By Lehlohonolo Lehana.
Public Protector Busisiwe Mkhwebane’s office has withdrawn subpoenas it issued against Constitutional Court justices over Ismail Abramjee SMS saga.
The withdrawn subpoenas were issued against Justice Jody Kollapen and Gauteng judge president Dunstan Mlambo, who is acting in the ConCourt, after the General Council of the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.
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.
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.
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.”
But the papers were withdrawn on Friday after the GCB wrote to Mkhwebane’s office and questioned whether the Public Protector had powers to investigate the judiciary.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The GCB’s letter had threatened legal action if the subpoenas were not withdrawn.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, the office of the public protector has indicated that the investigation into the SMS saga would continue.