Pretoria high court Judge Joseph Raulinga has revealed that the Khampepe report into the controversial 2002 presidential elections in Zimbabwe has gone "missing".
It has not yet been determined if the confidential report was removed from the judge’s office.
The Mail & Guardian has been trying since 2008 to get the report released. The lengthy legal wrangle started after this newspaper filed a Promotion of Access to Information request in 2008 to have the report into the Zimbabwe elections released. It was refused, and the matter went to court. The case has proceeded through the courts over the years, 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 Raulinga ordered President Jacob Zuma and the presidency to hand over the report to the M&G within 10 days. This was after Raulinga had first taken his peek and confirmed it cast doubt over the legality of the elections. Meanwhile, an appeal by the presidency against Raulinga's judgment is expected to be heard in the second half of this year in the Supreme Court of Appeal.
While Raulinga has told both legal teams he has his suspicions about what has happened to the document, he would not elaborate, and has asked for more time to investigate.
At a meeting last week between Raulinga and the legal teams, it was disclosed that between December last year and February this year, a senior state attorney had made several unsolicited and unsuccessful attempts to retrieve the report from the judge’s custody, in his absence.
The sought-after document contains the findings of South African Justices Sisi Khampepe, and Dikgang Moseneke, who were sent to Zimbabwe by then-president Thabo Mbeki to observe the 2002 elections.
The office of the state attorney has informed the M&G's legal team that the report provided to Raulinga was the original version, and that the presidency was not in possession of any copy of the report.
While the state attorney's office has written to explain to the registrar of the Supreme Court of Appeal that the disputed report cannot be found, the M&G's legal team has weighed in by querying its version of events.
"Ourselves and attorneys for the respondent attended a meeting called by Raulinga J of the North Gauteng High Court. He has advised us that the confidential report, which is the subject of this case and which was in his custody is missing. He has diligently searched for the report and he cannot find it," wrote Petros Rakoatsi, a senior state attorney in the office of the state attorney in Pretoria.
"He has however indicated to the parties that he will still try to look for the report again, and will report again to the parties to the matter in two weeks’ time."
In another twist to this long-running legal wrangle, Dario Milo, a partner at Webber Wentzel, the law firm acting for the M&G, also wrote to the registrar of the Supreme Court of Appeal, stating that Rakoatsi had not "fully recorded" the meeting with Raulinga in his letter.
Milo and his team had assumed the judge wanted to confirm with the parties the manner in which the report should be sent to the Supreme Court of Appeal to vouchsafe its integrity and security. Yet Raulinga commenced the meeting by asking Rakoatsi to disclose to the M&G legal representatives what had transpired over the preceding months.
"On the judge’s prodding, the state attorney revealed to the Webber Wentzel representatives that, between December 2013 and 5 February 2014, he [Mr Rakoatsi] had made several unsolicited and unsuccessful attempts to retrieve the report from the judge’s custody, in the judge’s absence, without any prior notification to Webber Wentzel," wrote Milo.
At the meeting with Raulinga and the legal representatives, there was further discussion about the report, and where it would be kept for safekeeping, and it was only after this that Raulinga dropped the bombshell.
"At this point, Judge Raulinga related to the parties that the report had gone missing, that he did not know how it could have gone missing, but that he has his suspicions, although he could not disclose to us what those suspicions were," Milo wrote in his letter to Myburgh.
Raulinga had indicated he had conducted an extensive search for the report. "The judge stated further that he would not tell us where he had stored the report and that he did not know how it could have gone missing," wrote Milo to the registrar.
"The judge indicated that he required a further one or two weeks to investigate the matter further. On the very same day, Friday February 7 2014, the state attorney informed us that the report provided to Judge Raulinga was the original version, and that the presidency was not in possession of any copy of the report."
Milo has asked the Supreme Court of Appeal that the appeal should proceed unimpeded, while the report is either recovered or replaced with a "true copy".
"It was implicit in the circumstances relating to the report finally being produced by court order, as against the sustained resistance of successive presidents, that the judge would hold what he received in safekeeping. If, [as the judge has suggested] it may have been appropriated from his chambers, an investigation is required," wrote Milo.
In the letter Milo sent to registrar Paul Myburgh, he said Raulinga had on February 4 2014 invited the relevant legal representatives to a meeting the next day, but it had to be rescheduled to February 7 2014.
"Upon our written enquiry, copied to the state attorney, we were informed that the meeting would be 'about the report'."