Chief Justice Raymond Zondo. Picture: Gallo Images/Daily Maverick/Felix Dlangamandla
The Office of the Chief Justice on Thursday said an investigation into the alleged leaks from the Constitutional Court (ConCourt) to legal analyst Ismail Abramjee was close to being completed.
“It is contemplated that it will be completed by the end of next week or in a few days thereafter. The outcome will be made public,” the spokesperson for Chief Justice Raymond Zondo, Lusanda Ntuli, said in a statement.
This followed a preliminary investigation by the Office of the Public Protector into suspicions of maladministration or improper conduct by one or more unidentified employees of the ConCourt, for allegedly leaking information concerning pending judicial proceedings.
Public Protector Busisiwe Mkhwebane on Tuesday closed the investigation into the matter and referred it to both the Judicial Service Commission (JSC) and the Hawks for further investigations.
She said the alleged source of the leaks from the ConCourt may well be from members of the administrative staff or a judicial official, but the evidence pointed towards members of the judiciary.
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This was in connection with an SMS from Abramjee that was sent in April to advocate Andrew Breitenbach, counsel for the speaker of the National Assembly, claiming to have it “on good authority” that the apex court would dismiss Mkhwebane’s rescission application.
The case related to the public protector’s bid to halt parliamentary impeachment proceedings against her, and to interdict President Cyril Ramaphosa from placing her on suspension.
Mkhwebane based her findings in her closing report on an analysis of cellphone data received from network providers, which showed 18 telephone calls were exchanged between the number from which the SMS to Breitenbach was made and the one registered under the name Narandran Kollapen (Justice Jody Kollapen).
A closing report is usually issued in cases where the allegations that gave rise to an investigation are unsubstantiated or if the Office of the Public Protector does not have the jurisdiction to investigate a matter.
“These calls were exchanged between 4 January 2022 and 22 April 2022, two days before Adv. [Andrew] Breitenbach SC received the controversial SMS.
“The shortest call lasted three seconds while the longest took 436 seconds or just over seven minutes,” Mkhwebane said.
There was also a record of another SMS to Breitenbach from Abramjee, seemingly offering advice to Breitenbach that “may just assist you in your case against the public protector”.
The Office of the Chief Justice on Thursday said within days after Abramjee’s SMS saga had arisen, Justice Kollapen informed Chief Justice Zondo and other justices of the ConCourt that he had known the legal analyst for many years and that they lived in the same area.
“He also informed the chief justice and other justices of the Constitutional Court that he and Mr Abramjee are members of the Pretoria Legacy Foundation and that he and Mr Abramjee do interact with each other, including by calling each other.”
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Justice Kollapen is said to have also informed his colleagues that he and Abramjee attended a function sometime in March this year, which was organised by the foundation in Kollapen’s honour.
This was corroborated by Mkhwebane in her preliminary investigation based on a Pretoria Rekord report of March 29.
The newspaper reported that the event hosted by the Pretoria Legacy Foundation was in honour of Justice Kollapen after his appointment to the ConCourt.
Mkhwebane said Pretoria Rekord referred to Kollapen as the chairperson of the foundation and Abramjee as its spokesperson. The event was also attended by Gauteng Judge President Dunstan Mlambo.
The Office of the Chief Justice said Judge Mlambo confirmed this to Chief Justice Zondo and other justices of the ConCourt. However, Mlambo said he met Abramjee for the first time at that event and had never met with him thereafter.
“Justice Mlambo informed the chief justice and other justices of the Constitutional Court that he attended the function that was organised in honour of Justice Kollapen which Mr Abramjee also attended.
“He said that he was meeting Mr Abramjee for the first time in that function and has never met him thereafter.
“Both justices also stated that they never disclosed to Mr Abramjee any confidential information concerning any case at the court.”
Mkhwebane said cellphone records showed that there was contact between Abramjee and a number suspected to be registered to Judge Mlambo on the day of the function.
Meanwhile, the Helen Suzman Foundation (HSF) said Mkhwebane’s preliminary investigation into the “Abramjee SMS saga” was a reason for considerable dismay on the part of the South African public.
The HSF’s director Nicole Fritz called on JSC and the Office of Chief Justice to investigate and resolve urgently the claims contained in the public protector’s closing report.
Fritz accused Mkhwebane of abusing the powers of her office to avoid the impeachment proceedings against her, because the probe was not triggered by a complainant.
“In fact the Public Protector concedes as much in the closing report, recognising that ‘this office is not empowered by law to deal with such a case’.
“This failure to appreciate the extent of the powers attached to the Public Protector’s office is part of a pattern of conduct so flagrant it is hard to see it as anything other than wilful,” she said in a statement.
The foundation said there was “every reason to be concerned that precious public resources have been improperly commandeered for personal interests”.
“That said, the allegations contained in the closing report, and the inferences they appear to support, are of grave concern and potentially impair the integrity of the Constitutional Court.
“This matter should have been long resolved by those authorities entrusted with safeguarding the integrity of the administration of justice and public confidence therein.”
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