In its heads of argument, and in another attempt to avoid handing over the Khampepe Report into the 2002 Zimbabwe elections, the state appears to have submitted a red herring argument.
It probably will not hold up.
On September 4, the Mail & Guardian and the presidency will meet at the Supreme Court of Appeal in Bloemfontein. The appeal court will hear the next round of arguments about whether or not to make public a report compiled by Constitutional Court justices Sisi Khampepe and Dikgang Moseneke into the fairness of the 2002 election in Zimbabwe.
The state is appealing a judgment by the high court in Pretoria, written by Judge Joseph Raulinga, that the report should be handed over to the M&G in the public interest.
That was the fourth court to hear the matter and agree that the state was not entitled to keep the report from being released.
But earlier this year, the Khampepe report went missing from judge Raulinga’s office.
It was around this time that the state filed its heads of argument, relying heavily on the idea that the report was missing, and that this should render the case of the M&G null and void.
Report recovered and duplicated
The state argued in papers that the appeal court could not reasonably compel the state to hand over the report if it was no longer in existence. This was because Raulinga’s judgment was not technically unenforceable.
The argument was more a side issue than a central pillar of the state’s case, and now that the report has been recovered, it is a moot point.
But the M&G understands that the state has made no attempt to file supplementary affidavits to adjust its arguments, although its lawyers will be allowed to do so in person on September 4.
The report is now under lock and key. But before it was found, the president of the appeal court, Lex Mpati, prompted by lawyers for the M&G, asked the original authors of the report to send a copy to the appeal court for safekeeping.
So two copies now exist – one is held at Raulinga’s chambers, the other at Mpati’s chambers.
But the state could theoretically bring up a second argument, this time regarding the legitimacy of the report, according to sources close to the case. It is possible that the state could try to argue that the two reports might not be identical, and that they should first be compared to ensure their authenticity.
‘Confidentiality’ and ‘diplomacy’
This would further delay the case, setting off another trial-within-a-trial that would not deal with the substantive merits.
Without the argument that the report does not exist, or that the second copy is not legitimate, the state bases its appeal on two grounds:
First, the state says that Raulinga was wrong when he denied former president Thabo Mbeki and President Jacob Zuma leave to submit two supplementary affidavits, on the eve of the high court hearing.
“We submit not [Raulinga did not err], and that the case ends here,” lawyers for the M&G retorted in their papers.
The second argument is a legal one – does the public interest in the fairness of those elections override the provisions in law that allow the state to keep secrets in the interest of good governance and diplomacy?
On September 4, the state is likely to resurrect the argument that the report will damage South Africa’s relationship with Zimbabwe and that “diplomats” – Khampepe and Moseneke in this context – are entitled to confidentiality.
But lawyers for the M&G disagree, given that no court to date has agreed with the state on that point.
“The president has demonstrated no material respect in which the high court erred,” the M&G‘s lawyers said. “The appeal should be dismissed, with costs, including the costs of two counsel.”