Public Protector Busisiwe Mkhwebane says she has referred a probe into the controversial SMS said to have been “leaked” from the Constitutional Court to a lawyer representing parliament’s speaker in her impeachment trial, to the Hawks and Judicial Service Commission (JSC).
On Tuesday, Mkhwebane announced she had completed her preliminary probe into the SMS. But most of those she subpoenaed refused to give her information. They have challenged her investigation’s legality, doubting her powers to investigate. Some, she said, accused her of interfering.
Nonetheless, and without their input, Mkhwebane found the “frequency” or “close association” between Ismail Abramjee, the author of the SMS, and two top judges, Narandran “Jody” Kollapen and Dunstan Mlambo, warranted escalation to law enforcement and the JSC.
There were 18 phone calls between the phone numbers of Abramjee and Kollapen lasting from three seconds to about seven minutes.
Mkhwebane wants the JSC to take things further. The JSC is the body involved in appointing judges and sanctioning those guilty of misconduct. She said this matter “carries all the hallmarks of criminality and nefarious motives” on the part of Abramjee and the “accomplice(s)”.
JSC spokesperson Doris Tshepe on Tuesday said the JSC had not yet received a complaint.
Abramjee sent the text to a lawyer acting for the speaker of parliament a day before an April 22 high court hearing in which Mkhwebane was seeking to have her impeachment process stopped. In the SMS to advocate Andrew Breitenbach he claimed to have it “on very good authority” the top court had declined to hear Mkhwebane’s rescission bid.
“The decision will be made known sometime this coming week but no later than Friday,” read part of the SMS.
Mkhwebane suspects Ambramjee wanted to “hurt or prejudice” her. She opened a criminal case against him and began an official investigation, drawing on a newspaper article from late March.
A Pretoria Rekord article one month before the SMS incident described a Pretoria Legacy Foundation event celebrating Kollapen’s appointment to the top court. It listed Kollapen as the foundation’s chair and Abramjee as its spokesperson. The article reported Mlambo and Gauteng deputy judge president Aubrey Ledwaba attended the celebration.
Based on this article, Mkhwebane deduced Abramjee “may personally know or have contact or communication with certain persons based at the Constitutional Court from whom he may have possibly received information concerning pending judicial proceedings” about her case.
She obtained subpoenas for Abramjee, Breitenbach, Kollapen, Mlambo, cellphone networks, the Constitutional Court registrar and Memme Sejosengwe, secretary-general in chief justice Raymond Zondo’s office.
“Except for Breitenbach and the network providers, all of the other respondents advanced the view that this office is not empowered to investigate this matter,” said Mkhwebane.
About three weeks before the Pretoria Legacy Foundation event, which Mlambo attended, a single call was placed from Abramjee’s number to an official justice department number “reasonably expected to be issued to or used by” Mlambo.
In August, Abramjee wrote to Breitenbach saying he “was speaking to a judge colleague” about a matter pending appeal. Abramjee described the discussion on the role of the SA Law Reform Commission (SALRC). “I thought that this snippet of information may just assist you in your case against the public protector,” wrote Abramjee.
Mkhwebane has noted Kollapen is SALRC chair. She found “the weight of available evidence in this preliminary investigation appears to tilt the scales toward an ineluctable conclusion” Abramjee’s sources could be Constitutional Court personnel. “The weight leans more toward members of the judiciary,” she said.
Replies from the deputy director of communications in the Office of the Chief Justice had not been received at the time of publication.
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