By: Paul Ngobeni and Clyde Ramalaine
The verdict of the Constitutional Court on the Public Protector’s plea for rescission is out. Such an announcement would be considered standard in any typical setting and not attract any real fanfare. Yet, Mzansi attests to a unique society and State where what is often standard is not always practiced. If only the verdict came without the preceding despicable event of an Ishmael Abramjee, who dared to insert himself and the Constitutional Court in verdict findings before the release of the actual ruling. What Abrahmjee did is now a historical precedent and on all true constitutional democrat lips? Abramjee, a legal analyst who is seen in photographs with Constitutional Court judges and senior jusrists, dared to share the concluded outcomes and findings of the Constitutional Court as he termed it in his SMS to Advocate Breytenbach: “I have it on good authority” What Abramjee did in any country that takes its democracy serious is treasonous and criminal by all standards. Unfortunately, “I have it on good authority…” in simple English never can be substituted with “It is my legal analysis…” Notwithstanding Abramjee’s latent disowning and futile attempt to extricate himself from what he said, the record stands.
Once news broke on this unfortunate and ill-considered act on the part of Abramjee, as usual, a particular section of the embedded journalists launched their glaring mop-up process. Initiated with a clear-cut focus to spin the intensity and content of the short message text. Despite the frantic attempts by racist pseudo-journalist to spin-doctor and sanitize the criminal conduct of Ismael Abramjee, who brazenly committed the crime of contempt of Court and interfered with the administration of justice, a serious crime was committed against the justice system and the Public Protector. This crime deserves prompt, thorough and credible investigation by the Chief Justice followed by swift punishment of the guilty party.
Any court of justice worth its salt would be rightly concerned to ensure that its judgments are only released into the public domain at an appropriate juncture and in a proper manner. It is both shocking and despicable that an interloper purports to have insider knowledge of constitutional court judgments still being prepared or drafted. He purports to know on “good authority” that the Concourt would issue an adverse judgment against the Public Protector at a particular time; that he knows the time frame of the Court’s announcement of the Court’s release of the said adverse judgment. But it is even more scandalous when the busy-body rascal seeks to use the information supplied by his Concourt sources to affect the outcome of pending judicial proceedings in the Western Cape High Court.
It is alleged that Ismael Abramjee conveyed the information to Advocate Breytenbach, who was representing the Speaker of Parliament in the interdict application brought by the Public Protector. Abramjee claimed he was sharing this information in the “strictest” confidence. It was a clearly orchestrated move to ensure that when the information conveyed to Breytenbach is ultimately relayed to the High Court; it should have an adverse effect on the adjudication of the entire Public Protector’s case. The publication unquestionably created a substantial risk that the course of justice in the proceedings in the WC High Court would be seriously impeded or prejudiced – either the Court would postpone the matter after receiving the alarming news, or it would issue an adverse judgment if it accepted that the Concourt would indeed issue the adverse judgment as alleged by Abramjee. Here the risk was more than remote and not merely minimal, as it caused the postponement of an urgent interdict to the detriment of the Public Protector. The interference or disclosure undermined the authority and impartiality of the judiciary at both the Concourt and High Court levels. That is a very serious matter that should have received urgent attention from the apex court.
The fundamental objection to the publication of prejudicial material in the manner Abramjee did is that he forgot that the Public Protector has a right to be heard fairly according to the evidence adequately placed before a court and on that evidence alone. That evidence can be tested in examination and cross-examination of the witnesses and is accessible to all participants in the case. Additionally, the integrity of the entire hearing is compromised if extraneous material is introduced into the process in a selective, one-sided manner to favour specific parties.
Unfortunately, the Constitutional Court has failed abysmally to manage leaks and unauthorized disclosure of information in its possession. Let us momentarily jog our collective memory. Shortly before the 2021 elections, DA federal council chair Helen Zille claimed that the ANC was tipped-off about the Constitutional Court outcomes of the Independent Electoral Commission’s (IEC) application to have the local government elections postponed. After the Constitutional Court delivered an order dismissing the IEC’s application and instructing that a voters registration weekend take place the same month. Zille tweeted: “The ANC’s withdrawal from the Electoral Court indicates that they have been tipped off that the IEC’s application to postpone the election was successful. If information is leaking from the Concourt to the ANC, it is nothing short of a Constitutional crisis.”
