By Paul M. Ngobeni
President Ramaphosa announced many months before he even received the Zondo Commission report that he would enthusiastically implement the commission’s findings.
Of course, at the time of his announcement Ramaphosa knew that he had Judge Zondo by the proverbial balls – Zondo desperately wanted to ascend to the soon-to-be -vacant position of chief justice at all costs and Ramaphosa could make his dream come true subject to certain conditions.
Zondo had to exonerate Ramaphosa in his report even if some prominent ANC officials were sacrificed or thrown under the bus. For good measure, Zondo also unquestionably crossed the line of judicial ethics by wading into a tussle with Minister Lindiwe Sisulu over her newspaper opinion piece she published about a captured or untransformed judiciary.
Zondo simply sought to assist Ramaphosa against Sisulu, his strongest rival for the ANC presidency, by condemning the latter for her political writings and public engagement.
Politically astute South Africans are painfully aware that Ramaphosa has a track record of manipulating and misusing the findings and reports of commissions against his political enemies to further his own political agenda.
A perfect case in point was the “Arms Deal” commission report by retired judges Willie Seriti and Thekiso Hendrick Musi, which exonerated former president Jacob Zuma.
The Seriti commission, appointed by former president Zuma in 2011, thoroughly investigated the government’s controversial purchase of weaponry including corvettes, submarines, light utility helicopters and other light fighter aircraft during the Mbeki years.
Some disgruntled white activists blasted the commission as a whitewash after finding no evidence of corruption against President Zuma in the controversial multibillion-rand procurement package. These critics brought a review application in the North Gauteng high court to set aside the findings of the Seriti Commission of Inquiry for its alleged failure to admit, interrogate and pursue evidence related to corruption allegations in 1999 arms deal. But Ramaphosa devised a stunning political solution to effect a negative outcome for Zuma and to ensure that the narrative of Zuma’s alleged corruption was perpetuated and used to Ramaphosa’s own political benefit. This is how he accomplished the satanic feat.
First, Gauteng Judge President Dunstan Mlambo, who is reported to be Ramaphosa’s henchman, adopted an unprecedented manoeuvre - he took over the matter and invited two other senior judges (judge presidents from other divisions) Dennis Davis and Monica Leeuw, to sit with him on the matter. The jurists then proceeded to invalidate Judge Seriti’s findings that there was no evidence of corruption in the arms deal. See, Corruption Watch and Another v Arms Procurement Commission and Others (81368/2016) [2019] ZAGPPHC 351; [2019] 4 All SA 53 (GP); 2019 (10) BCLR 1218 (GP); 2020 (2) SA 165 (GP); 2020 (2) SACR 315 (GP) (21 August 2019). Significantly, the Court observed that: [17] It is important at this stage to make the following observations: this review was not opposed by any of the respondents nor any party for that matter. In particular, President Ramaphosa (fifth respondent) chose to abide the decision of this Court. The fifth respondent appointed senior counsel to present argument, not in opposition of the relief sought by the applicants, but merely 'to assist this Court to arrive at a correct decision'. Significantly, neither the second nor the third respondents, the two members of the Commission, opposed the relief sought nor did they seek to admit any affidavit into evidence that might have sought to gainsay the applicants version. For this reason, this Court is bound to accept the facts set out in the founding affidavit and to base its application of its review powers on these facts.
Ramaphosa gerrymandered this outcome by instructing the Ministers of Justice and Public Enterprises not to oppose the application. In short, Ramaphosa embarked on a farcical process and charade to ensure that there was no opposition to the review of the Seriti Commission and he did all that “merely 'to assist this Court to arrive at a correct decision'.
As the publication “Legalbrief” noted, President Cyril Ramaphosa did not oppose this application by Corruption Watch and Right2Know, even though the Presidency had accepted the report in its entirety in 2015. Further, the publication stated that “former President Jacob Zuma, probably has most to lose, and will almost certainly be the first to feel the full impact of the ruling.” The judgment effectively “means he can no longer count on the commission's findings – as he has done up to now – to argue against the myriad arms deal corruption-related counts he faces.”
