/ 4 May 2022

Mkhwebane says she will lay charges against SMS sender

In yet another court case against Busisiwe Mkhwebane
Busisiwe Mkhwebane. (Oupa Nkosi)

Public Protector Busisiwe Mkhwebane says she will, on Thursday, lay criminal charges against the man who sent a message to opposing counsel in her legal standoff with parliament suggesting the outcome of her latest constitutional court application had been leaked.

Her office said she would “visit Brooklyn police station near Hatfield in Pretoria to lay criminal charges against Mr Ismail Abramjee and his accomplice(s)”.

This comes after Mkhwebane directed a second missive to the apex court, declaring her dissatisfaction with its response to the first in which it said it was investigating the allegations she made.

In the brief missive dated 29 April, the registrar of the court thanked Mkhwebane for bringing the matter to its attention and added: “The allegations contained in the letter are currently being investigated.”

The correspondence concerns a text message sent by Ismail Abramjee to advocate Andrew Breitenbach, who represents the speaker in opposing Mkhwebane’s application for an interdict barring a section 194 parliamentary committee from proceeding with an impeachment inquiry. against her pending the outcome of her rescission application to the constitutional court.

She has asked the court to reverse or rescind a ruling in early February that put paid to her bid to have the rules adopted by the committee struck down.

The rescission application is central to the application before the Western Cape high court because Mkhwebane is that parliament be barred from proceeding with the inquiry pending the decision of the constitutional court. She is also seeking to interdict President Cyril Ramaphosa from suspending her.

Abramjee’s message to Breitenbach was sent two days before the high court hearing. 

It said that he wished to inform Breitenbach in strict confidentiality, and on very good authority, that the constitutional court had decided not to hear Mkhwebane’s application and would make its decision known no later than the end of that week.

Breitenbach, who does not know Abramjee, informed the court and his fellow counsel in the matter, and Judge Nathan Erasmus postponed the hearing until 18 and 19 May.

The extraordinary implication in Abramjee’s message was that the court had leaked a decision, which should have remained confidential until it is communicated to the applicant. But there is no indication that this was true.

The court has made clear, as it reiterated in its letter to Mkhwebane, that no decision has been taken on her rescission application. And Abramjee, who identifies himself as a legal analyst, has strenuously denied that he was advising Breitenbach of anything other than his own intuition on the matter.

After telling the Mail & Guardian that he would soon explain why he had sent the message, Abramjee failed to respond to further questions on the subject.

In a press statement on Wednesday, Mkhwebane stressed that the wording of his message “suggested that the apex court’s decision was leaked to Mr Abramjee before it could be made public”.

She added: “The decision in question has a profound bearing on the proceedings before the Western Cape high court. The leaking of such sensitive information, if established, will also have a huge bearing on the rule of law and the independence of the judiciary.”

Her office has confirmed that apart from sending another letter to the constitutional court, she has written to the speaker to ask that the impeachment inquiry be placed on hold until the circumstances surrounding the text message had been established.

This would place in limbo a process that Mkhwebane has been seeking to avert through litigation since March last year when a high level panel appointed by parliament found prima facie evidence that she had displayed incompetence and misconduct that merited a full-scale inquiry into her fitness to hold office. 

She all but ran out of legal recourse in February when the apex court found that, in the main, the rules of the inquiry would stand, and then filed the rescission application. 

But such 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.  

It is widely expected that hers will fail but a prominent legal observer, who described the message as malicious “fake news”, said there was now a risk that if this happened, the public protector’s camp would use it to attempt to discredit the court’s eventual decision and the judiciary as a whole.