The report contains the findings of judges Sisi Khampepe and Dikgang Moseneke, who were sent to Zimbabwe by former president Thabo Mbeki to observe the poll.
President Robert Mugabe was declared the winner with 56% of the vote, but Commonwealth and European observers strongly condemned the conduct of the elections.
The South African government, however, effectively endorsed the outcome — despite speculation that the two judges had raised similar concerns in their report to Mbeki.
The M&G first applied for the report in June 2008 under the Promotion of Access to Information Act, but has been blocked by the government’s legal manoeuvring.
Since then, the one presiding officer who has had insight into its contents, North Gauteng High Court Judge Joseph Raulinga, ruled in February that the report indeed alluded to a substantial contravention of the law and should be released in the public interest.
Now, on the eve of another questionable election, the presidency has sought leave to appeal Raulinga’s order before a full bench in the high court, despite the fact that the case has gone to the Constitutional Court without a single finding that upheld the government’s justification for withholding the report.
Should that fail, the presidency could seek leave to challenge the ruling in to the Supreme Court of Appeal once more, which could conceivably take the matter all the way back to Constitutional Court again.
In June 2010, the North Gauteng High Court ordered the president to make the report available in its entirety. That order was confirmed by the Supreme Court of Appeal in December 2010.
The presidency then appealed to the Constitutional Court, which found, by a narrow majority, that the matter should be referred back to the high court for a presiding judge to be afforded a “judicial peek” into the report in order to make an informed ruling on whether the grounds cited for withholding the report were justified. The case was argued in front of Raulinga in the middle of 2012.
In his judgment in February, Raulinga said the report showed Mbeki had appointed a “judicial observer mission” to the 2002 Zimbabwe presidential elections, composed of Moseneke and Khampepe, who were directed to report on whether the poll had been conducted in a manner that was “substantially free and fair”.
Raulinga noted: “Without disclosing the contents of the report, I can reveal that the report potentially discloses evidence of substantial contravention of, or failure to comply with the law.”
This, according to Raulinga’s ruling in February, was enough public interest to trump the presidency’s argument.
However, the presidency has maintained that the report contained privileged information that was given by Zimbabwean officials. Releasing it would therefore damage diplomatic relations.
But Raulinga said that the information in the report came from diverse sources, and “can never reasonably be constructed as information supplied in confidence by or on behalf of another state”.
During arguments on Wednesday — again before Raulinga — the presidency argued that the court had erred in its decision to not accept affidavits from President Jacob Zuma and Mbeki, tendered long after the original case was heard.
Raulinga had ruled the state was trying to “sneak new evidence through the back door”.
Judgment has been reserved.