Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
3 July 2018

Attacks on SARS Commission have no legal basis, must be politically motivated

From a legal perspective, the attempts by former SARS Commissioner Tom Moyane and his legal representative Dali Mpofu to paint the SARS Commission of Inquiry as “grossly unfair” to Moyane, and the demand that the Commission cease its work, are rather odd as the arguments have no valid legal basis and are based on false claims. But – while unethical – it may make sense from a political perspective to try and create an impression in the minds of ordinary people (and governing party leaders) not knowledgeable about the law, that the Commission is biased against Moyane.

A Commission of Inquiry is not a court of law. Neither is it a tribunal that can make binding findings against any individual. In terms of our law, the President has the power to appoint a Commission of Inquiry on any topic of public importance and to decide on its terms of reference.

The Commission then gathers evidence in an inquisitorial manner, which means it gathers information on its own steam, and also invites interested individuals to make submissions to it. Anyone can approach the Commission with information, so it would be absurd for any person to argue that he or she was not given the opportunity to present his or her perspective on the range of issues being investigated.

Ideally the aim is to get as much information as possible to assist the Commission to write a thorough report that will assist the President to make informed policy decisions on the issue investigated. The findings and recommendations are not binding. The President, at his or her discretion, can do with the findings and recommendations as he or she sees fit.

At its best, a Commission of Inquiry is a process aimed at assisting the President and his or her government to make informed policy decisions about a specific matter, assisted by the well informed and knowledgeable findings and recommendations of the Commission. A Commission of Inquiry is a policy enhancing tool. The President has a wide discretion on who to appoint to serve on the Commission. Because a Commission of Inquiry is policy oriented, it makes no legal sense to argue that a Commission of Enquiry is grossly unfair to a particular individual.

While its findings and recommendations can be reviewed and set aside by a court of law if these are irrational, it is a legal nonsense to attack the Commission because it allegedly favours a certain policy perspective. It is the President’s prerogative to appoint people whose views he or she trust to assist him or her to make policy decisions.

Moreover, the President appoints the Commission of Inquiry and the Commission has the legal duty to do its job in accordance with the terms of reference provided by the President. Only the President can change its terms of reference, withdraw its mandate, or change any of the personnel serving on it.

To ask the Commission to cease its activities and for one of its participants to recuse himself (as advocate Dali Mpofu did last week) therefore makes no legal sense as the Commission does not have the power to do any of these things. It is like someone approaching me and demanding that I score the winning goal in the Soccer World Cup final. It is sadly not something I am entitled to do or will ever be able to do.

This process is very different from the accusatorial process followed in court and tribunal proceedings where different parties present evidence in an accusatorial process. In court proceedings accusations are made by one party against another and the person being accused then gets the opportunity to try and rebut those accusations. In such proceedings the court or tribunal will make a finding against one or more of the parties who were part of the accusatorial process.

In this regard, the SARS Commission is no different from the many other Commissions appointed over the years. As the chairperson of the Commission made clear, at the outset he invited all interested parties to make submissions to the Commission. The Commission then looks at the written submissions and if it so wishes (but there is no duty to do so) it can call some of those who made submissions to give oral evidence to the Commission.

Mr Moyane (or anyone who supports him – whether they worked at SARS or not) therefore has an open invitation to make submissions to the Commission. The chairperson of the Commission has also stated that if Mr Moyane requested to give oral evidence, this will be arranged. For some inexplicable reason Mr Moyane has refused to do so.

In other words, given the opportunity to provide his perspective on the matters being investigated by the Commission, Mr Moyane declined, instead falsely arguing that the Commission was grossly unfair (partly because he was not given the opportunity to give his perspective) and demanding the impossible – namelv that the Commission stop doing what the President has instructed it to do, an instruction the Commission has a legal duty to comply with.

In the absence of any other reasonable explanation, it will be difficult not to conclude that Mr Moyane is not keen to provide his perspective on the issues being considered by the Commission. Mr Moyane’s lawyer advanced a reason of sorts for this reluctance to provide the Commission with his perspective, namely that he is facing a disciplinary tribunal and that the Commission amounts to him being subjected to “double jeopardy”.

Legally, this is an odd claim. “Double jeopardy” is a procedural defence that prevents an accused person from being tried again on the same (or similar) charges and on the same facts, following a valid acquittal or conviction. A Commission of Inquiry can never subject any person to “double jeopardy” as it is a policy enhancing inquisitorial process and not an accusatorial “trial” that can make binding findings on the guilt or innocence of any individual. As the Commission is not a criminal trial (nor a disciplinary tribunal), the principle of double jeopardy does not apply.

Furthermore, to claim, as Dali Mpofu did last week, that Mr Moyane was not given an opportunity to make submissions to the Commission is therefore false. Why advocate Mpofu would make this claim when he must know that it is not true, is not immediately clear.

From the above it must be clear that from a legal and factual perspective the claims advanced on behalf of Mr Moyane by advocate Mpofu regarding the Commission makes little sense. (It is also unethical for an advocate knowingly to make false submissions on behalf of his or her client.)

But perhaps there is a political reason for this strategy. While Mr Moyane and his lawyers must know that they have no legal leg to stand on, their aim might be political and not legal.

The reason for this may lie in the very fact that Commissions of Inquiry are appointed by the President and are supposed to be policy enhancing tools to assist the executive to do its job properly. But as we all know, Commissions are pliable and serve the interests of the President who appoints them. They often do not only serve a policy enhancing purpose, but also a more overt political purpose.

Presidents often appoint Commissions of Inquiry not only (or even not primarily) to assist them to make good policy decisions. Presidents also sometimes appoint Commissions of Inquiry to manage a difficult political situation.

Sometimes the President appoints a Commission of Inquiry because he or she wants to be seen to do something about an issue which has led to a public outcry, but he or she does not really want to do anything about it.

That is why President Zuma appointed the Marikana Commission and the Arms Deal Commission. He knew that he could decide on the terms of reference, he could choose the personnel, and in the event of the Commission making findings or recommendations that he did not like, he could ignore these – all while the public was given the impression that something was being done.

In other cases, a President may need political cover to make decisions that would be difficult to sell to his or her own party or to the public. I suspect this is why President Cyril Ramaphosa appointed the SARS Commission. Perhaps he wanted to take action against those who captured SARS, but he knew that this was not universally supported within the leadership of his own party.

If this is correct, the rather ham-handed attempts (from a legal perspective at least) to discredit the SARS Commission makes perfect sense. Those who have lots to fear if SARS is rejuvenated (or who gets financial support for themselves or for their political parties from people who have lots to fear from a robust SARS) would obviously wish to discredit the SARS Commission to make it politically more difficult for the President to act on its recommendations, assuming that those recommendations – if acted on – will enhance the ability of SARS to go after large corporate interests and wealthy politically connected individuals.

If the public (or at least some gullible leaders within the governing party) could be convinced that the SARS Commission was somehow unfair or tainted in any way, the President would find it more difficult to use whatever findings the Commission produce, to make sweeping changes to SARS.

It is for this reason that I would not be surprised if the legally unsustainable claims made against the Commission are not being made to achieve a legal end, but rather to achieve a political end. It would be interesting to see how many people fall for this ruse.

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