A new stumbling block has emerged in the Mail & Guardian's battle to have the Khampepe report made public.
An original copy of the contested Khampepe report into the controversial 2002 presidential elections in Zimbabwe has now been found with its authors after the presidency’s original copy went missing from the high court last month, in circumstances presiding Judge Joseph Raulinga suggested were suspicious.
Yet the Mail & Guardian’s six-year legal battle to have the report released in the public interest took another extraordinary turn this week, ahead of a court appeal by the presidency against Raulinga’s ruling last year that the report be handed to the M&G, after he had exercised his power to take a "judicial peek" at it.
Unexpected correspondence from state attorney Petros Rakoatsi this week suggested that the M&G’s hopes of having the report restored to the custody of the courts might have been derailed, had it not been for the timely intervention of Judge President Lex Mpati of the Supreme Court of Appeal.
The office of the presidency’s effort to intercept the report was all the more extraordinary in light of an unusual meeting between Raulinga and the legal teams representing the M&G and the presidency last month.
At the meeting, moments before revealing that the report had gone missing, Raulinga appeared to rebuke Rakoatsi for having made several unsolicited and unsuccessful attempts to retrieve the report from the judge’s custody during court recess, while the judge was away.
In later correspondence with the registrar of the appeal court, Rakoatsi said he rejected any insinuation that he had knowledge of where the report was or that he had a hand in its disappearance.
After the report disappeared from the high court, the presidency claimed that there was no other copy, and suggested to the appeal court – in its heads of argument earlier this month – that any order for the release of the report would now be moot, although it argued that the appeal should proceed and Raulinga’s order be set aside.
Although the presidency declined to take any steps to locate another copy of the report, the M&G approached its authors, Justices Sisi Khampepe and Dikgang Moseneke, who confirmed last week that they had an "original copy" and would provide it to the appeal court if directed to do so.
Rakoatsi quickly intervened, stating that he was taking instructions from President Jacob Zuma. Having done so, he informed the appeal court this week that the report is a "confidential document" of the president, and that all copies should be delivered to him.
Rakoatsi gave the view that the president of the court did not have the authority to issue directions regarding the custody of the report.
"In addition, it is our considered view that, on principle, the Supreme Court of Appeal should not involve itself in any disputes between the parties that may arise with regard to the proof of the identity, provenance, ownership and entitlement to custody and control of any missing or existing documents that are not before the court," he wrote.
"In this regard, arrangements will be made between my client [Zuma] and the justices [Khampepe and Moseneke] to effect such delivery."
Webber Wentzel media lawyers Dario Milo and Ben Winks, on behalf of the M&G, wrote an urgent letter to Mpati, noting that there had been a request to send the report to Zuma, and not to the appeal court.
"Our client is anxious to ensure the report’s safe passage under seal to the Supreme Court of Appeal, without undue detour and delay or risk of further mishap, in the event that you respond to the offer by the justices to produce it at your request," they wrote.
In their correspondence to Mpati, Milo and Winks drew attention to the appeal court’s inherent power to protect and regulate its own process, under Section 173 of the Constitution, and specifically the power as the president of this court to give such direction in such matters.
"We respectfully submit that it would be in the interests of justice for you to apply your power to direct that the report be provided to the Supreme Court of Appeal directly, and under seal," Milo and Winks wrote.
"The report went missing from the high court, in circumstances that the presiding judge suggested were suspicious."
On Wednesday Mpati informed the parties that he had sent a letter to Moseneke and Khampepe, asking them to send him a copy of the report.
Finale of the judicial reality show not in sight
This week’s request by state attorney Petros Rakoatsi that the original copy of the Khampepe report be handed over directly to President Jacob Zuma, and not to the Supreme Court of Appeal, was another showstopper in the lengthy legal wrangle between the president and the Mail & Guardian.
The case began after the newspaper filed a Promotion of Access to Information Act request in 2008 to have the report on the 2002 Zimbabwean presidential elections released. The request was refused and the matter went to court.
Since then, it has proceeded through several courts, and the Constitutional Court ultimately ruled that the case should be referred back to the high court for the judge to take a "judicial peek" at the report.
The case reached a turning point in February last year when Judge Joseph Raulinga ordered the presidency to hand over the report to the M&G within 10 days. He had taken a peek at it and concluded that there were no grounds to withhold it from the M&G, and that its release was indeed in the public interest as it revealed illegal activities relating to the elections.
The presidency’s appeal against his judgment is expected to be heard in the second half of this year in the Supreme Court of Appeal. – Glynnis Underhill