Mkhwebane not satisfied with ConCourt response to SMS allegation

The Constitutional Court’s response to the revelation of the infamous text message about a pending application before it has caused “the utmost dismay and concern on the part of the public protector”, Busisiwe Mkhwebane’s lawyers said in a second letter to the court on Tuesday.

The text message related to an application, yet to be decided, at the Constitutional Court by Mkhwebane to rescind or reverse the ConCourt’s February judgment on parliament’s impeachment rules. The judgment cleared the way for an impeachment process against Mkhwebane in parliament.

The SMS, sent by consultant Ismail Abramjee, was sent ahead of a separate but related application scheduled to start in the Western Cape High Court last week to interdict the impeachment process from going ahead and prevent Mkhwebane’s suspension by President Cyril Ramaphosa.  

The message said: “Hello Adv Breytenbach [sic], Re: The public protector case tomorrow. I have it on very good authority that the ConCourt has declined to hear the public protector’s rescission application. The decision will be made known some time this coming week but not later than Friday. I thought I’d share this with you on a strictly confidential basis. Thanks.”

Judgments are normally confidential until the moment they are publicly announced.

The high court application was postponed after counsel for speaker of parliament Andrew Breitenbach SC disclosed the text message. The parties agreed to the postponement to “seek clarity” from the Constitutional Court as to whether the message was true.

Responding, the ConCourt said it was investigating the allegation and “the outcome of the application for direct access and rescission will be communicated to the parties when the court has finalised its processes and made its decision”.

This response did not satisfy Mkhwebane. In a letter sent on Tuesday, her lawyers said it “raises more questions than answers”.

Regarding the investigation, she asked the Constitutional Court to respond to seven further questions on the details of the investigation, including who is conducting it, what is its “scope or terms of reference”, whether witnesses will be questioned orally or in writing and whether the findings would be “shared with the parties and the public simultaneously or sequentially”.

When the ConCourt said it would communicate the outcome “when the court has finalised its processes and made its decision”, Mkhwebane’s lawyers said this made her anxious and concerned as it “sounds like an indirect confirmation of some of the information illegally communicated”.

The letter refers to an interview with chief justice Raymond Zondo with the SABC last week Thursday. When asked about the SMS, the chief justice said there is no decision of a court until it has been publicly announced, that it was completely unacceptable for anyone to tell anyone else there had been a decision until there was a public announcement and he was not aware whether his colleagues had made a decision in his absence.

Mkhwebane’s lawyers said the ConCourt’s letter and the interview indicated  “some decision has been made but not yet announced”.

The statements in the letter and interview “do not make sense”, given that the parties were, in terms of the rules of the Constitutional Court, awaiting directions from the chief justice “and/or requiring the speaker to submit her answering affidavit”.

The letter said all of this raised “pertinent questions”, including whether a decision had been taken without the issuing of directions by the chief justice, and “if so, when and on what specific date was that decision taken”?

Mkhwebane’s lawyers also asked whether it was permissible to reach an “outcome” without the chief justice issuing directions.

The letter, “as a matter of courtesy”, informed the court Mkhwebane had decided to refer the matter to the police “for further investigation of any criminality on the part of Mr Abramjee or any other person”.

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