial report released since 2008. The lengthy legal wrangle started after this newspaper filed a Promotion of Access to Information Act (Paia) request to have the report into the Zimbabwean elections released, but it was turned down by the presidency.
The presidency intends to appeal against a judgment handed down by Judge Joseph Raulinga in February last year, ordering that it hand the report to the M&G within 10 days. The case is expected to be heard in the Supreme Court of Appeal in the second half of this year.
Copies of the Khampepe report are now being sought for the appeal case after Raulinga revealed two weeks ago that the report had gone "missing."
The document contains the findings of South African Justices Sisi Khampepe and Dikgang Moseneke, who wrote the report after they were sent by then-president Thabo Mbeki to observe the controversial 2002 Zimbabwe elections.
Not so safe custody
While the case wound its way through the courts, the report was kept in safe custody until two weeks ago, when Raulinga called a meeting with both legal teams and told them the document had gone missing.
He said he had his suspicions about what has happened to the report, but would not elaborate and asked for more time to investigate.
At the meeting Raulinga asked state attorney Petros Rakoatsi why he had made several unsolicited and unsuccessful attempts to retrieve the report from his custody.
Raulinga was not present in his chambers when Rakoatsi tried to get hold of the report.
In preparing for the appeal process, Rakoatsi said in his letter to the registrar of the Supreme Court of Appeal that he was aware the disputed report would have to be filed in a separate and confidential part of the court file.
"To this end, I sought to either retrieve the report from Judge Raulinga or act in terms of any process that the court might direct. This was the sole purpose of my visits to the offices of Judge Raulinga," he wrote. "On each visit, I found the judge's registrar, explained the purpose of this visit and was advised that the judge was not in chambers."
Dario Milo, a partner at Webber Wentzel, said the M&G's legal battle would continue. "At the level of principle, the successive presidents must be held accountable under Paia for what we say are baseless refusals to disclose information.
"The case will establish a precedent as to the obligations of the presidency in like matters and especially where it sends envoys to report on various matters abroad; and how the public interest override in Paia works," said Milo.
There was a continued relevance of the report's findings, he said. If for example it contained allegations by Moseneke, the deputy chief justice, and Khampepe, a justice of the Constitutional Court, that the law had been contravened in relation to the 2002 election, it would still be important to know this today.
Raulinga has undertaken to continue looking for the report and report to the parties within two weeks. He refused to speculate on what might have happened to it.