By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights
The President has announced, albeit with the persuasion of the Gauteng Division, Pretoria High Court, (the Court) the appointment of a Commission of Inquiry (the Commission) regarding complaints and allegations raised in the erstwhile Public Protector’s State of Capture Report. This, bizarrely, despite having lodged an appeal against the Court’s order which found the State of Capture Report binding. Presumably the legal doctrine that no person can be allowed to take up two positions inconsistent with one another applies – and since he has announced the Commission before the appeal has been heard, it stands to reason that the appeal falls away. While political analysts may ponder as to the motivation behind the President’s seemingly contradictory legal positions on the matter, it is apparent however, that the Commission will go ahead.
The judge selected by the Chief Justice, in line with the Court’s directive and appointed by the President, is none other than Deputy Chief Justice Zondo. The selection of a senior judge of the highest court in the land, is perhaps an indication of the seriousness with which the Chief Justice views the need to address the grave allegations directed at South Africa’s first citizen, his family and close friends in the State of Capture Report.
The President’s announcement was not accompanied by the terms of reference, which, in accordance with the Commissions Act of 1947, the President is required to publish by way of proclamation in the Government Gazette. As such, the extent and scope of the inquiry remains unknown. The court order however, provides that “the Judge who is to head the commission of inquiry is given the power to appoint his/her own staff and to investigate all the issues using the record of the Public Protector’s investigation and the State of Capture Report, No 6 of 2016/17 as a starting point”.
Should the President be acting in terms of the court order, then it would appear that, at the very least, the inquiry’s scope will include the President’s reportedly unethical dealings involving the Gupta family. The current Public Protector has taken the position that the terms of reference of the inquiry should be widened “to ensure that no stone is left unturned in so far as the allegations of state capture are concerned, and in order to avoid any further allegations of state capture being lodged with the Office of the Public Protector.” Should this be the case, then it stands to reason that the work of the Commission would be considerably widened. This runs the real risk of delaying the investigation, while possibly prolonging the wrongdoing. There are of course other avenues through which separate allegations of state capture can be addressed – conflating all such investigations obfuscates matters – apart from diverting the immediate focus on the President’s conduct.
The Court also made an order for the Commission to be adequately resourced by the National Treasury. In seeming deference to the executive in light of the separation of powers doctrine, the Court has left it up to the National Treasury to ensure that the Commission’s work is not be hampered by inadequate funding.
The Court order appears to address a flaw in the Commissions Act by requiring the President to submit his intentions to Parliament regarding the implementation of the Commission’s final report. The flaw arises from the fact that the Commissions Act does not explicitly provide for the President to release the final report of the Commission, or to act upon its findings. This makes the Commissions Act ripe for a constitutional challenge on the basis that its provisions lack the purport and spirit of the Constitution, which places accountability, responsiveness and openness as foundational values.
Given the outcome of the long running Arms Procurement Commission, better known as the Seriti Commission, which cost reportedly R137 million to only find that “not a single iota of evidence was placed before it showing that bribes had been paid to consultants, public officials or members of Cabinet in the 1999 R90-billion Arms Deal”, there may be a degree of public skepticism regarding this latest Commission. However, it is important to consider the role that Commissions play in society. As fact finding missions of a high order, Commissions ideally enjoy a large degree of independence and autonomy. They further serve to deepen democracy through their investigative, educational and information providing functions. It is obviously vital in this instance, that the South African public be informed of the allegations of wrong doing by the head of State as well as the unethical practices of state functionaries. Ultimately, given the series of adverse legal findings against the President in the course of 2017, suffice to say, the office of the President has lost a lot of gravitas and public confidence in the office sorely needs to be restored. What better way than airing the proverbial dirty laundry before a new tenant occupies the office in 2019?
Mkhwebane’s statement welcoming President Jacob Zuma’s appointment of the commission of inquiry into state capture, followed by her subsequent media pronouncements, would have easily been dismissed as a silly attempt at a gag were these not perilous. Read Mkhwebane’s state capture statements expose a lack of appreciation of the law