As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
In one of the episodes of the classic BBC television series Yes Prime Minister, Jim Hackett (the Prime Minister of the UK) decides to appoint a commission of inquiry to come to the bottom of some scandal or another. The senior civil servant, Sir Humphrey Appleby, is appalled by this decision as this runs the risk of exposing the shenanigans inside the government. In a hilarious exchange Sir Humphrey explains to the Prime Minister that all is not lost as he can still save the day by appointing a “sound” person to head the commission. A “sound” person — one that can be “trusted” — would ensure that wrongdoing is never exposed while giving the appearance of openness and accountability.
Only time will tell whether the announcement today that President Jacob Zuma has decided to appoint a commission of inquiry to investigate allegations of wrongdoing in the Strategic Defence Procurement Packages (generally known as the “arms deal”), will be a political disaster or a masterstroke and whether the President will appoint a fearless and respected person to head the Commission or whether he will choose a “sound” person to investigate the arms deal.
The President is empowered in terms of section 84 (2) (f) of the Constitution to appoint commissions of inquiry. This is a broad discretion and as I read this section the President has the power to appoint any kind of body to investigate a matter of public concern — even if the commission appointed has very little legal powers and no legal standing.
However, for the inquiry to have any legal standing and for it to have the powers to do its job properly and diligently, the President will have to appoint an official commission of inquiry in terms of the Commissions Act 8 of 1947. If the President does not appoint a formal commission of inquiry, the commission will have little power and no official legal standing, so one assumes that the President will appoint an official commission of inquiry in terms of the Act. Anything else will be a pure waste of time and money.
The Act empowers the President to appoint a formal commission of inquiry “for the purpose of investigating a matter of public concern” by issuing a proclamation in the Government Gazette. The President can then also make regulations with reference to such commission to confer additional powers on the commission; to provide for the manner of holding or the procedure to be followed at the investigation or for the preservation of secrecy; and any other regulations which he may deem necessary or expedient to prevent the commission or a member of the commission from being insulted, disparaged or belittled or to prevent the proceedings or findings of the commission from being prejudiced, influenced or anticipated.
Section 3 of the Commissions Act states that such an official commission shall have the same powers which a High Court would normally have. These powers include the power to summon witnesses, to take evidence from witnesses under oath, to examine such witnesses, and to call for the production of books, documents and objects. Such a commission is also protected by the same kind of rules that apply to a judge regarding contempt of court.
Of course, it would be important to ensure that a credible person be appointed to head this commission. In the past such commissions were often headed by a judge or a retired judge.
Appointing a judge is not an absolute safeguard against political expediency, of course. The National Party government sometimes appointed judges to head Commissions of Inquiry because it happened to “trust” the judge. PW Botha appointed the Erasmus commission, headed by judge Erasmus, a man famous for his friendship with the Prime Minister and for his mangling of the English language. (Erasmus is famous for reportedly making statements such as: “It runs off me like ducks water off my back” and “he is a very influential man — he’s got a finger in every tart in town.”)
Recent – far more credible and successful — examples of the practice of appointing judges to head commissions of inquiry include the appointment of judge Sisi Khampepe to investigate problems relating to the Scorpions and the Jali commission of inquiry which was tasked with investigating corruption and maladministration in our prisons.
The DA and others might object to the appointment of a judge to head such a commission. After all, the DA led city council of Cape Town challenged the appointment of Judge Nathan Erasmus to head a commission of inquiry into alleged maladministration in the DA led Cape Town City council by then Premier Ebrahim Rasool. The City argued, inter alia, that the appointment of a serving judge to chair the Second Erasmus Commission was incompatible with the separation of powers ordained in the Constitution and therefore unlawful and invalid. In that judgment the Cape High Court agreed with the DA argument and stated that:
With great respect to the views of the Constitutional Court, it seems to me that at this early stage of our fledgling democracy, and with the vital object of preserving public confidence in the independence of the judiciary, active judges should as a matter of principle, not chair commissions of inquiry. This would eliminate the risk of judges becoming embroiled in disputes such as the present and the need to define in what circumstances a judge could “appropriately” chair a commission of inquiry.
This finding strangely seemed to contradict the views expressed by the Constitutional Court, views expressed by that court in the case of South African Association of Personal Injury Lawyers v Heath and Others. In that judgment the Constitutional Court took a somewhat more nuanced view of the question of when a judge should be able to head an official commission of inquiry stating that:
In dealing with the question of judges presiding over commissions of inquiry, or sanctioning the issuing of search warrants, much may depend on the subject matter of the commission and the legislation regulating the issue of warrants. In appropriate circumstances judicial officers can no doubt preside over commissions of inquiry without infringing the separation of powers contemplated by our Constitution. The performance of such functions ordinarily calls for the qualities and skills required for the performance of judicial functions — independence, the weighing up of information, the forming of an opinion based on information, and the giving of a decision on the basis of a consideration of relevant information. The same can be said about the sanctioning of search warrants, where the judge is required to determine whether grounds exist for the invasion of privacy resulting from searches.
An inquiry into the arms deal, one in which the commission would be called upon to hear evidence, to weigh that evidence and then to make findings and recommendations based on the evidence it had heard and/or uncovered, would most probably fall within the exception carved out by the Constitutional Court. If a judge or retired judge headed such a commission it would also lend gravitas and credibility to the process, something that would be of the utmost importance if the commission is finally to put the whole arms deal scandal to bed.
It would therefore be possible for a judge to head such an inquiry, but perhaps — just to be on the safe side — the President might wish to appoint a retired judge to head the commission to ensure that no separation of powers issues arise. Somebody highly regarded and well-respected, such as former Chief Justice Pius Langa or former Chief Justice Sandile Ngcobo, comes to mind as possible candidates for the job.
On the other hand, if the President does not appoint an official commission of inquiry in terms of the Commissions Act, if he appoints somebody seen to be too close to the governing party or a faction within the governing party, or if he restricts the terms of office of the commission to such a degree that it would make it impossible for the commission to draw credible conclusions that will install confidence with various factions within the ANC and with the broader South African public, this exercised will be doomed from the start.
Only time will tell whether this inquiry is going to be credible. If it is going to be seen as credible, it might assist to lay the whole arms deal scandal finally to rest so that we can move on. If not, the arms deal will probably continue to haunt various factions within the ANC and will continue to be used and abused for factional purposes.BACK TO TOP