Introduction

South Africa has in recent years witnessed a proliferation of commissions of inquiry. Though their purposes have varied immensely, their primary role has been to serve as a truth finding mechanism, to unearth various wrongs and to advise the government on the manner in which such wrongs may be corrected.

The State Capture Commission of Inquiry colloquially known as “the Zondo Commission”, in particular, is tasked with serving the vital purpose of investigating how and why it is that the South African government failed to govern and allowed itself to be “captured” and its decisions to be influenced by influential persons outside of government.

We have recently observed a number of concerns raised by affected and or implicated persons who have questioned the nature and application of the Rules and procedures governing the Zondo Commission, amongst others the following has been raised:

• Minister Nomvula Mokonyane, raised concerns relating to her right to procedural fairness and the deviation of the Zondo Commission from its own rules; and
• concerns relating to double jeopardy and the right to cross examination have been raised by Mr Moyane.

In a two-part article we shall delve into the legal framework and procedures which govern the Zondo Commission in order to address some of the concerns that have been raised against the Zondo Commission. This Part 1 of the article will focus on the statutory framework that governs the Zondo Commission and the audi alteram concerns that have been raised .

Statutory framework

The Zondo Commission is a creature of statute appointed by former President Jacob Zuma in terms of section 84(2) of the Constitution. The Zondo Commission draws its investigative powers from the Commissions Act which accords it with, amongst others, powers of subpoena, protects it against interference and obstruction and empowers the President to promulgate its regulations.

The Regulations, as amended, were published in March 2018 and confer upon the Zondo Commission various powers intended to preserve secrecy and regulate the admissibility of evidence before it. Regulation 15 expressly empowers the Zondo Commission to determine its own procedures. This power is not unique to the Zondo Commission, as stated in S v Naude 1975 SA 681 “it is an inherent right of a commission of inquiry”.

The Zondo Commission has determined its own Rules (Notice 396 of 2018) which regulate amongst others the manner in which  evidence must be presented and the manner in which implicated and or interested persons may make submissions.

Throughout its investigations and proceedings, the Zondo Commission will be guided by its Terms of Reference. The Terms of Reference of the Zondo Commission are wide and instruct it to inter alia “Inquire into, make findings, report on and make recommendations into allegations of state capture, corruption and fraud in the public sector including organs of state.”

The Terms of Reference of the Zondo Commission accord it with quasi-judicial powers to subpoena, cross examine witnesses and to refer a matter to prosecution.

Its quasi-judicial nature should not lead an individual to confuse its proceedings with that of a court of law as they are disparate for the following reasons:

• a court of law is bound by rules of evidence and the pleadings before it whilst a commission of inquiry is not; and
• a court of law makes judgments which have a binding legal effect on the parties involved whilst a commission of inquiry makes non-binding recommendations to the President.

Albeit, not being purely judicial in nature, and although its findings are not binding on the President, these findings may have damning repercussions for persons condemned therein and carry with them a possibility of criminal or civil prosecution.

The Audi Alterem Partem Rule

The Zondo Commission recently took a decision to deviate from Rule 3.3 and not furnish persons implicated (including Minister Mokonyane) in Mr Agrizzis’ testimony with a copy of the statement prior to his testimony. The reason given by the Zondo Commission for this deviation was that the safety and security of Mr Agrizzi had been threatened and such threat warranted a deviation from the Rules.

Rule 3.3 provides that where a witness’ statement implicates or may implicate an individual, the commission must within a reasonable time before the witness gives evidence and through the secretary of the commission:

“notify the “implicated person in writing that he/or she is implicated by the witness’ evidence;

in what way he/or she may be implicated and furnish him or her with the witness’ statement or relevant portions of the statement…” (own emphasis)

Rule 3.3 is unambiguous and prescriptive in its requirement that implicated persons must be furnished with the witness’ statement or portions thereof prior to the witness testifying at the inquiry.

However, Rule 3.3 must be interpreted purposively. In African Democratic Party v The Electoral Commission and Others 2006 ZACC 1 the court stated that: “when interpreting a prescriptive and peremptory provision, one must not interpret it strictly, one is required to link the question of non-compliance with the rule, with the purpose of the provision as a whole”.

