The president of the Pan Africanist Congress of Azania this month requested an urgent investigation into “very disturbing information via a whistle-blower” — that “external parties, including members of the media and/or the ruling party”, had an earlier, separate notification of a judgment from the Western Cape high court about suspended public protector Busisiwe Mkhwebane.
The judgment, delivered on June 10, rejected a bid by Mkhwebane to halt the impeachment process under way in parliament and found there was no conflict of interest at that stage to prevent her suspension by President Cyril Ramaphosa. The judgment was delivered the day after Mkhwebane was suspended. Parties were officially notified of the judgment the day before delivery.
Upon investigation by judge president John Hlophe, the three judges who sat in the case all said they knew nothing of a prior, separate notification and did not send out such a notification.
Presiding judge Nathan Erasmus, who officially notified all the parties and the media of the judgment, said the official notification was “the only notification for the judgment that I am aware of and I can confirm that no other notification or separate notification was sent out as alleged”.
Erasmus said he had not seen Hlophe’s letter in response to the PAC president nor had he been asked about the stamp on the judgment or its handing down in George.
PAC president Mzwanele Nyhontso said he would not reveal the identity of the whistle-blower, but “if true, this would explain the otherwise abnormal and inexplicable behaviour of the president in suspending the public protector on the day preceding the handing down of judgment”.
“He either already knew the outcome or was surprisingly overconfident that the court would definitely rule in his favour. Either version is, for different reasons, very worrisome,” he said.
Hlophe said in his response to Nyhontso, sent on Tuesday, that the notice to the parties of the judgment was sent at 3.43pm on June 9, “at exactly the same time” as the office of the president sent notice to the public protector to tell her she had been suspended.
I did not hand down the judgment and I assure you that no such notification was sent out by me or by my registrar in this connection.
— Judge Derek Wille
He also said that on June 9 he received a WhatsApp message from one of the judges in the case, Derek Wille — who he said was the “scriber” judge. The message showed a picture of a stamp on the judgment, and it said: “Have you ever seen this? The judgment to be delivered tomorrow is date stamped in George today??”
Hlophe said he replied to say “This is hilarious.” Hlophe said he had coffee with judges the next morning and Wille was “visibly shaken and clearly upset”. He invited him and Mokgoatji Dolamo — the third judge on the full bench that heard the case — to his chambers.
“I enquired whether Wille, wished to formally complain about the matter. He responded by saying: ‘No, John, I do not want to get anyone into trouble.’”
The judgment was delivered by Erasmus, who was on circuit court duty in Thembalethu. It was a judgment of “the court”. However, Hlophe said since the case was heard in Cape Town, it would “ordinarily” have been delivered from there. “The scriber, Wille, would naturally have been willing to deliver the unanimous full bench judgment. This did not happen,” said Hlophe.
He then referred Nyhontso to the procedure under the Judicial Service Commission Act for the lodging of complaints of judicial misconduct — “Should you wish to take the matter further, your submission must be in writing in the form of an affidavit,” he said.
In Wille’s response to Nyhontso’s complaint, he makes no reference to his exchange with Hlophe. He said: “The ‘complaint’ charted by the PAC is very difficult to understand as it appears to be directed at an alleged separate notification sent.”
“I did not hand down the judgment, and I assure you no such notification was sent out by me or by my registrar in this connection,” said Wille.
Responding to a query, Erasmus said the date stamp on the photo sent to Wille was because the judgment had been printed for him at the registrar’s office at the Thembalethu court. He did not have his own printer. He was the presiding judge and decided to hand it down in open court due to the public interest in the matter.
The timing of the suspension had also been put in issue by Mkhwebane in part B of the litigation (for which judgment is still pending), though she had originally argued the suspension was a pre-emptive move to avoid the outcome of the court judgment. She later admitted she had been mistaken about the timing but argued Ramaphosa should have waited for the judgment before suspending her.
In an affidavit answering the claim, Ramaphosa said that at the time he took the decision to suspend Mkhwebane, he “had no indication as to when a court order was to be handed down”.
The letter to Mkhwebane informing her of her suspension “had been prepared over a number of days,” he said. By the time the notification from the court came, “I had already taken my decision and had signed the suspension letter”. It was signed on the morning of June 9, he said.
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