The man who sent the text message that prompted the postponement of Public Protector Busisiwe Mkhwebane’s High Court application to halt her suspension and impeachment inquiry has denied he had inside information that suggested any impropriety on the part of the judiciary, but his message suggested otherwise. 

Legal writer Emsie Ferreira says 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 Mkhwebane’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 29 April (today).

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.

Chief Justice Raymond Zondo said last night he had ordered an investigation into the matter.

‘It is completely unacceptable for anybody to say to anybody (that) a court has made any decision that the court has not announced,’ he said. Zondo added the Constitutional Court has not announced its decision on Mkhwebane's application. As far as he is aware, no decision has been taken.

Abramjee 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 office confirmed that her legal team had written to the Constitutional Court to signal concern and ask for clarity.

The hearing has been postponed to 18 and 19 May 2022.

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.

The M&G notes Mkhwebane is asking the High Court to interdict Parliament from proceeding with its impeachment inquiry against her while the Constitutional Court weighs her rescission application, and to order that President Cyril Ramaphosa may not proceed to suspend her. 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.

‘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 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 2022.

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. It is widely expected that the current application, which Advocate Stephen Budlender has described in court papers as without merit, will be dismissed.

But a prominent legal observer, reportedly told the M&G that 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.

‘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.’

Full Mail & Guardian report