The Poisoned Chalice of a Judge-Led Inquiry into State Capture
Commissions of inquiry are often established in response to matters of public concern or public crisis. Commissions of inquiry have featured strongly in democratic South Africa, and many have been tasked with a truth-seeking mandate in relation to issues with profound political significance.
Most famously, the Truth and Reconciliation Commission, chaired by the late Desmond Tutu, grappled with the human rights violations under the Apartheid regime. More recently, political and constitutional discourse has been dominated by the Judicial Commission of Inquiry into Allegations of State Capture, chaired by Justice Raymond Zondo, which was established following the Public Protector’s “State of Capture” report in 2016.
Witness after witness before the Zondo Commission aired explosive testimony about rampant corruption in South Africa over the last decade as state institutions became the hub of a looting frenzy. As Professor Geo Quinot explained in this earlier post, public procurement was at the heart of state capture in South Africa. So far, the Zondo Commission has released parts 1, 2 and 3 of its report, with the remaining parts due to follow later in March and April 2022.
Those implicated in these reports have already threatened to challenge the Commission’s findings through judicial review proceedings, with the first high-profile salvo having been fired by Gwede Mantashe, the chair of the African National Congress (ANC) and Minister of Mineral Resources and Energy. There is also no shortage of criticism about the value of the Commission’s report for delivering us to the promised corruption-free land.
Rather than focusing on the liability of those alleged to have been in the eye of the storm called State Capture, this post considers how the Zondo Commission has shaped South Africa’s legal and constitutional landscape. In particular, I will consider what lessons we have learned about the appointment of sitting judges to lead inquiries in times of strain on our constitutional democracy.
The key ingredients of transparency and independence
The Fitzgerald Inquiry Report of 1989 into politice misconduct in Queensland, Australia, offers a leading example of how the impact of a commission can depend on how well it fends off government interference in its work. The full implementation of the Fitzgerald Inquiry’s recommendations had far-reaching consequences for those holding high public office, including the resignation of the premier, the jailing of three former ministers and the police commissioner, and the downfall of the ruling party in Queensland after 32 years in power.
The Zondo Commission has similarly demonstrated that transparency and independence from the executive are essential for a public inquiry to fulfil its truth-seeking function. However, it is too early to measure the ultimate success of the Zondo Commission in terms of its tangible consequences — its findings still have to survive judicial review and the risk of political fallout may leave its recommendations unimplemented.
What can be said, however, is that the Commission had a strong inquiry head in Justice Raymond Zondo, who has recently been appointed as the new Chief Justice of South Africa. He defended the Commission’s terms of reference and successfully secured extensions to the life of the Commission in order to complete the enormous task he had been given. Justice Zondo also never hesitated to enforce the rules and regulations of the Commission or draw on its statutory powers in order to do its work effectively. This ultimately led to the Commission petitioning the Constitutional Court to uphold its powers to compel Jacob Zuma to appear before it, and consequently having the former president imprisoned for his contempt of this court order.
The same could not be said about the commission of inquiry into the arms deal, chaired by Justice Willie Seriti, whose findings were set aside by the High Court for the “key failure to test evidence of important witnesses and refusal to take account of documentary evidence which contained the most serious allegations that were important to the inquiry”.
The appointment of sitting judges to chair commissions
While the appointment of judges to lead commissions can help secure the independence of an inquiry, this approach is not without its drawbacks. Justice Zondo’s resort, in his capacity as chairperson of the commission, to petitioning his colleagues at the Constitutional Court invites us to revisit the wisdom of appointing sitting judges to lead public inquiries.
There can be no doubt that Justice Zondo’s dual role — being both chairperson of the Commission and Deputy Chief Justice — added to the political contestation around the Constitutional Court’s decision to order Jacob Zuma to account to the Commission for his time in office. It will likely also create further complications when the Commission’s findings are judicially reviewed, especially if this litigation reaches the Constitutional Court.
“Justice Zondo’s resort, in his capacity as chairperson of the commission, to petitioning his colleagues at the Constitutional Court invites us to revisit the wisdom of appointing sitting judges to lead public inquiries.”
However, it should be noted that nothing in the Commissions Act 1947 or the South African Constitution prevents the appointment of serving judges to preside over commissions of inquiry. Section 84(2)(f) of the Constitution simply empowers the president to appoint a commission of inquiry without specifying or prescribing who is eligible for appointment as a member of a commission of inquiry.
In South African Association of Personal Injury Lawyers v Heath, the Constitutional Court held that “in appropriate circumstances judicial officers can no doubt preside over commissions of inquiry without infringing the separation of powers contemplated by our Constitution”. Neither is it uncommon, as illustrated by previous precedents such as the Khampepe Commission and the Seriti Commission.
However, in the more recent case of City of Cape Town v Premier, Western Cape, the High Court expressed the view 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”.
The political tug-of-war that Justice Zondo had to endure in the course of the Commission’s work, including questions around his personal life and integrity, raises concerns about its impact on the administration of justice. What makes matters worse is that the State Capture Commission was chaired by such a senior sitting judge — the Deputy Chief Justice who went on to be the acting Chief Justice during the life of the Commission and now appointed by President Ramaphosa as the new Chief Justice of South Africa.
The risk of damaging perceptions of judicial independence by drawing sitting judges into politically divisive issues should militate against the practice of appointing serving judges to public inquiries. As Ndivhuwo Ishmel Moleya presciently argued after Justice Zondo was appointed in 2018, “although not unlawful, the practice of appointing serving judges to preside over commissions of inquiry should be avoided.”
Given the poisoned chalice that Justice Zondo was handed as the chairperson of the state capture commission, the lesson for the future is that retired justices are better placed to lead public inquiries where the political stakes are high. This would still secure the independence that is essential for an inquiry to fulfil its truth-seeking function without political interference, but do so in a way that safeguards public confidence in the independence of individual judges and the judiciary as a whole.
