By Zelna Jansen
The Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (hereafter, the commission) was established in February 2018 by the former president Jacob Zuma after being compelled to do so by the Pretoria High Court.
The commission is guided by the findings and recommendations made by former public protector Thuli Madonsela in her “State of Capture” report of 2016.
Thus far the commission has had 430 public hearings and heard the testimony of more than 330 witnesses. It has cost about R1 billion, and its term has been extended five times.
The commission will be approaching the Pretoria High Court for an extension of its term by a further two months. It will not require additional funding and intends to deliver its report in three stages: the end of December, January 2022, and February 2022.
The role of a commission of inquiry
Section 84(2)(f) of the Constitution gives the president the power to establish commissions of inquiry. In the President v South African Rugby Football Union (Sarfu) (2000), the Constitutional Court held that the findings and recommendations made by a commission did not bind the president.
The president is free to reject the recommendations in their entirety or select recommendations he wishes to implement.
However, in the case of the Secretary of the Judicial Commission of Inquiry into allegations of state capture, corruption and fraud in the Public Sector including Organs of State v Jacob Zuma (2021), the Constitutional Court differentiated between a commission advising the president and a commission that serves a public purpose of holding a public inquiry in respect of “a matter of public concern”.
The aim of such a public hearing is to restore public confidence in the institution in which the matter that caused the concern arose. It stated that: “Here the focus is not what the president decides to do with the findings and recommendations of a particular commission. Instead, the objective is to reveal the truth to the public pertaining to the matter that gave rise to public concern.”
“A matter of public concern” was the motivation the Constitutional Court used to order former president Jacob Zuma to answer questions to the commission. In the Sarfu case above, the court stated that an objective test must be applied to determine whether a commission of inquiry is one established by the president as a fact-finding mission, or a matter of public concern.
The legally relevant question is not whether the president thought that the subject matter of the inquiry was a matter of public concern, but whether it was objectively so at the time the decision was taken. The courts will decide in “a matter of public concern”, and not the president within his own discretion.
A public concern will be interpreted to promote the spirit, purport, and objects of the Bill of Rights and to underscore the democratic values of human dignity, equality, and freedom.
Judicial Commission of Inquiry is “a matter of public concern”
The commission was initially recommended in the former public protector’s report in 2016. The Office of the Public Protector is established by section 181 of the Constitution and reports to Parliament. The report made several recommendations, including establishing a commission of inquiry.
In 2016, several Constitutional Court applications were made by the EFF and the DA in relation to the former president failing to implement the recommendations of the report, and that the National Assembly (NA) had failed to put all appropriate mechanisms and processes in place to hold the president accountable, particularly in relation to developing rules to section 89 of the Constitution.
Section 89 provides that the NA can remove the president. There was also a Pretoria High Court order compelling the former president to establish a commission of inquiry. The commission was eventually established and in terms of its gazette Terms of Reference, it must be guided by the recommendations and findings of the Public Protector’s state capture report.
In all the above instances, the commission is, therefore, a commission of inquiry to investigate “a matter of public concern” and is a matter that “evokes public anxiety or worry and interest”.
In the above-mentioned case of the Secretary of the Judicial Commission (2021), the court incidentally remarked that in view of the nature of the allegations being investigated by the commission, there can be no doubt that it constitutes “a matter of public concern”.
It is therefore not a commission established by the president as a fact-finding mission, and therefore the president’s discretion of whether to implement some of the recommendations or not, will not carry weight.
All recommendations will have to be implemented. It is likely that many will challenge the report, as not all evidence was given. However, at the end of the day, it is the courts that will make the final decision as to whether a recommendation will be implemented or not.
* Zelna Jansen is a lawyer. She is CEO of Zelna Jansen Consultancy.
** The views expressed here may not be that of IOL.