Faced with an unopposed case, Mlambo JP, who was also being eyed for elevation to the Constitutional Court came out guns blazing. The panel said it was “inexplicable” for the inquiry to have ignored essential information before finding there was no evidence of corruption, improper influence, or fraud in the arms deal. The judgment emphasised that without opposition, the court was bound to accept the facts of the applicants and rule only on how the commission came to its findings.The court found “it is clear that the commission failed to enquire fully and comprehensively into the issues which it was required to investigate on the basis of its terms of reference”. It criticized the commission’s failure to introduce the record of the criminal case against Schabir Shaik, convicted of soliciting bribes from arms company Thomson-CSF, amongst others.
It failed to interrogate evidence from arms acquisition head Chippy Shaik and businessman Fana Hlongwane, both of whom are linked to allegations of corruption in evidence from other submissions at the inquiry.
The court also found that the inquiry’s refusal to begin the diplomatic process of accessing information from foreign governments “seriously hobbled its investigation”. Mlambo concluded that “where the uncontested evidence reveals so manifest a set of errors of law, a clear failure to test evidence of key witnesses, a refusal to take account of documentary evidence which contained the most serious allegations which were relevant to its inquiry, the principle of legality dictates only one conclusion, that the findings of such a commission must be set aside.”
You may vociferously argue against President Zuma's persistent insistence that judicial and state institutions have been used to persecute him and other political opponents of Ramaphosa for all you like. But the evidence is just too glaring to ignore.
Ramaphosa also pulled another stunt which is particularly revealing of his political calculations. Before he even saw the report, he assured the public the recommendations of the Commission of Inquiry into Allegations of State Capture’s report will be implemented once he receives it.
This begs the question - can a law-abiding, rational, honest and duty-conscious President commit himself to accepting and implementing the report of a commission before it is even drafted and published or before he has even seen its contents?[1] How would he know in advance whether the report is riddled with “manifest a set of errors of law, a clear failure to test evidence of key witnesses, a refusal to take account of documentary evidence which contained the most serious allegations which were relevant to its inquiry” before such drafting and publication of the report? Is such conduct consistent with Section 84 of the Constitution and the principle of legality, and if not does that not render the President’s acceptance of the Zondo report and implementation a nullity? We can leave that to the lawyers of those falsely implicated in the Zondo report. But that is not all.
After the commission was established Ramaphosa took another insidious step to weaponise the commission as a political tool to be used selectively against his political enemies.
Following loud criticism of the NPA for its alleged failure to prosecute high profile state capture cases, Ramaphosa amended the commission’s regulations to allow the Zondo commission to be used as a Trojan horse for the unwary. In November 2019, NDPP Shamila Batohi said while there was good cooperation with the inquiry chaired by DCJ Zondo, accessing information was difficult.
She stated: “The Zondo commission cannot share [information] with us unless it has been made public or if the chairperson has otherwise authorised the release of information, and obviously there’s an unwillingness to do that because there’s much to be gained from people coming forward and giving evidence. We are in dialogue on how to manage challenges on both sides of the fence”.
In response to the importuning of the NPA Ramaphosa published in a gazette notice of 28 July 2020 an amendment which effectively allows South Africa’s law enforcement agencies to have access to information gathered by the state capture commission of inquiry, making it easier to build cases against implicated individuals. The gazette notice introduces sub-regulation 5 in regulation 11 which reads, “Sub-regulation (1) (2) and (3) shall not apply to the sharing of information, records or documents with any state law enforcement agency.” This raises very serious questions about whether Ramaphosa has effectively forced DCJ Zondo to operate as an appendage to the NPA’s criminal prosecution and investigations which appears to be unlawful and unconstitutional.
The pivotal question is whether changing the rules more than two years after the Zondo commission had commenced its investigations posed a threat to the fairness of the process, unfairly prejudiced the rights of implicated persons and threatens to undermine the legitimacy of the Zondo commission itself. Persons had already given and completed evidence under the rules as they existed and implicated persons were under the impression that the investigators and members employed by the commission would operate professionally and not labour under a conflict of interest.
