It is a fundamental principle of litigation that a court judgment is confidential until the moment it is publicly delivered. One of the main reasons for this is that secret knowledge of the outcome by one side could give an unfair advantage to the litigant in the know.
For example, two companies are in a court battle. One secretly finds out it has lost the case. It may offer to settle on terms that, if the other company knew it had won, it would refuse.
It is less obvious what the advantage would have been to the speaker of parliament when her counsel, Andrew Breitenbach SC, received what was, at first, an anonymous text message that they had won against the public protector in a case pending at the Constitutional Court.
But the fact that the text was sent to the Breitenbach only, “on a strictly confidential basis”, suggests the intention of the text message was to advantage him or his client.
The sms, sent on Sunday, 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.”
It has since emerged that the author was legal analyst and consultant Ismail Abramjee. This message led to the postponement of a separate, but related, court battle in the Western Cape High Court this week.
Mkhwebane had gone to the high court seeking an interim interdict, to put the brakes on an impeachment process against her in parliament and to prevent her possible suspension by President Cyril Ramaphosa.
Her grounds for the interim interdict against parliament were largely based on the fact that her rescission application to the Constitutional Court was pending.
When the text message was disclosed by Breitenbach to the parties and the court on Monday, they all agreed that the high court case should be postponed in order to seek clarity from the apex court: Was the information in the sms true?
Apart from anything else, if it was true it would have a material bearing on the “scope” of the case, as the letter from Mkhwebane’s attorneys to the Constitutional Court said.
Much of the interdict against parliament stands or falls by the rescission application. Time could be saved if the outcome was known, said judge Nathan Erasmus.
But there is more: What does the text say about the integrity of Constitutional Court?
On Friday, the registrar of the Constitutional Court wrote back to say the allegations were being investigated.
"The outcome of the application for direct access and rescission will be communicated to the parties when the Court has finalised its processes and made its decision," said the letter.
The registrar of the Constitutional Court said the allegations were being investigated
In an interview with the SABC on Thursday night Chief Justice Raymond Zondo said the matter was “very concerning”.
Abramjee did not respond to questions from the Sunday Times. On Wednesday, he said he would soon make a statement. On Thursday he said he would not be making one yet.
But Abramjee told News24 on Wednesday that he had not received any insider information from the Constitutional Court.
He said his text was based on media reports and his own analysis of the strength of the public protector’s case. “Any insinuation that I am somehow linked to judicial capture is disingenuous, misplaced and defamatory,” he said, according to News24.
His account did nothing to abate the “capture” speculation.
Nonetheless, on the currently known facts, we are far from “capture” — or a suggestion of bias by the judges of the Constitutional Court towards or against certain political interests or actors. The wording of the letter from the Constitutional Court - "when the Court has .... made its decision" - suggest that the court has not in fact made a decision.
However in the SABC interview, Zondo appeared to differentiate between the requirements for making a decision in law and in fact. He affirmed the long-held principle that, in law, there is no decision from a court until it has been publicly announced: “The Constitutional Court hasn’t announced a decision, therefore there is no decision that has been taken.”
But he added that, as far as he was aware, his colleagues had not come to a decision. If this had happened, it would have been when he was in meetings, he said.
If it emerges that, at the time the message was sent, the judges of the court had in fact decided to reject the application, then this would suggest that information leaked from the Constitutional Court.
But this does not necessarily mean it was a judge that leaked it. The Constitutional Court is made up of eleven judges, at least 22 researchers and numerous staff, all involved in the processing of its judgments.
The apex court has an excellent record for confidentiality, but the potential for leaks is obvious with that many people involved.
If it emerges that it was a judge who leaked information that would be an indiscretion, and bad. But it would not also necessarily mean bias, unless the revelation was intended reach the ears of Breitenbach; or the circumstances indicated some bias in another way.
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