/ 28 April 2022

Message that prompted Mkhwebane case postponement was ‘innocent’

On paper
Busisiwe Mkhwebane has submitted that the constitutional court made “patent errors” in the judgment, which confirmed that the rules adopted by a section 194 parliamentary committee for the conduct of the impeachment inquiry were lawful, barring one. (David Harrison/M&G)

The man who sent the text message that prompted the postponement of public protector Busisiwe Mkhwebane’s application to halt her suspension and impeachment inquiry has denied that he had inside information that suggested any impropriety on the part of the judiciary.

Ismail Abramjee told the Mail & Guardian his approach to advocate Andrew Breitenbach was spontaneous and based on his own estimation of the likelihood that the constitutional court will refuse to entertain Mkwebane’s latest rescission application.

“There was nothing untoward about it at all, this was just my own view,” he said. 

The message to Breitenbach, to whom Abramjee is not known, however, stated that he had it on good authority that the apex court would decline to hear the application, and would communicate this decision no later than Friday, 29 April.

Abramjee did not explain the apparent contradiction between the wording and his subsequent denial of any insight into the court’s thinking, or his motivation for contacting Breitenbach, who is representing parliament in the high court matter. 

He said he is a legal analyst and the elder brother of anti-crime campaigner Yusuf Abramjee and disparages Mkhwebane’s use of public funds to launch successive court applications to stave off impeachment for misconduct and incompetence.

Breitenbach informed the court and his fellow counsel after receiving the message. Mkhwebane’s counsel, advocate Dali Mpofu, then moved for a postponement, with the support of all counsel representing respondents, bar advocate Steven Budlender, who is appearing for the Democratic Alliance (DA).

Mpofu termed what had happened “unfortunate”. Mkhwebane’s office on Wednesday confirmed that her legal team had written to the constitutional court to signal their concern and ask for clarity. Copies of the letter were sent to all parties to the high court proceedings.

The hearing has been postponed to 18 and 19 May.

Judge Nathan Erasmus remarked that the postponement may yet save court time, should the constitutional court in the meanwhile pronounce on the rescission application, given that it is intricately linked to the high court litigation.

Mkhwebane is asking the high court to interdict parliament from proceeding with its impeachment inquiry against her while the constitutional court weighs the rescission application, and to order that President Cyril Ramaphosa may not proceed to suspend her.

Parliamentary spokesperson Moloto Mothapo lauded Breitenbach’s reaction to the message as ethical and prudent and said the speaker supported the application for a postponement to safeguard the integrity of the legal process.

“Parliament has agreed to the decision solely to preserve the integrity of the judicial proceedings. It is important that, if the decision of the constitutional court on the public protector’s rescission application is indeed imminent, the court permits time for the parties to assess the impact of such a decision on the present case.”

But within the legislature and legal circles what transpired has caused anger at the loss of court time and legal fees, the further delay in a parliamentary process that has repeatedly been halted by litigation, and the risk Abramjee’s reckless message holds for the judiciary when political actors, in their bid to avoid accountability, frequently accuse the bench of being “captured”.

“I hope that the constitutional court can initiate action against him because it cannot be that an individual causes this much damage and a strong message must be sent that this is not allowed,” a person close to the proceedings said on Wednesday.

“One does need to be smart to think that the rescission application will be dismissed, but his message did not pass off as his own view on the matter.

“He made the effort to find advocate Breitenbach’s number and then passed on fake news.”

There is also impatience in political circles, a well-placed source said, that the constitutional court had not yet pronounced on the rescission application, which Mkhwebane was using to accuse parliament of breaching the Constitution by planning to proceed with the impeachment inquiry on 4 May. 

The constitutional court has yet to issue directions on the application, which was filed in March, and asks the court to reverse its February ruling, which paved the way for the parliamentary process to proceed.

Mkhwebane has submitted that the court made “patent errors” in the judgment, which confirmed that the rules adopted by a section 194 parliamentary committee for the conduct of the impeachment inquiry were lawful, barring one. 

She was successful only in challenging the rule that had sought to limit the extent to which she could be legally represented when appearing before the committee probing her fitness to hold office.

Rescission applications are upheld only where it can be shown that a court order had been sought or granted in error, or in the absence of the affected party, or to set aside a glaring omission or ambiguity in a judgment. 

They have become somewhat less rare since former president Jacob Zuma tried this route, albeit unsuccessfully, to overturn his conviction for contempt of court last year. This is the second application Mkhwebane has filed in the space of months. 

In March, the constitutional court dismissed her application for rescission of its ruling on her report on donations to Ramaphosa’s 2017 campaign for the leadership of the ANC, which held that she had seemingly deliberately misconstrued the wording of the executive code of ethics to conclude that he had misled parliament.

It is widely expected that the current application, which Budlender has described in court papers as without merit, will go the same way.

But a prominent legal observer, who asked not be named, said if it did, there was a risk that the public protector’s camp would use the message received by Breitenbach to discredit the court’s eventual decision and the judiciary as a whole. 

There was a plain insinuation in the text message that a member of the apex court had communicated a decision reached before it was handed down and he said counsel had given credence to this, inadvertently, by treating it as cause for postponement.

“It was a piece of fake news and it was allowed to derail the process. Advocate Breitenbach’s intention was ethical but why was there no proper inquiry into the authenticity and whether this is material? That is the age in which we live and this is the basic requirement when confronted with information of this nature,” the legal observer noted.

“The damage is done now and it is vast. Financially alone, the cost of two court days for all counsel involved is a matter of hundreds of thousands of rands.”

Mkhwebane’s seven-year term of office expires in October 2023. The DA court papers describe her high court application as an attempt to avoid any reckoning with the legislature until the end of her term, allowing her to use her office and public funds to fight personal battles for another 18 months.

In her court papers, she says she has received a formal complaint from the Economic Freedom Fighters (EFF) implicating Ramaphosa in “judicial capture”, and this contributed to her apprehension that a move to suspend her would be motivated by bias.

The EFF’s complaint was filed eight days after Ramaphosa wrote to Mkhwebane asking her to provide reasons why he should not exercise his constitutional power to suspend her pending the outcome of the inquiry.