The purpose of Rule 3.3 is to ensure that implicated persons are made aware of allegations which, if made, may be prejudicial to them and to accordingly afford such persons a fair opportunity to respond thereto.

This purpose, is in line with the essential requirements of natural justice, viz the audi alterum partem maxim (“audi principle”).

The importance of the audi principle and the purpose which Rule

3.3. seeks to achieve is irrefutable, however, witness safety and security in the overall framework of the Zondo Commission cannot be discounted.

It is imperative, particularly due to the nature of the Zondo Commission that whistle-blowers or witnesses have no apprehension about testifying before the Zondo Commission.

Although the Rules and Regulations of the Zondo Commission do not specifically address measures to be taken in the event where the security of a witness is threatened, a commission cannot merely disregard the importance of a witness’ safety during its proceedings.

In the premises, in determining where fairness lies, a commission needs to strike a balance and attempt to reconcile the personal safety of a witness with the desirability of ensuring the persons implicated by a witness’ testimony are afforded an opportunity to state their case.

In the case of Jan Abraham Du Preez v the Truth and Reconciliation Commission (426/96) [1997] (“Du Preez”) persons implicated in a witness’ statement were furnished with a vague statement three days prior to the witness testifying and requested to respond thereto. The TRC’s reasons for failing to provide adequate and timeous notice was to protect the identity of the witnesses testifying before the inquiry, who were victims of human rights violations and remained traumatised by their experiences.

The implicated persons approached the court alleging that the statement furnished to them was vague, no timeous notice was given and this was a blatant disregard of the audi principle.

The court held that although there may be a need for witness protection in a particular case, the paucity of the information given to the implicated persons could not be justified.

However, in the English case of the Queen on the Application of Associated Newspaper Ltd v the RT Hon Lord Justie Leveson [2012] EWHC 57, the Commissioner made a decision to admit evidence from journalists who wished to remain anonymous on the ground of fear of career blight if they identified themselves. Newspaper organisations thereafter brought an application to review this decision on the grounds that it was unfair and contravened the rules of natural justice.

The court held that “in determining where fairness lies in a public inquiry, there is always a balance to be struck and fear for a person’s future livelihood can be a powerful gag.”

The facts of the Du Preez case are distinguishable from the facts in question for the reason that the persons implicated by Agrizzi’s statement were not furnished with any statement and were not requested to respond to his testimony. Whilst the implicated persons in the Du Preez case were given an incomplete statement and an unreasonable time within which to respond thereto.

The refusal to enforce compliance with the audi principle in the Du Preez case had the potential to grossly prejudice the persons who were implicated therein, despite the need for protection of the witnesses.

Contrarily, the decision by Deputy Chief Justice Zondo not to furnish the implicated persons with a copy of Mr Agrizzi’s statement beforehand did not contravene the audi principle as the audi principle may be applied at a later stage.

This principle was set out in Doody v Secretary of the State for the Home Department and other Appeals [1993] 3 ALL ER as follows:

“…fairness will very often require that a person who may be adversely affected by a decision will have an opportunity to make representations on his own behalf either before the decision to producing a favourable result or after it is taken with a view to procuring its modification or both.” (own emphasis)

The persons implicated in the Agrizzi statement suffered no prejudice when they were not furnished with the statement prior to the testimony of Mr Agrizzi. This is so because they still have an opportunity to state their version before a final decision is taken. Furthermore, Rule 3.10 provides as follows:

“the chairperson may at any time, direct any person against whom allegations are made in witness’ statement or evidence to respond in writing to the allegations relating to him or her in a statement or evidence and /or to answer questions put to him or her by the chairperson arising from the witness’ statement.”

This Rule 3.10 further lays credence to the argument that persons implicated may still rebut the version of events as provided by Mr Agrizzi.

The Zondo Commission was required to weigh the interests of both parties by taking cognisance of witness safety whilst also being aware that the audi principle may be applied at a later stage. By so doing, the Zondo Commission balanced the interests of both parties.