Pierre de Vos, Constitutionally Speaking
24 January 2018
Early in January, on the eve of the first meeting of the new National Executive Committee (NEC) of the governing African National Congress (ANC), President Jacob Zuma announced that he would appoint a commission of inquiry into state capture. At the time of writing two weeks later, no commission has been legally appointed yet. But if we assume that a commission will be appointed shortly, it remains to be seen whether the announced commission will ever achieve what many members of the public hope it would achieve. Here is why.
1. There is at least a possibility that the appointment of the commission will be delayed or declared invalid.
After the former Public Protector instructed the President to appoint a commission of inquiry into state capture and directed that the commission should be headed by a person nominated by the Chief Justice, President Jacob Zuma approached the High Court to have this remedial action reviewed and set aside. President Zuma lost that case, but if he appeals, it is not inconceivable that he might win that appeal (just as it is not inconceivable that he might lose).
Those implicated in state capture may also challenge the legality of the commission on the same grounds and may ask a court to nullify the appointment of the commission. Even if they are not successful, it could delay the work of the commission with a year or two.
As I noted before, there is Constitutional Court precedent in favour of the President. In President of the Republic of South Africa and Others v South African Rugby Football Union (SARFU) and Others the Court held that the President is not permitted to abdicate his powers to appoint a commission of inquiry in terms of section 84(2)(f) of the Constitution.
Abdication can occur in three different ways: when an office-bearer unlawfully delegates a power conferred upon him or her; when an office-bearer acts under dictation; and when an office-bearer “passes the buck”. The Constitutional Court therefore concluded that:
It is clear also that section 84(2)(f) of the Constitution confers the power to appoint commissions of inquiry upon the President alone. The Commissions Act also confers the power to declare its provisions applicable to a commission of inquiry upon the President alone.
The President will abdicate his powers to appoint a commission if he follows the instructions of the Public Protector. The High Court argued that the state capture case was unique and that this Constitutional Court precedent did not apply. While a court on appeal might agree with this, it is at the very least possible that it would disagree and would find that the appointment of the commission and the manner of its appointment was done under dictation (and incidence of abdication) and that it was therefore invalid.
There is a second possible problem with the legality of the commission. The commission, so we are told, will be headed by Deputy Chief Justice Ray Zondo (not by a retired judge as is usually the case). While there is no legal rule that a sitting judge is prohibited from chairing a commission of inquiry, the Constitutional Court suggested in South African Association of Personal Injury Lawyers v Heath and Others that it might be impermissible for a judge to head certain commissions of inquiry. Justice Chaskalson wrote in that judgment:
In dealing with the question of judges presiding over commissions of inquiry… much may depend on the subject matter of the commission…. In appropriate circumstances, judicial officers can no doubt preside over commissions of inquiry without infringing the separation of powers contemplated by our Constitution. The performance of such functions ordinarily calls for the qualities and skills required for the performance of judicial functions – independence, the weighing up of information, the forming of an opinion based on information, and the giving of a decision on the basis of a consideration of relevant information…. [However] certain functions are so far removed from the judicial function, that to permit judges to perform them would blur the separation that must be maintained between the judiciary and other branches of government.
Those implicated in state capture might invoke this passage to argue that state capture is such a politically contentious issue that it would breach the separation of powers for a judge – especially a sitting judge – to head a commission of inquiry into state capture.
If they do, they will no doubt refer to the controversy (fanned by defenders of state capture) about the terms of reference of the commission. Should it only investigate the matters raised by the Public Protector or should it also investigate the kinds of matters that the paid Gupta bots wish it to investigate? They might argue that the commission is too political and that a sitting judge should not chair it as this would be in breach of the separation of powers doctrine as indicated by the Constitutional Court.
Whether either of these arguments would succeed is difficult to predict. But I would not be surprised if those implicated in state capture turn to the courts and invite them to nullify the appointment of the commission, postponing the commencement of its work with many months or even years.
2. There is a possibility that the commission will not uncover the whole truth.
Commissions of inquiry in South Africa do not have a stellar track record of uncovering the truth. In 1992 apartheid State President FW de Klerk appointed the Harms Commission to determine whether a police hit squad was operating in South Africa. The commission turned into a farce with hit squad members coming to testify wearing wigs and false moustaches. Harms concluded that no hit squad operated in South Africa, a conclusion that turned out to be laughably false.
