Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
17 July 2019

Jacob Zuma: State Capture Commission rules allow witness to be examined to assess truthfulness of his evidence

Former President Jacob Zuma and his lawyers have taken issue with the manner in which he is being treated by the State Capture Commission. They argue that it was unfair that he was not provided with the questions he would have to answer, and complain that he was being treated differently than the witnesses who implicated him and that he is unfairly being subjected to “cross-examination”. It is also alleged that he has not been given adequate opportunity to challenge the testimony of other witnesses. To assess the accuracy of these claims, it is necessary to look into what the Rules and Regulations of the State Capture Commission says about the treatment of implicated individuals.

As the State Capture Commission’s lawyers have stated on various occasions, a Commission of Inquiry is not a court of law. It does not have the power to prosecute or convict any person – that power belongs to the National Prosecuting Authority (NPA). The procedural rules that apply in criminal cases are also not applicable, and witnesses or implicated people do not enjoy the same procedural rights as an accused person in a criminal trial does.

Instead, the Commission follows an inquisitorial process. An inquisitorial process is a legal process where the “adjudicator” (in this case Commission) is actively involved in proof taking by investigating the facts of the case. It is opposed to an adversarial system where the role of the “adjudicator” is primarily that of an impartial referee between the prosecution and the defence.

The task of the Commission is therefore to gather as much relevant information about state capture (and the involvement of individuals in state capture) as possible and to get as close to the truth as it can. The rules of the Commission grant wide powers to the Commission to help it to achieve this task, unfettered by the normal procedural rules on the admission of evidence that applies to civil or criminal court proceedings. Thus, rule 6.1 states that:

The Commission may receive any evidence that is relevant to its mandate, including evidence that might otherwise be inadmissible in a court of law. The rules of evidence applicable in a court of law need not be strictly applied to the determination of the admissibility of evidence before the Commission.

The Commission is not a passive institution that sits back and waits for witnesses to come to it. It is empowered to go out and to actively gather evidence from any source. The Chairperson therefore has the power (in terms of regulation 10.6) to order:

any person to submit an affidavit or affirmed declaration or to appear before the Commission to give evidence or to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated, and may examine such person.

It is clear from this section that the Commission has a right to examine a witness to try and establish whether the witness is being truthful. While this regulation makes clear that both non-implicated and implicated witnesses can be examined, rule 3.2 is more ambiguous. This section states that:

A member of the Commission’s Legal Team may put questions to a witness whose evidence is presented to the Commission by the Commission’s Legal Team including questions aimed at assisting the Commission in assessing the truthfulness of the evidence of a witness. Subject to the directions of the Chairperson, the Commission’s Legal Team may ask leading questions.

In terms of this rule, asking questions to try and determine whether the witness was being truthful, is therefore permitted and perfectly fair.

If the evidence leaders failed adequately to probe a witness to help the Commission to assess the truthfulness of the statements made by that witness, they would be acting unfairly. This is because a failure to probe a witness might rob the witness of the opportunity to clarify misunderstandings or to refute evidence made by other witnesses. It may conversely be unfair to other witnesses who may have been pushed more vigorously about statements that seemed implausible and may have forced them to reveal something they wished to hide.
In any event, regulation 8(3) allows any witness appearing before the Commission to be cross-examined, but “only if the Chairperson permits such cross-examination should he deem it necessary and in the best interest of the function of the Commission”.

Whether one calls this cross-examination (as Mr Zuma’s lawyers do), or (as the rules and regulations do) examination with the aim of assessing the truthfulness of the evidence, is not really the point. The point is that the rules and regulations permit evidence leaders to probe the witness. Of course, they are more likely to do so where doubt arises about the truthfulness of the evidence being given by the witness.

On the other hand, Mr Zuma’s lawyers are correct to point out that Mr Zuma is being treated differently from non-implicated witnesses. As part of its inquisitorial process, the evidence leaders met with many of those witnesses to gather evidence which would then be led at the Commission. Mr Zuma’s lawyers are in effect arguing that he should have been treated like any other witness who came forward to provide evidence of state capture to the Commission.

Unfortunately, the rules and regulations are silent about whether implicated witnesses should be treated in an identical manner than non-implicated witnesses. What happens if evidence leaders conclude that the implicated witness is not likely to assist the Commission by providing it with credible evidence? Should they still treat the implicated witness as if he or she will provide such evidence? Reasonable people may disagree on this, but what is clear is that nothing in the rules or regulations require implicated witnesses to be treated identically than no-implicated witnesses.

This does not mean that the rules do not contain special provisions to protect implicated witnesses. Rule 3.3 requires the Commission to notify an implicated person within a reasonable time before the witness gives evidence if testimony will implicate him or her and how it might implicate him or her. The implicated person is also entitled to receive the witness statement that implicated him or her. As far as I am aware (I have not watched the testimony in full) Mr Zuma’s lawyers have not raised this issue during his testimony this week, but if notice were not given that would, of course, amount to unfair treatment.

Once somebody is told that he or she is implicated (as Mr Zuma was told) the rules allow the implicated person to apply to give evidence him or herself; to call any witness to give evidence on his or her behalf; or to cross-examine the witness that implicated him or her.

Such an application must be accompanied by a statement from the implicated person responding to the witness’s statement in so far as it implicates him or her. The statement must make it clear what parts of the witness’s statement are disputed or denied and the grounds upon which those parts are disputed or denied. It was this requirement that tripped up Mr Tom Moyane and his lawyer, as they forgot to indicate which aspects of the evidence was being disputed

There is no right for an implicated person or his or her lawyers to cross-examine the witnesses who implicated him or her and the Chairperson has the discretion to allow cross-examination or not. Neither is there a right for an implicated person or any other witness to be provided with all the questions he or she would be asked beforehand. As noted above, this would in any case be incompatible with regulation 10.6 that allows evidence leaders to examine a witness to try and establish whether they are being truthful or not.

Mr Zuma and his lawyers have not made use of these provisions, have not applied to testify or to cross examine any witnesses. This is not surprising as Mr Zuma can hardly be expected to challenge the evidence of witnesses who implicated him, if his memory has deteriorated to the extent that he is unable to remember much of what happened during his term as President.
While former President Zuma did not utilise them, it is clear that the rules provide for the President to give his side of the story to try and refute every single claim made by other witnesses who implicated him. A claim that Zuma has not been given an adequate opportunity to respond to allegations against him (and even to confront every single person who implicated him through cross examination by his lawyers) would therefore not be accurate.

Like any other witness, former President Zuma does not have the right to refuse answering a question as regulation 8(1) states that no “person appearing before the Commission may refuse to answer any question on any grounds” other than on the ground that the information being sought was legally privileged. However, regulation 8(2) (as amended) provides some protection for a witness who incriminates him or herself while testifying. It reads:

A self-incriminating answer or a statement given by a witness before the Commission shall not be admissible as evidence against that person in criminal proceedings brought against that person instituted in a court except in criminal proceedings where the person concerned is charged with [perjury].

When one compares the rules and regulations of the Commission set out above with the rules of criminal procedure, the difference between a criminal trial using an accusatorial process and an inquisitorial Commission of Inquiry comes sharply into view. It is important that those engaging in arguments about whether Mr Zuma is being treated fairly or unfairly, keep this distinction in mind.

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