An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
1. The President of the Republic of South Africa has under s 84(2)(f) of the Constitution of the Republic of South Africa, 1996 and in terms of Government Notice R926 published in Government Gazette No 34731, 4 November 2011 appointed a Commission of Inquiry into the Allegations of Fraud, Corruption, Impropriety or Irregularity in the Strategic Defence Procurement Package (“the SDPP”).
The Terms of Reference of the Commission are to inquire into, make findings, report on and make recommendations concerning the following, taking into consideration the Constitution and relevant legislation, policies and guidelines:
1.1 The rationale for the SDPP.
1.2 Whether the arms and equipment acquired in terms of the SDPP are underutilised or not utilised at all.
1.3 Whether job opportunities anticipated to flow from the SDPP have materialised at all and:
1.3.1 if they have, the extent to which they have materialised; and
1.3.2 if they have not, the steps that ought to be taken to realise them.
1.4 Whether off-sets anticipated to flow from the SDPP have materialized at all and:
1.4.1 if they have, the extent to which they have materialised; and
1.4.2 if they have not, the steps that ought to be taken to realise them.
1.5 Whether any person/s, within and/or outside the Government of South Africa, improperly influenced the award or conclusion of any of the contracts awarded and concluded in the SDPP procurement process and, if so:
1.5.1 Whether legal proceedings should be instituted against such persons, and the nature of such legal proceedings; and
1.5.2 Whether, in particular, there is any basis to pursue such persons for the recovery of any losses that the State might have suffered as a result of heir conduct.
1.6 Whether any contract concluded pursuant to the SDPP process is tainted by any fraud or corruption capable of proof, such as to justify its cancellation, and the ramifications of such cancellation.
2. The Commission is to report to the President within a period of two years from date of proclamation.
Written submissions can be made to the Commission by way of an affidavit by no later than 30 July 2012.
Enquiries may be directed to: The Chairperson, Arms Procurement Commission at firstname.lastname@example.org . Telephone numbers to be provided at a later stage.