On Friday, two letters directly contradicting each other were sent to the General Council of the Bar (GCB), one from the office of the public protector and one from attorneys acting on her behalf.
The first letter withdrew subpoenas sent to Constitutional Court justice Jody Kollapen and Gauteng judge president Dunstan Mlambo. The second refused to withdraw the subpoenas.
However, the public protector’s spokesperson Oupa Segalwe said there were different interpretations of the applicable law and the point of the attorneys’ letter was to dispute the involvement of the GCB and question how the national advocates’ body came by confidential subpoenas.
The subpoenas required the two justices to submit affidavits in an investigation into an SMS sent last month by Ismail Abramjee to counsel for the speaker of parliament, Andrew Breitenbach SC, ahead of litigation by Busisiwe Mkhwebane to halt impeachment proceedings against her in parliament.
Mkhwebane was litigating in the Western Cape High Court to interdict the impeachment process.
She had also approached the Constitutional Court, applying for it to rescind its February judgment on the constitutionality of impeachment rules which cleared the way for the impeachment process to proceed.
In the SMS Abramjee said he had it “on very good authority” that the Constitutional Court had declined to hear Mkhwebane’s rescission application and would announce that decision before the coming Friday, which would have been April 29.
With the sms as a basis, Mkhwebane then sought to overturn the Constitutional Court when it refused her rescission application on May 6, making legal history when she applied for it to rescind its refusal to rescind. And, though the Constitutional Court said it would investigate the sms, Mkhwebane has laid a criminal complaint with the police and told the highest court her office would be conducting its own investigation.
The subpoenas sent out by her office on May 17 referred to a news report about an event hosted by the Pretoria Legacy Foundation in March to celebrate Kollapen’s recent appointment to the Constitutional Court.
The report quoted Abramjee, spokesperson for the foundation, as saying that guests included Kollapen and Mlambo, who is now acting at the apex court.
“From the above article it can be inferred that Mr Abramjee may know or may have contacts or communication with certain people based at the Constitutional Court from whom he may have possibly received information concerning pending judicial proceedings,” said the subpoenas.
But among other objections, the GCB said in a letter “the public protector has no power to investigate the judiciary. Any complaints against the judiciary are to be dealt with in accordance with the Judicial Service Commission Act, 1994". The GCB’s urgent letter threatened legal action if the subpoenas were not withdrawn.
The letter was sent on Thursday to Vusumuzi Dlamini, an investigator in the public protector's office. Dlamini had, in a written delegation by Mkhwebane, been given “all powers” normally conferred on Mkhwebane “to conduct the investigation” into the SMS.
When it comes to Ismail Abramjee's sms, this is not the first time the public protector appears to be at odds with members of her office
On Friday, Dlamini responded to the GCB. “We fully appreciate that the office of the public protector has no power to investigate and pronounce on [the] exercise of judicial functions,” he said.
“In view of the totality of all the legal objections,” the subpoenas were withdrawn.
The letter from Seanago Attorneys dated the same day was very different. It said “the alleged improper and/or criminal leaking of information from the Constitutional Court ... falls directly in the heartland of the public protector’s mandate.”
It found it “puzzling and very curious, to say the least” how the GCB had “improperly” come into possession of the subpoenas, which were “confidential documents sent directly and only to the recipient judges. This raises the question of who might have leaked the subpoenas to the GCB and why”.
The Seanago letter “most certainly” refused to give the confirmation sought by ENS Africa, for the GCB that the subpoenas were withdrawn. The GCB responded that they had already been withdrawn.
Mkhwebane’s spokesperson Segalwe said the investigation into the leak was “ongoing”. “To the extent that members of the judiciary form part of the investigation, the office is seeking urgent legal advice, which will be obtained by Monday. The subpoenas are therefore temporarily withdrawn pending this legal advice.”
But he said the GCB “should stay out of and play no role in this matter” and that the subpoenas were confidential. “It is unclear how, why and by whom they were sent to the GCB. To that effect, a separate letter was sent to the GCB’s attorneys by the attorneys of the office,” said Segalwe. He added that there were different interpretations of the relevant law, which would “be sorted out once legal advice is obtained”.
GCB chair Craig Watt-Pringle SC said: “The GCB represents some 3,000 practising advocates who have an intense interest in defending the dignity and independence of the judiciary ... The subpoenas constitute a personal attack on the judges and this impacts both on the independence and dignity of the judiciary.”
This is not the first time that Mkhwebane has appeared to be at odds with members of her office over an investigation into the sms. Earlier this month her deputy Kholeka Gcaleka said in correspondence she was not investigating the sms, as previously claimed by Seanago.
Segalwe at the time attributed this to a miscommunication due to Mkhwebane being out of the country.
• Rabkin is also the editor of Advocate, the GCB’s thrice-yearly journal.
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