There are two provisions in the regulations for the State Capture Commission (SCC) that require careful scrutiny and, possibly, urgent revision. They are regulations 8(1) and 8(2) which read:

• No person appearing before the commission may refuse to answer any question on any grounds other than those contemplated in section 3(4) of the Commissions Act, 1947 (Act no 8 of 1947).

• No evidence regarding questions and answers contemplated in subregulation 1, and no evidence regarding any fact or information that comes to light in consequence of any such questions or answers, shall be admissible in any criminal proceedings, except in criminal proceedings where the person concerned is charged with an offence in terms of section 6 of the Commissions Act, 1947 (Act no 8 of 1947), or regulation 12.

Section 3(4), in part, provides that:

“…the law relating to privilege as applicable to a witness giving evidence or summoned to produce a book or document in such a court, shall apply.”

Section 6 and regulation 12 in turn deal with offences against or before the SCC itself, not with state capture, which is the subject matter of the SCC.

Those with a jaundiced view of the Zuma presidency may see in these provisions a trap designed not to capture but to free from criminal prosecutions all those who confess before the SCC. Indeed, properly advised, those implicated in wrongdoing should be falling over themselves and one another to give evidence to the SCC so that the criminal justice administration is blocked from using it against them in the prosecutions long needed but thus far not forthcoming.

Michael Hulley, the legal adviser to the President, is sure to claim legal professional privilege; he did, improperly so, when asked how he got hold of the spy tapes.

There is a further wrinkle arising from the wording of section 1 of the act. It provides that the President make “… regulations with reference to such commission — (i) conferring additional powers on the commission; …

(iv) providing generally for all matters, which he considers it necessary or expedient to prescribe for the purposes of the investigation”.

It is not for the public protector, the commissioner or anybody else to assume these functions. The legislature has delegated them to the President and he may not delegate them to anyone else, nor may the public protector assume them or delegate them to the commissioner by saying, as she did, use my report as your “starting point”.

A conflicted president who is unable to act may be substituted, by the operation of sections 90 and 96 of the Constitution, by his or her deputy for the purposes of setting up a commission, but he or his deputy cannot delegate the duties under the act. The Ratnagopal decision in the Privy Council in 1969 applies.

The best option now, in the absence of revision of the regulations, is for the SCC simply to recommend prosecutions forthwith, without receiving evidence itself. This step can be taken in the light of the amount of information already in the public domain. Fact finding when the facts are already known is superfluous. If the regulations stand, then taking evidence precludes that evidence from being used in prosecutions which should follow.

Paul Hoffman SC

Director of Accountability Now

Letter published in Ddlive on 13 February 2018.

Section 6 and regulation 12 in turn deal with offences against or before the SCC itself, not with state capture, which is the subject matter of the SCC.

Those with a jaundiced view of the Zuma presidency may see in these provisions a trap designed not to capture but to free from criminal prosecutions all those who confess before the SCC. Indeed, properly advised, those implicated in wrongdoing should be falling over themselves and one another to give evidence to the SCC so that the criminal justice administration is blocked from using it against them in the prosecutions long needed but thus far not forthcoming.

Michael Hulley, the legal adviser to the President, is sure to claim legal professional privilege; he did, improperly so, when asked how he got hold of the spy tapes.

There is a further wrinkle arising from the wording of section 1 of the act. It provides that the President make “… regulations with reference to such commission — (i) conferring additional powers on the commission; …

(iv) providing generally for all matters, which he considers it necessary or expedient to prescribe for the purposes of the investigation”.

It is not for the public protector, the commissioner or anybody else to assume these functions. The legislature has delegated them to the President and he may not delegate them to anyone else, nor may the public protector assume them or delegate them to the commissioner by saying, as she did, use my report as your “starting point”.

A conflicted president who is unable to act may be substituted, by the operation of sections 90 and 96 of the Constitution, by his or her deputy for the purposes of setting up a commission, but he or his deputy cannot delegate the duties under the act. The Ratnagopal decision in the Privy Council in 1969 applies.

The best option now, in the absence of revision of the regulations, is for the SCC simply to recommend prosecutions forthwith, without receiving evidence itself. This step can be taken in the light of the amount of information already in the public domain. Fact finding when the facts are already known is superfluous. If the regulations stand, then taking evidence precludes that evidence from being used in prosecutions which should follow.

Paul Hoffman SC

Director of Accountability Now