Justice Lex Mpati has concluded there was no evidence to support suspended Public Protector Busisiwe Mkhwebane’s finding that a ruling affecting her may have been leaked from the Constitutional Court.
The matter came to light on Sunday, 24 April 2022, while the matter of the Public Protector v Speaker of the National Assembly and others was pending before the Western Cape High Court.
On that day, Advocate Andrew Breitenbach SC – lead counsel of the Speaker – received an SMS via a telephone he later learned belonged to Mr. Ismail Abramjee, a legal analyst.
The SMS read: “Hello Adv. Breytenbach SC, 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 sometime this coming week but not later than Friday, I thought I’d just share this with you on a strictly confidential basis. Thanks.“
MKhwebane, whose request for rescission was later turned down, suspected that by sending the SMS to Breitenbach, “Abramjee intended to assist and favour a particular side to the litigation and to hurt or prejudice the opposing side, namely, the public protector”.
She then called on the Judicial Services Commission and Hawks to probe the matter and also conducted her own investigation into the sources of the leak.
Mkhwebane had said after her probe that, “the weight of available evidence established in this preliminary investigation appear to tilt the scales towards an ineluctable conclusion that the sources of Mr. Abramjee may well be members of the administrative staff or judicial official based at Constitutional Court and the weight leans more towards members of the judiciary.”
Chief Justice Raymond Zondo appointed retired President of the Supreme Court of Appeal, Justice Mpati, to investigate allegations of leaked information in the “Abramjee’s SMS saga”.
On Friday, Judge Mpati said he had come to the conclusion that admin staff at the Constitutional Court were not the source of the leak because they “do not know the decision of the court before it is brought to them to issue”.
Judge Mpati also ruled out any possibility that Judge’s clerks could have been in a position to leak the final decision to Mr. Abramjee since it was to be finalised more than a week after the controversial SMS was sent to Adv Breitenbach SC on 24 April.
“I accordingly answer the question posed in the negative,” ruled Judge Mpati.
MKhwebane, who was suspended earlier this month as public protector by President Cyril Ramaphosa, is facing an impeachment process that is being conducted by Parliament.