It is ‘common cause’ that the SMS sent by Ismail Abramjee to Andrew Breitenbach – that Abramjee ‘had it on very good authority’ that Public Protector Busisiwe Mkhwebane’s rescission case was going to be dismissed by the Constitutional Court – was fake.

The University of Limpopo’s law Professor Omphemetse Sibanda say he is still perplexed why Abramjee should influence the continuation of the proceedings of the High Court in this manner.

He adds there are three fundamental problems with this saga: it creates a doubt as to whether the Constitutional Court is staffed with disloyal people or infiltrated by individuals preoccupied with destroying its credibility and integrity, it makes us question what crime has been committed against the administration of justice and what the Office of the Chief Justice is going to do about it; and it makes us ask whether the Gauteng High Court (Pretoria) judge should have stopped the proceedings based on a rumour.

In his opinion piece on the Daily Maverick site, Sibanda says confidentiality of the in-camera deliberations of judges is fundamental to the courts’ tradition of secrecy.

‘The SMS must be seen for what it is: a scandalous leak in one of the country’s highest-profile cases yet to have been handled by the highest court in the land, and possibly the highest test in the history of the democratic judiciary.’

Our courts, he adds, are teetering on dangerous ground if the security of their information is compromised.

Sibanda says the SMS saga should be condemned for fuelling the perception that the judiciary is corrupt and captured.

‘In my view, the Gauteng High Court (Pretoria) blundered and did not do the judiciary’s image a favour if the SMS was dealt with in the way it was widely reported in the media. The prudence of the court in stopping the proceedings may seem at first blush somewhat radical. However, it is not unreasonable when we consider that allegations around the independence of the judiciary and allegations of judicial capture are commonplace.’

He adds the common understanding is that judges should not be influenced by legally irrelevant circumstances in their legal decision-making.

‘The reported SMS and content therein were legally irrelevant to the case before the High Court. One thus cannot fathom why the court acted in the way it did.’

Adds Sibanda: ‘The danger of what happened is that it perpetuates the belief that South African judicial officers are not capable of ignoring irrelevant information and that they are less objective and impartial in their decision-making. If things continue on this trajectory the story being told about the judiciary may develop to be true.’

He says Chief Justice Raymond Zondo should ‘crack the whip fast otherwise his legacy as the leader of the judiciary will be tainted by those who care little about the legitimacy and integrity of the courts’.

Second analysis on the Daily Maverick site