That changed as the SIU has now used the very information given to the Zondo commission to arrest persons implicated in corruption and other offences. This disturbing meddling by President Ramaphosa in the work of the state capture commission has also raised the spectre that the Zondo commission is hopelessly compromised and is transformed into an instrument to fight factional battles within the ANC. It would be interesting to see how Ramaphosa uses his political clout to influence the NPA’s prosecution of his hitherto untouchable allies such as Mantashe, Thabang Makwetla, Zizi Kodwa and a slew of others. The constitutionality of rules compelling witnesses to appear before a commission set by the executive, coercing them to testify about certain matters and then using that compelled testimony to build criminal cases against them will be seriously litigated in the coming months and years.
In the process, the NPA’s recent public pronouncements have caused it to lose whatever little credibility it had remaining. On 10 May 2022 the national director of public prosecutions Shamila Batohi announced before the portfolio committee on justice and correctional services that the NPA's Investigating Directorate (ID) intends to prosecute nine "seminal" corruption cases related to state capture within six months.[2] Why in the next six months? Because the ANC watershed elective conference is due to be held in December 2022 and the prosecutions of individuals deemed a political threat to Ramaphosa must be calibrated to assist the Ramaphosa’s re-election bid. Batohi said the nine ones prioritised were "seminal cases that will talk to the heart of state capture". Batohi naively said: “The reality is that, right now, our response to the findings and recommendations of the Judicial Commission of Inquiry into State Capture is what will really be defining for the NPA and South Africa.” I consider Batohi’s view to be naïve in the extreme for several reasons.
It is accepted almost universally that that commissions are not courts of law and evidence adduced during a commission’s inquiry is not automatically admissible in civil or criminal proceedings.
In New Zealand the judiciary has long made it pellucid that commissions of inquiries are not courts of law, nor administrative tribunals. See, for example, Peters v Davison [1999] 2 NZLR 164, 181 (CA). Such Commissions do not have the power of determination, and their recommendations and findings bind no one. They can be ignored or rejected by the executive willy-nilly or at least subject to the legality principle.
The Davison Court cited In Re the Royal Commission to Inquire into and Report upon State Services in New Zealand [1962] NZLR 96 at p 109 where North J said:
''A Commission of Inquiry is certainly not a Court of law. . . . Nor is a Commission of Inquiry to be likened to an administrative tribunal entrusted with the duty of deciding questions between parties. There is nothing approaching a lis , a Commission has no general power of adjudication, it determines nobody's rights, its report is binding on no one.''
The Davison court also made the following observation:
“In opposition are basic characteristics of a commission of inquiry. Its report is merely an expression of its opinion. A commission of inquiry is not to be likened to a Court of law nor to an administrative tribunal entrusted with the duty of deciding questions between parties; there is nothing approaching a lis and the commission has no general power of adjudication (North J in Re the Royal Commission to Inquire into and Report upon State Services in New Zealand at p 109). It follows that the reports of commissions of inquiry have no immediate legal effect. Because the reports of commissions of inquiry are, in the end, only expressions of opinion, "[i]n themselves they do not alter the legal rights of the persons to whom they refer"
The court, in another New Zealand case, Re Erebus Royal Commission (No 2) [1981] 1 NZLR 618, made important observations as follows:
''This is not an appeal. Parties to hearings by Commissions of Inquiry have no rights of appeal against the reports. The reason is partly that the reports are, in a sense, inevitably inconclusive. Findings made by Commissioners are in the end only expressions of opinion. They would not even be admissible in evidence in legal proceedings as to the cause of a disaster. In themselves they do not alter the legal rights of the persons to whom they refer. Nevertheless they may greatly influence public and Government opinion and have a devastating effect on personal reputations; and in our judgment these are the major reasons why in appropriate proceedings the Courts must be ready if necessary, in relation to Commissions of Inquiry just as to other public bodies and officials, to ensure that they keep within the limits of their lawful powers and comply with any applicable rules of natural justice.''[3]
Canadian courts have also accepted the well-established principle that a commission of Inquiry may not draw conclusions, or make recommendations regarding the civil or criminal responsibility of any person or organization. They are generally prohibited from making any findings of criminal or civil responsibility, and no such finding may be inferred from any of a commissioner’s remarks. Such a prohibition is necessary because a commission may admit evidence not given under oath, and the ordinary rules of evidence which provide protection against such matters as hearsay do not apply to public inquiries.