More recently, the Marikana Commission investigated the massacre of miners at Marikana, and while the commission uncovered some shocking facts, it did not make any definitive findings about the role of the Police Commissioner, the Minister of Police or various Lonmin officials and Board members like Cyril Ramaphosa.
There are several reasons why commissions seldom uncover the whole truth. First the terms of reference are decided on (and can be manipulated by) the President, who can also, at any time, amend the terms of reference to “guide” the investigation away from unwanted conclusions towards the conclusions needed by the executive. It is for this reason that commissions of inquiry seldom uncover facts that the President would not like uncovered.
More often than not, they provide political cover for a President who wishes to be seen to do something about a matter of grave concern to the public, without having to do anything decisive about it. Commissions buy time for the executive while giving the impression that the executive is urgently dealing with a problem.
Second, the person who heads up a commission and/or the staff appointed to assist him or her might lack the requisite skills, inquisitiveness, or scepticism to get to the bottom of a matter. In any event, judges are not trained investigators – they are adjudicators of facts, not finders of facts. They rely on others to investigate matters and then assess the facts. So even if a judge is scrupulously honest and impartial, that judge may not actually uncover the truth, or not the whole truth at least.
Third, a commission of inquiry should ideally function in an inquisitorial manner. The aim should be to try and find out what happened and who did what unencumbered by the technical legal rules that bog down the accusatorial system. This requires a less adversarial and legally formalistic approach to investigating the matter, less involvement of lawyers who represent those implicated, less reliance of cross examination and more reliance on following the evidence and uncovering wrongdoing.
But judges as well as lawyers who work for a commission are trained in the accusatorial approach associated with criminal trials in South Africa. This approach is said to be fair, but it is not efficient and it does not always uncover the truth.
Lastly, a commission might not be given the time or the resources to do its job properly. (And the more accusatorial the approach, the longer the matter will drag on.) Those implicated might run to the courts to delay its work and the President might amend its terms of reference half way through, thus making it impossible for the commission to do its job properly.
3. The findings of a commission have no legal standing and do not automatically lead to criminal prosecution or other consequences.
A commission of inquiry is appointed to make factual findings and to advise the President and other state institutions on what actions to take to deal with problems identified by the commission. But it does not have the power to order anyone or any institution to take any specific action.
So, if we assume for the moment that the commission of inquiry into state capture uncovers sufficient evidence of criminal wrongdoing, and recommends to the Hawks and the National Prosecuting Authority (NPA) that it should initiate the prosecution of at least the Guptas, Minister Zwane, Tom Moyane, Duduzane Zuma, and some Eskom officials (and, who knows what the terms of reference might be, the odd Markus Jooste), this will remain a recommendation – nothing more. Neither the Hawks nor the NPA would be bound by such a recommendation. (Recall that no police officer has been successfully prosecuted yet for their involvement in the Marikana massacre.)
The commission itself has no power to sanction any person found implicated in criminal activity or other wrongdoing. It can make findings in this regard and can also recommend action to be taken by the President (say to fire a cabinet Minister) or by the NPA (say to prosecute an individual), but these will remain non-binding recommendations.
It is for this reason that I wonder whether the appointment of a commission investigating state capture is necessary at all. There are mountains of evidence (include all the evidence contained in the Guptaleaks and the evidence contained in the former Public Protectors Report) that could form the basis of proper criminal investigations.
On the face of it, it should not be too difficult for the Hawks to use the available evidence as a starting point for a more thorough investigation that might very well lead to the arrest and prosecution of various individuals guilty of money laundering, fraud, theft, and corruption.
4. But why a commission of inquiry?
Why then have so many people pinned their hopes on a commission of inquiry on state capture?
It might be that some punch drunk South Africans have become fixated on a commission of inquiry because the former Public Protector ordered the establishment of such a commission (at a time before the Guptaleaks when less information about state capture was publically available). As the former Public Protector was seen as one of the few people in authority to take state capture seriously, some people have come to believe that a commission is the only way to lance the boil of state capture.
It might also be that most reasonably informed South Africa for a considerable time have had little trust in either the Hawks or the NPA. There is little belief that these bodies would investigate and prosecute criminal activity associated with state capture without fear or favour (and rightly so).
But the question to be asked is this: would it not be better rather to fix the Hawks and the NPA, to restore their credibility and their ability to actually do their respective jobs, instead of investing millions of Rand on a commission of inquiry that might only tell us what most of us (who are not paid by the state capturers) already know?