Mkhwebane argues Concourt rescission ruling is not final

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The infamous text message sent to counsel for parliament on a pending constitutional court decision was an attempt to sway the judges hearing Public Protector Busiswe Mkhwebane’s high court battle with the legislature, her lawyer argued on Wednesday.

“There is a possibility out there that somebody in the constitutional court leaked a judgment to influence you, not out of fun, or as a joyride, but to influence the three judges sitting here,” advocate Dali Mpofu told a full bench of the court.

The sender, Ismail Abramjee, informed advocate Andrew Breitenbach that he had it on “very good authority” that the apex court would refuse to hear a rescission application filed by Mkhwebane and would communicate that decision within days.

The application is central to Mkhwebane’s high court application to interdict parliament from commencing a section 194 inquiry that must establish whether she should be impeached for serial misconduct. 

She is also asking the court to bar President Cyril Ramaphosa from suspending her pending the outcome of the inquiry, arguing that he jumped the gun because the inquiry could not lawfully proceed pending the apex court’s decision. She further argues that he cannot suspend her even if that hurdle were cleared because he is conflicted since he is the subject of a number of investigations being conducted by her office.

The constitutional court has denied that it had taken a decision on the rescission application at the time the message was sent, but has launched an investigation into the matter. Some ten days later, on May 6, the court announced that it had decided not to hear the application, and advised the public protector that it would not engage in further correspondence with her on the subject of the text message.

Mkhwebane has responded by filing an application to the apex court to rescind its decision on the first rescission application, an unprecedented step, and is asking that the high court view the state of legal play as it was before 6 May, as she is challenging the decision handed down on that day. 

“This application is now requesting a rescission of a rescission decision,” Judge Derek Wille noted.

Mpofu replied that there was in fact nothing extraordinary about his client’s second approach to the apex court.

“There is nothing in principle that stops that from happening, the law allows us to think outside the box and if you do that, something that looks scary can be broken down to size. 

“Nobody has ever argued that it is catastrophic to appeal a decision denying appeal,” he added, before setting out all the accepted avenues of appeal through the various courts.

The law on rescission applied to any court order, Mpofu continued, because it “does not say you may have a rescission of any order other than a rescission decision”.

Wille suggested that the point was rather the finality of rulings of the constitutional court, and asked: “Is that not the end of the road?”

Mpofu replied: “No, it is far from it.”

He wants the court to accept that the rescission application triggers section 18 of the Superior Courts Act. 

It stipulates that, barring exceptional circumstances, a decision that is subject to an appeal or an application for leave to appeal, is suspended and was recently invoked by Mpofu in the corruption trial of Jacob Zuma to halt proceedings pending the outcome of a reconsideration application the former president filed to justice Mandisa Maya, the president of the Supreme Court of Appeal.

Wille asked Mpofu whether the implication of his argument on rescission applications was not that one could delay a matter indefinitely by filing one after another “ad infinitum”.

Mpofu said he was not concerned with such a hypothesis.

Mkhwebane’s high court application was in April postponed for three weeks after Breitenbach informed the court of the message he had received.

But in a supplementary affidavit filed ahead of this week’s hearing, she said she would not seek another postponement because she did not wish to be falsely accused of deploying Stalingrad tactics to evade accountability.

In passing, Mkhwebane dismissed the term as “a new anti-constitutional invention in the South African legal lexicon” designed to disparage a legitimate exercise of rights.

In the affidavit Mkhwebane went on to argue that the objectives of the April postponement – namely to obtain clarity on how the text message came about and to protect the integrity of the process – have not been achieved. 

She claimed that she was now in a more invidious position still, because it was inescapable that there had been impropriety at the apex court and this had not been addressed. Moreover, she said it was becoming clear that a proper investigation by the constitutional court was unlikely. The May 6 decision was tainted, she alleged, because two judges who were questioned about the message were part of the quorum that arrived at it.

“Either a decision had already been made by 24 April 2022, when Mr Abramjee sent the message to advocate Breitenbach, in which case the illegal and criminal leak would be established, or the decision was only made after the revelation of the alleged leak and by persons who are legitimate suspects of involvement in an illegal and criminal leak, until otherwise proven by a legitimate investigation,” she said.

“Neither scenario is legally palatable or sustainable. There is no third alternative.”

At a meeting of the section 194 inquiry last week, MPs concluded that their work was not affected by the furore over the message and adopted a timetable which envisions MPs reaching a decision by October as to whether to recommend that she be removed from office. 

Mkhwebane argued in her affidavit that the message did in fact contaminate this process, because it was designed to have MPs proceed with the inquiry in violation of her rights.

“In actual fact he [Abramjee] was sending it to the committee and for its benefit. Counsel was merely the conduit,” she wrote.

Mpofu contended that Abramjee made himself guilty of contempt of court by sending the message but that anybody at the apex court who communicated with him, be it a judge, a clerk or a staff member in the registrar’s office, was guilty of corruption.

Abramjee has denied that he acted on a leak, saying he simply informed Breitenbach of his own reading of how the court was likely to rule. But Mkwebane has filed criminal charges against both him and unnamed justices at the court, and insisted that the integrity of the judiciary is now in question.

She had asked the constitutional court to rescind a ruling in February that paved the way for the impeachment inquiry to proceed by uphold a high court judgment dismissing her challenge to the rules the committee had adopted to govern the process. Mkhwebane was successful only in challenging a rule that barred her from being represented by legal counsel in the hearings of the committee.

The case continues on Thursday.