The Supreme Court of Appeal (SCA) on Friday dismissed, with costs, the latest attempt by the presidency to appeal a high court order that it should hand the Khampepe Report to the Mail & Guardian – which in theory means the report, on the freeness and fairness of the 2002 elections in Zimbabwe, will finally become public.
But although it found that the presidency had abused legal process and used implausible and unsustainable legal claims, the SCA nonetheless steered clear of giving anything other than the vaguest of hints at what the report contains.
“Since this might still not be the end of the matter, I shall refrain from disclosing the contents of the report,” judge Fritz Brand wrote in the judgment, concurred to by the rest of the SCA bench, after a so-called judicial peek at the contents. But Brand did disclose that the contents held nothing “that supports the grounds upon which the presidency refused the access sought by M&G”.
At one point during consideration by the SCA the report itself, what the state claimed to be the only copy in existence, mysteriously disappeared, only to reappear again.
The M&G first applied for access to the report in 2008, on the basis that its contents were in the public interest. The report was compiled by justices Sisi Khampepe and Dikgang Moseneke, who were sent to Zimbabwe to provide a view on the conduct of the 2002 elections. Although the report was considered secret, then-president Thabo Mbeki declared South Africa to have been satisfied at the fairness of the elections, as did observers from Nigeria and the Organisation of African Unity.
Violence to sway the vote
Observers from the likes of Norway, on the other hand, said Mugabe’s Zanu-PF had used violence to sway the vote, while other observers pointed to changes in citizenship rules and vote registration as evidence of rigging.
Robert Mugabe declared himself to have won 56.2% of the vote.
The presidency consistently argued – during the terms of both Kgalema Motlanthe and Jacob Zuma – that the contents of the report could not be disclosed. On Friday, however, the SCA said some of its arguments were legal gymnastics and others held no merit.
One technical part of an earlier appeal by the presidency “amounts to abuse of process, which cannot be tolerated”, the SCA found. In another instance the court said that trying to declare that Khampepe and Moseneke had been acting as diplomatic envoys – which could imply that anything said to them was protected as diplomatic communication – “borders on the cynical”.
The presidency had sought to introduce “intricacies” into the case, Brand wrote. Shorn of complications though, the Constitutional Court had found the presidency had not made a case against release of the report, the high court (after a judicial peek) found nothing in the report itself that would justify refusal to release it, and the SCA (after its own judicial peek) was “not persuaded that the high court was mistaken in arriving at the conclusion”.
Representatives for the presidency said the judgment had to be studied before it could comment.