Justice Cory of the Canadian Supreme Court stated in Canada (Attorney General) v. Canada (Commission of lnquiry on the Blood System) (1997), 151 D.L.R. (4th) 1, the following about the history, nature and role of inquiry commissions in that country:
29 Commissions of inquiry have a long history in Canada, and have become a significant and useful part of our tradition. They have frequently played a key role in the investigation of tragedies and made a great many helpful recommendations aimed at rectifying dangerous situations.
34 A commission of inquiry is neither a criminal trial nor a civil action for the determination of liability. It cannot establish either criminal culpability or civil responsibility for damages. Rather, an inquiry is an investigation into an issue, event or series of events. The findings of a commissioner relating to that investigation are simply findings of fact and statements of opinion reached by the commissioner at the end of the inquiry. They are unconnected to normal legal criteria. They are based upon and flow from a procedure which is not bound by the evidentiary or procedural rules of a courtroom. There are no legal consequences attached to the determinations of a commissioner. They are not enforceable and do not bind courts considering the same subject matter. ... Thus, although the findings of a commissioner may affect public opinion, they cannot have either penal or civil consequences. To put it another way, even if a commissioner’s findings could possibly be seen as determinations of responsibility by members of the public, they are not and cannot be findings of civil or criminal responsibility.
Very interesting insights are also contained in the judgments of the high court and in the Supreme Court of Ireland in the leading case of Goodman International and Lawrence Goodman v. The Honourable Mr. Justice Liam Hamilton, Ireland and the Attorney General [1992] 2 IR 542. This decision is now the foundation, in Irish law, of the constitutionality of the Tribunal of Inquiry (Commissions), as known in Irish law. In Goodman, the former Chief Justice said at p.590:
“With regard to the suggestion that the findings of the Tribunal if not an impermissible administration of justice by a body other than a court, is a usurpation of the activities of courts in cases where either civil cases are pending or may be instituted, it seems to me that again this submission arises from a total misunderstanding of the function of the Tribunal. A finding by this Tribunal, either of the truth or of the falsity of any particular allegation which may be the subject matter of existing or potential litigation, forms no part of the material which a court which has to decide that litigation could rely upon. It cannot either be used as a weapon of attack or defence by a litigant who in relation to the same matter is disputing with another party rights arising from some allegation of breach of contract or illegal conduct or malpractice. I am, therefore, satisfied that the submission under Article 34 must fail”. (Emphasis added)
Commissions of inquiry all seem to have several things in common - such tribunals operate “in vacuo” and are of “sterile of legal effect” in that their reports are simply opinions and “devoid of legal consequences”.
In this context, the NPA and other Ramaphosa puppets need to come to the realization that they are headed for a very bumpy ride and the Zondo commission’s reports are simply opinions and “devoid of legal consequences”. The said report is not automatically admissible in court and cannot be used as a weapon or a shield in the hands of NPA at any stage in a judicial forum. The courts must regard the Zondo report as “devoid of legal consequences” or “sterile of legal effect”. Even though the commission was headed by a deputy chief justice, its report cannot be elevated improperly to assume the status of a court judgment. That would be purely wrong and inconsistent with Section 165 of the Constitution which states unequivocally that judicial authority lies in the courts. A matter of fact requiring to be established before a court must be established by admissible evidence which is open to cross-examination and contradiction, and is given publicly before the Court. It is not normally an admissible form of proof to produce a statement by a third party whether a policeman, a government minister or a commission of inquiry and to claim that that has evidential effect, prima facie or otherwise. An exception to this arises, of course, where there is an issue which, by virtue of a decision of a court of competent jurisdiction, is res judicata between the parties; but such a decision of a court will itself have been reached on admissible evidence duly adduced in a hearing which observes all the parties’ procedural rights.
The Zondo commission and its processes are woefully inadequate and members of the public who have been misled to believe that Zondo has adjudged certain persons guilty will be sorely disappointed.
In short, Ramaphosa has effectively forced DCJ Zondo to operate as an appendage to the NPA’s criminal prosecution and investigations which appears to be unlawful and unconstitutional. Lawyers will have a field day litigating such matters and exposing just how corrupt and manipulative Ramaphosa has been.