The Chief Justice has adopted a supine attitude on this very serious matter. The text message of Abrahmjee must be understood against the claims that Zille tweeted. The conduct of information-peddlers like Abramjee adds further fuel to the fire. It extends credence to the allegations that the judiciary is captured and acting in cahoots with certain unsavoury political characters aligned in factional political interests and grossly skewing the outcome of cases.
In this atmosphere and given Chief Justice Zondo’s obsequious and sycophant attitude towards the Executive, it is a tad too much to expect him to be assertive or to exercise strong leadership to arrest these shenanigans. The Chief Justice sees his role as that of Ramaphosa’s Chief Protector. Zondo acted with unseemly alacrity to condemn Minister Sisulu for simply exercising her free speech. The unspoken truth is that he knew Sisulu is the potential contender for the ANC presidency against President Ramaphosa. Zondo is currently moonlighting as Chief Justice and as a Commissioner appointed by the Executive to help it do a political hatchet job on the political opponents of Ramaphosa. Strangely and without any sense of shame, Zondo continues to preside over cases serving before the Court where the executive organs of the State are litigants. This does not register anywhere in thinking of South Africa as an oddity.
Lest we forget, Zondo is both a beneficiary and indirect enabler of sex discrimination perpetrated against Justice Mandisa Maya. Our constitution and laws that explicitly outlaw discrimination based on race, religion, gender, nationality, etc., must be understood to forbid overt discrimination in disparate treatment and more subtle forms, known as disparate impact discrimination, arising from the consequences of employment practices, not simply the motivation. Bluntly put, the incoming Chief Justice Zondo participated in a JSC interview where he competed against three other candidates for the Chief Justice position. The only female candidate Justice Maya, the President of the SCA, came out head above all and outperformed the group of males. Yet her leadership qualities were undermined and devalued simply because she is a female.
The incessant and unfounded attacks on Public Protector Mkhwebane are the most explicit indications that the Executive and the judiciary in toxic entanglement are all prepared to lie about women in leadership positions simply to protect male privilege. The clearest example is the lie told or acquiesced by former President Mbeki about the two Codes of Ethics he published and for which Advocate Mkhwebane has been vilified and crucified. In 2000 the Executive Ethics Code was promulgated by Presidential Proclamation R41 of 2000 in terms of Section 2(1) of the Executive Members Ethics Act. Paragraph 2.3(a) of the Code reads as follows: “Members of the Executive may not wilfully mislead the legislature to which they are accountable.”
The differences between the 2000 and the 2007 Code of Ethics are cardinal, substantial, and significant. The earlier version stated only that “Members of the Executive may not wilfully mislead the legislature to which they are accountable.” In contrast, the 2007 version added the words “may not willfully or inadvertently mislead.” around 2007, Mbeki amended the earlier Code and introduced a new Code which is Chapter 1 of the: A Handbook for Members of the Executive and Presiding Officers (7 February 2007) at pages 7-15. The current Public Protector has consistently relied on the 2007 version, which was used by her predecessor and had received a judicial imprimatur from the apex court. See the Constitutional Court’s judgment in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11. Is it not strange that the vocal and often public Thabo Mbeki has deliberately remained quiet even when Mkhwebane is falsely accused and is facing impeachment for allegedly using a Code that does not exist. The mendacious Thuli Madonsela used the same 2007 code throughout her tenure as the Public Protector – she used it in her Shiceka and Helen Zille investigations. However, she has assiduously maintained silence as her successor is viciously attacked based on lies.
