Are you saying Chief Justice Zondo is lying? - judge seeks clarity from Mpofu in Public Protector case

Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
Jan Gerber, News24
  • Public Protector Busisiwe Mkhwebane's advocate, Dali Mpofu, SC, said an SMS purporting to have information on her rescission application was the "biggest scandal to ever hit our courts".
  • Judge Nathan Erasmus asked whether he meant Chief Justice Raymond Zondo was lying when he gave different answers on whether the rescission decision had been made.
  • Mpofu said it was as "clear as mud" and the Public Protector sought clarity.

A Western Cape High Court judge asked Public Protector Busisiwe Mkhwebane's lawyer whether she was alleging that Chief Justice Raymond Zondo lied.

The court is hearing Mkhwebane's application for an interdict to prohibit Parliament's Section 194 Committee from continuing with her impeachment proceedings and to prevent President Cyril Ramaphosa from suspending her.

This comes after the committee decided to forge ahead, despite Mkhwebane's initial application to the Constitutional Court for a rescission of its decision, which effectively gave Parliament the green light to continue.

The matter was suspended on 26 April after it emerged that self-described legal analyst Ismail Abramjee sent an SMS to Parliament's counsel, advocate Andrew Breitenbach, SC.

It read:

Hello Adv Breytenbach (sic). Re: The Public Protector case tomorrow. I have it on very good authority that the ConCourt has declined to hear the Public Protector's rescission application. The decision will be made known sometime this coming week but not later than Friday. I thought I'd just share this with you on a strictly confidential basis. Thanks.

READ | Public Protector's SMS investigation: 'Misrepresentation' or 'lapse in communication'?

On Wednesday, Mkhwebane's advocate, Dali Mpofu, SC, described the SMS as "the biggest scandal to ever hit our courts".

As it turned out, the Constitutional Court announced that it would not hear Mkhwebane's rescission application a week later than Abramjee predicted.

Mkhwebane has since applied for the initial rescission decision to be rescinded.

Mpofu argued:

The mere fact that the judgment is delated by a week, cannot by any stretch of the imagination be read to mean that what Mr Abramjee was saying was not going to happen on the 29th if it had not been outed. So let's just stop there.

He said Zondo gave an interview to the SABC on 28 April.

"He said he was asked three times: 'Has the decision been made?' He gave three different answers."

Mpofu said the first time after the question was asked, Zondo said the matter was pending and the Constitutional Court would announce the decision when ready.

"Let's pause there, he doesn't say decision isn't made," Mpofu said.

The second time, Zondo said the Constitutional Court would announce when a decision is taken.

Judge Nathan Erasmus said Mpofu was, by implication, saying Zondo was lying.

"No. No, no, no, no," Mpofu responded.

"How else must I read it?" Erasmus said.

Mpofu said: 

Well I don't know [Judge] Erasmus.

READ | Mkhwebane turns on Zondo in another bid to block MPs pressing on with impeachment

Mpofu added that Zondo didn't give a "clear and unambiguous answer" and that Mkhwebane, owing to her confusion, instructed her attorneys to write a letter to the Constitutional Court to gain clarity.

"This is as clear as mud," Mpofu said.

He said the letter Mkhwebane's attorneys sent was a "nice letter".

He added that the answer they got was that the court didn't want to engage. This came on the same day as the court's rescission decision.

"It's not a fighting letter."

"What should concern you is a situation where there is a possibly - I wouldn't put it higher than that - there is a possibility that someone on the Constitutional Court leaked a judgment to influence you - this court."

The matter will continue on Wednesday afternoon and Thursday has also been set aside for it.

Erasmus is hearing the matter with Judges Mokgoatji Dolamo and Derek Wille.

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