Public protector Busisiwe Mkhwebane’s case on the infamous SMS from Ismail Abramjee was based on “speculation and conjecture”, said counsel for the speaker of parliament in court on Thursday.
The Western Cape High Court was hearing its second day of argument in the public protector’s urgent interdict application to halt an impeachment process in parliament and to prevent her possible suspension by President Cyril Ramaphosa, who has given Mkhwebane until May 26 to tell him why she should not be suspended.
On Wednesday Mkhwebane told the high court the SMS sent to the speaker’s counsel, Andrew Breitenbach SC, by Abramjee last month was a criminal act intended to advantage the speaker, disadvantage the public protector and influence the high court judges.
The SMS said: “Hello Adv Breitenbach, 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 said I’d share this with you on a strictly confidential basis. Thanks.”
Inferential reasoning reaches a point where it might be entertaining around a dinner table, but it’s not a basis for judicial decision-making.
— Andrew Breitenbach
At the time the SMS was sent, an application by the public protector was pending before the Constitutional Court. It asked the apex court to rescind its earlier judgment that cleared the way for an impeachment process in parliament. Mkhwebane had also separately applied to the high court for interim orders, which were to a large extent dependent on the outcome of the rescission application at the Constitutional Court.
The high court postponed its hearing after the SMS was disclosed by Breitenbach. This week, the high court reconvened to hear her urgent interim interdict application. In the meantime, the Constitutional Court dismissed her rescission application. It also indicated it would investigate the SMS. Mkhwebane then went back to the highest court, asking it to rescind its refusal to rescind and argued before the high court that it should grant her the interim interdicts, saying a rescission application to the Constitutional Court was still pending.
On Thursday Breitenbach argued the SMS was not a reason for the court to stop the impeachment process. He said the SMS had nothing to do with what was before parliament’s impeachment committee, which was to look into specific allegations of misconduct and incompetence against the public protector. “The two don’t overlap at all,” he said. In addition, whatever advantage that could have been achieved by sending the SMS had been negated when he disclosed it to the court.
Breitenbach argued: “One needs to distinguish very carefully between speculation and the facts which one knows from the record; and the inferences which one reasonably draws from that.”
Looking at the facts that were known, Breitenbach said Abramjee’s SMS made two statements: first, that the Constitutional Court had declined to hear the application, and second, that this decision would be made known in the coming week, before Friday.
On the first, he said when the parties had enquired from the Constitutional Court whether the SMS was true, the court had responded that the outcome of the application “will be communicated to the parties when the court has finalised its processes and made its decision”.
He said if one considered the words “and made its decision”, the “only possible meaning is that the Constitutional Court had not yet made its decision”.
So the first part of SMS was false, he said. And, as it turned out, the decision was not made known “within the week” and so the second part of the SMS was also false, said Breitenbach.
He added the order dismissing Mkhwebane’s rescission application had come after the Constitutional Court said it would investigate the SMS. Nine justices had participated in the decision to dismiss. It was “improbable” that a justice who participated in the order was responsible for a leak to Abramjee, said Breitenbach.
“Inferential reasoning reaches a point where it might be entertaining around a dinner table, but it’s not a basis for judicial decision-making.” That aspect of her case was “based on speculation and conjecture”, he said.
Counsel for the president, Karrisha Pillay SC, said Mkhwebane was not entitled to the orders she was seeking against Ramaphosa.
Ramaphosa’s power to suspend Mkhwebane was a constitutional power, she said. While it was not immunised from judicial scrutiny, the threshold for a court to interfere with it was “a very high one; and it is one the public protector has manifestly failed” to meet.
Adv Dali Mpofu had argued Mkhwebane could not be suspended because, in law, the impeachment inquiry had not started. The constitution says the president may suspend the head of a chapter nine institution only “after the start of the proceedings of a committee of the national assembly for the removal of that person”.
Asked by the bench to help determine when, in law, the proceedings could be considered to have started, Pillay said one of the factors the court had to consider was the purpose of giving the president the power to suspend. Purposes included protecting the integrity of the office of the public protector and safeguarding the impeachment proceedings by ensuring against the victimisation of witnesses.
If, as Mpofu had argued, the “proceedings” were only to start when the impeachment committee began to hear evidence, “the effect of that is to fundamentally undermine the integrity of any proceedings”, she said. She said whatever had happened historically, by now, “as you adjudicate”, the committee’s proceedings had started.
Steven Budlender SC, for the DA, said Mkhwebane’s first rescission application to the ConCourt was “was utterly hopeless” — “and I say this deliberately and carefully”, he said. Her second “is beyond hopeless”.
Recounting the history since 2019 when the Constitutional Court had first found her in a judgment to have acted in bad faith and been dishonest, he said for three years the public protector had “embarked on a concerted campaign to prevent her impeachment proceedings”.
He said the litigation was an attempt to prevent the impeachment proceedings at any cost — “no matter how esoteric the legal strategy, no matter how contrived, no matter how utterly hopeless”.