When Ramaphosa realized he was in trouble for lying to Parliament, he approached the Court. He argued that the 2007 Code, which has been in use by the Public Protector, the Public Service Commission, and the very Executive he led, did not really exist. The ultimate scandal of judicial mendacity occurred in the recent judgment in Public Protector and Others v President of the Republic of South Africa and Others [2021] ZACC [19], where the Concourt agreed with Ramaphosa and stated the following about the Public Protector:
- Paragraph 57 (A perusal of the Public Protector’s report reveals that she seriously misconstrued the Code…);
- Paragraph 58 (Quite clearly, this statement shows that she thought that the Code prohibited members of the Executive from furnishing any and every piece of incorrect information, regardless of their State of mind and the objective they wished to achieve.)
- Paragraph 59 (But what is more concerning with the report is that the Public Protector changed the Code’s wording by adding “deliberate and inadvertent misleading of the Legislature .”That this is addiction is apparent from the statement quoted above. She states that the President’s reply breached paragraph 2.3(a) of the Code, “the standard of which includes deliberate and inadvertent misleading .”It is inconceivable that the sole word used in the Code “wilfully” could be read to mean “inadvertent .”These words carry mutually exclusive meanings. Wilfully cannot include inadvertent. What was done by the Public Protector here exceeded the parameters of interpretation.
- Paragraph [60] (…The Public Protector then changed the Code’s wording to include “deliberate and inadvertent misleading” to match the facts. Having effected the change in the Code, the Public Protector proceeded to conclude that the President had violated the Code. It is unacceptable that the Public Protector did what no law had authorized her to do.
What is more revealing is that the CONCOURT cannot explain its ruling in the EFF judgment where it referred to and relied on the 2007 it now pretends never existed. A woman public servant can have her leadership undermined and devalued and have her performance portrayed falsely and in the worst possible light simply because the judiciary wants to support males! That is what was attempted against Lindiwe Sisulu.
South Africa was led into what appears an orchestrated and political lull by Chief Justice Zondo, who in an interview alluded to the fact that he had instituted an investigation into the infamous Abramjee text message to Advocate Breytenbach. This singular statement was meant to appease those who rightly cried foul on the integrity of the Constitutional Court. Yet a few days later Constitutional Court presented its findings. We can now accept that the statement of an investigation on the part of the CJ was less about justice but deflection. As led by Zondo, if the Constitutional Court can tell us about an investigation and then permit the issuing of the very findings, we are in a precarious space. The brazen ambiguity on the part of the judiciary, as represented by the Constitutional Court, of how some, such as the Public Protector Advocate Mkhwebane as opposed to President Ramaphosa, are treated increasingly centralises a claim for Zondo as a political actor. Is it not strange that the release of the findings, despite its compromised status in the first presence of our discourse, registers no concern to the CR22 embedded journalists and judiciary communities. It is reasonable to have assumed that the announced investigation by Zondo should first have been dealt with since the release of findings under these circumstances confirms the knowledge Abrahmjee had on good account.
If justice for Mkhwebane was central to this Court, the findings of the Court should have been in abeyance and followed the findings of the investigation. Evidently, Mkhwebane qualifies for what is increasing evidence of a new judiciary discourse on Zuma treatment. The Zuma treatment suggests special rules that warrant anything to stand against Zuma because the dominant narrative defines him as deserving of whatever comes his way. This illogic is callous and indifferent to justice but preoccupied with continuing the media-birthed and sustained narrative of ”angels’ and ‘demons’ in the ANC. Mkhwebane thus fits the demon association tag and, therefore, must be exorcised from the SA discourse. Such injustice against Mkhwebane is justified. Regardless of her constitutional rights, even when the prejudice against her is orchestrated and glaring. Anything goes because the means justify the ends. South Africans are reminded that courts must ensure justice and must also be seen to work for that noble goal. Furthermore, one cannot but see the tentacles of patriarchy not absent in this unfair treatment of the Advocate Busi Mkhwebane. We are compelled to ask if she deserves this unfair, unjust, and brutal treatment because she is a woman?
How can South Africa be trusted in such a compromised Constitutional Court?
