Captured judiciary: No evidence that ConCourt judges, staff leaked info about Mkhwebane's case

There is no evidence that somebody within the Constitutional Court gave confidential information to Ismail Abramjee concerning public protector Busisiwe Mkhwebane's application before that court.

Retired Supreme Court of Appeal president Lex Mpati made this finding after being asked by chief justice Raymond Zondo on June 3 to investigate whether there had been a leak from the ConCourt as suggested by an SMS from Abramjee, a legal analyst.

Mpati submitted his final report on Wednesday to chief justice Raymond Zondo who said he regarded the matter as closed.

The SMS was sent to advocate Andrew Breitenbach SC, the lead senior counsel for parliament's speaker, on April 24.

The text message led to the last-minute postponement of an urgent application in the Western Cape High Court to put the brakes on impeachment proceedings in parliament and to interdict Mkhwebane's possible suspension by President Cyril Ramaphosa.

The message read: "Hello Adv Breytenbach [sic], Re: The public protector case tomorrow. I have it on very good authority that the ConCourt has declined to hear the public protector's rescission application. The decision will be made known some time this coming week but not later than Friday. I thought I'd share this with you on a strictly confidential basis. Thanks."

Mkhwebane conducted an investigation and said the source of alleged leaks from the court to Abramjee may well be from members of the administrative staff or a judicial official — but the evidence pointed towards members of the judiciary.

Mpati said all the justices, except Justice Jody Kollapen and Judge Dunstan Mlambo, confirmed they did not know Abramjee and had not had any communication with him. .

Mpati said when the question of the SMS arose, Kollapen had informed his colleagues he knew Abramjee, that they lived in the same community in Laudium and were both members of the Legacy Foundation.

Kollapen told Mpati he never disclosed to Abramjee any confidential information in their interaction with each other.

Mlambo told Mpati that he met Abramjee for the first time at a function held in honour of Kollapen after his appointment to the apex court in March.

Mlambo told Mpati that ever since that function, he has not communicated with Abramjee regarding any case before the court nor the case that gave rise to the SMS.

Mpati also relied on an affidavit deposed to by Abramjee on April 28.

Mpati said Abramjee stated under oath that at no stage did he discuss, nor was he alerted to, or given any information by any judge, registrar's clerk, or any employee of the court in relation to the rescission application brought by the public protector.

Abramjee said he became aware on "Twitter" earlier in April that the court was likely to hand down its decision on the public protector's rescission application on April 30.

"From his own knowledge, based on authorities ‘placed before the Constitutional Court' in previous rescission applications, he concluded that the court would not entertain the said application.

"He continued that this was what he had intended to convey in the text message and regrets the ‘incorrect (impression created) that he was privy to inside information'. Finally, Mr Abramjee takes full responsibility for the impression that flows from his text message," Mpati said.

Mpati said the frequency of calls between Kollapen and Abramjee was fully explained by both as they are the members of the same organisation  which requires them to communicate frequently.

"This was ignored by the public protector," Mpati said.

Mpati also said the judges' clerks could not have been in a position to leak the final decision to Abramjee, since it was finalised only at the  judges' final conference on May 4, while the controversial SMS was sent to Breitenbach on April 24.