Mkhwebane’s office has decided to withdraw subpoenas it had issued against Justice Jody Kollapen and Gauteng judge president Dunstan Mlambo, who is acting in the ConCourt, after the General Council of the Bar of South Africa (GCB) threatened to go the legal route, Sunday Times has reported.
The subpoenas required the judges to submit affidavits in an investigation into an SMS sent last month by legal consultant Ismail Abramjee.
Abramjee claimed in a leaked SMS sent to Parliament’s attorney, advocate Andrew Breitenbach, that he had had it “on good authority” that the ConCourt had decided to dismiss Mkhwebane’s rescission application.
He also stated in the message that the judgment would be delivered on 29 April, but the ruling only came a week later on 6 May.
Busisiwe Mkhwebane had approached the ConCourt with the application, seeking an order for the apex court to reverse its February ruling.
While Mkhwebane has since opened a criminal case against Abramjee, she has also filed another rescission application, in a bid to reverse the 6 May ruling.
The Public Protector’s office as well as the judiciary are investigating the alleged ConCourt leak.
According to Sunday Times, Mkhwebane’s office issued the subpoenas after it emerged that Mlambo and Kollapen had both attended an event hosted Pretoria Legacy Foundation, which Abramjee is the spokesperson, in March this year.
The event was held to celebrate Kollapen’s appointment to the ConCourt.
In the subpoenas sent out on 17 May, both judges were asked to state under oath whether they had communicated or made contact with Abramjee and whether they had “any other information which may be necessary to assist the office of the Public Protector to expedite and finalise this investigation”, News24 reported.
But the papers were withdrawn on Friday after the GCB wrote to Mkhwebane’s office and questioned whether the Public Protector had powers to investigate the judiciary.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 said in a letter.
The GCB’s letter had threatened legal action if the subpoenas were not withdrawn.
Despite the withdrawal of the subpoenas, Busisiwe Mkhwebane’s spokesperson Oupa Segalwe has indicated that the investigation into the SMS saga would continue.
“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,” he said, adding that the “GCB should stay out of and play no role in this matter”.
Segalwe also confirmed that the Public Protector’s lawyers, Seanego Attorneys, had sent a letter to the GCB in relation to this issue on Friday, when her office withdrew the subpoenas against Kollapen and Mlambo.
“The Public Protector has complied with the agreed deadline of May 26 and the president will now give due consideration to the submission,” the Presidency said in a statement on Friday.
National Assembly Speaker Nosiviwe Mapisa-Nqakula informed the president in the letter – dated 10 March – that Parliament’s Ad Hoc Committee on the Section 194 Inquiry would proceed with Mkhwebane’s impeachment.
The Public Protector’s interdict application – which seeks to stop her suspension and the impeachment process – was heard by the Western Cape High Court last Wednesday, with the full bench reserving its judgment.
During the court proceedings, Mkhwebane’s lawyer, advocate Dali Mpofu, labeled Abramjee’s SMS as “the biggest scandal to ever hit our courts”.
Mpofu also suggested that the leaked SMS was meant to influence the judges of the Western Cape High Court and “advantage one party over the other”.