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Mkhwebane SMS saga – our courts on dangerous ground if security of their information is compromised

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

Confidentiality of the in-camera deliberations of judges is fundamental to the courts’ tradition of secrecy. The SMS must be seen for what it is: a scandalous leak.

Imagine you are a judge in a serious case about crimes against the state, such as terrorism and sedition. The case is acutely complex and has far-reaching national ramifications. Let us say that the proceedings were at the sentencing stage after the accused person pleaded guilty to all charges.

The prosecution approaches the bench and whispers in your ear that they overheard a journalist or someone in the courtroom gallery saying that rumours are that the state president will announce a decision tomorrow to pardon the accused before you.

Gripped with concern not to hand down a decision that will contradict the supposed announcement of the president, you bring the proceedings to an abrupt end indefinitely only to be told that there is no such intended announcement by the president. How independent do you think you are as a judge?

The above hypothetical story is no exaggeration nor is it intended to spread a fake story about the judiciary. It is common cause that it happened in the Pretoria High Court when the case of Public Protector Busisiwe Mkhwebane had to be postponed following an SMS that was sent to Andrew Breitenbach, a member of the legal counsel for Parliament, by Ismail Abramjee that he “had it on very good authority” that Mkhwebane’s rescission case was going to be dismissed by the Constitutional Court.

I am still perplexed why Abramjee, described as a legal analyst and consultant, should influence the continuation of the proceedings of the court in this manner.

There are three fundamental problems with this saga: first, it creates a doubt as to whether the Constitutional Court is staffed with disloyal people or infiltrated by individuals preoccupied with destroying its credibility and integrity. Second, what crime has been committed against the administration of justice, and if any, what is the Office of the Chief Justice going to do about it? Third, should the Pretoria High Court judge have stopped the proceedings based on a rumour?

It has been reported that Mkhwebane “has pressed criminal charges against the sender, Ismail Abramjee, and the justices of the Constitutional Court, and sent a scalding letter to Chief Justice Raymond Zondo, demanding to know the scope and terms of the investigation into the text message.”

In the interests of objectivity, I would not dismiss the charges laid by Mkhwebane – at least against the sender – as just a mere sideshow and a distraction from her legal woes, and as a desperate act to stall the impeachment proceedings. The principle to be extracted from her charges must be a concern about the integrity of Constitutional Court proceedings, including guarantees of confidentiality and secrecy of some processes.

At least Zondo did indicate that the Constitutional Court was investigating the alleged SMS that suggested that the court had ruled on Mkhwebane’s bid to reverse its impeachment process judgment against her by the time she was before the high court. And Mkhwebane is said to have welcomed Zondo’s statement.

Confidentiality of the in-camera deliberations of judges is fundamental to the courts’ tradition of secrecy. The SMS must be seen for what it is: a scandalous leak in one of the country’s highest-profile cases yet to have been handled by the highest court in the land, and possibly the highest test in the history of the democratic judiciary.

The US Supreme Court is currently facing almost the same challenge relating to the case on abortion rights, which brought to question the court’s oldest and groundbreaking ruling of Roe v Wade of 1973, which guaranteed federal constitutional protections of abortion rights.

A full 98-page initial draft majority opinion by Justice Samuel A Alito Jr overturning Roe v Wade in the case of Dobbs v Jackson Women’s Health Organization was leaked to the media before the judgment was officially made, creating havoc within legal circles and also among both pro-abortion and anti-abortion groups.

As opined by solicitor James D Robenalt in the Washington Post, “the national parlour game of whodunnit over the identity of potential leakers who gave Alito’s draft opinion to Politico has led to wild speculation”. There have also been reports of possible violence over the abortion draft leak.

The point here is that our courts are teetering on dangerous ground if the security of their information is compromised, and every Tom, Dick and Harry can circulate information of possible court outcomes without being authorised to do so.

In the Breitenbach SMS “scandal”, speculation abounds: who tipped off Breitenbach/Abramjee? Or who is the informant? Who shared the Constitutional Court’s insider information? This should never be allowed to happen in the echelons of our judiciary.

Anybody will be forgiven for raising serious questions including whether or not we have disloyal clerks in the courts, specifically clerks of the judges, and whether we have judges on the Bench who do not serve the judiciary with the required and heightened scrupulous regard for the courts’ moral demands.

Read in Daily Maverick: “Public Protector impeachment inquiry to go ahead, never mind Mkhwebane’s renewed rescission bid

The SMS saga should be condemned for fuelling the perception that the judiciary is corrupt and captured to be weaponised to attack political opponents of litigants. The story keeps alive the perception that the South African judiciary is corrupt and captured.

In my view, the Pretoria High Court blundered and did not do the judiciary’s image a favour if the SMS was dealt with in the way it was widely reported in the media. The prudence of the court in stopping the proceedings may seem at first blush somewhat radical. However, it is not unreasonable when we consider that allegations around the independence of the judiciary and allegations of judicial capture are commonplace.

The common understanding is that judges should not be influenced by legally irrelevant circumstances in their legal decision-making. Society is generally made to believe that judges do manage legally irrelevant circumstances well, and judges believe it too. The reported SMS and content therein were legally irrelevant to the case before the high court. One thus cannot fathom why the court acted in the way it did.

The danger of what happened is that it perpetuates the belief that South African judicial officers are not capable of ignoring irrelevant information and that they are less objective and impartial in their decision-making. If things continue on this trajectory the story being told about the judiciary may develop to be true.

Law studies and the law itself will tell you that irrelevant evidence is inadmissible in court. And as such, the judges will throw out irrelevant evidence and not allow it to influence the decision-making process.

There is a common caricature of realism that justice is “what the judge ate for breakfast”. Part of the breakfast, as we have seen in the Pretoria High Court, is serving the judge information or possibly insider information about closed-room deliberations of another court that was never sanctioned for publication. One wonders if there were political and social factors known to the judge in the early morning of the cases that influenced his decision to abandon the cases at the sight of an SMS from a person outside the court.

Nothing concludes this opinion better than what was said by then associate justice of the Supreme Court of the US, Felix Frankfurter, in 1955, in the University of Pennsylvania Law Journal: “It is time that this false charge against Roberts be dissipated by a recording of the indisputable facts. Disclosure of Court happenings not made public by the Court itself, in its opinions and orders, presents a ticklish problem. The secrecy that envelops the Court’s work is not due to love of secrecy or want of responsible regard for the claims of a democratic society to know how it is governed. That the Supreme Court should not be amenable to the forces of publicity to which the Executive… are subjected is essential to the effective functioning of the Court.”

Chief Justice Raymond Zondo must crack the whip fast otherwise his legacy as the leader of the judiciary will be tainted by those who care little about the legitimacy and integrity of the courts. DM

 

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  • The difference between the SA and the US leak sagas is that over there the issue was the content of the leaked judgement not so much the leaking. In SA the concern is wrongly about the possible leak which is a side show and of course the court was wrong to suspend the process and for once Parliament is right in treating it as irrelevent. In any case it was obvious to a 10 year old that the ConCourt was going to reject the nonsensical application. You didn’t need a leak or a “legal analyst” to work that out.

  • Surely “legal analyst and consultant” in this situation nothing but a misnomer – to put it politely! Surely a charge against the person who sent message is legitimate as would be a court ordered investigation into who sent it to the person. Surely by now (even a tech-dof moron like me) know that that any form of electronic communications can be ‘traced’ . Maybe I am too naive.

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