Article by Durban based Attorney, Fawzia Khan
South Africans have seen a number of commissions of inquiry being set up almost all of which have taken firm hold in the political, civil and social spheres. Think the SARS Nugent Commission of Inquiry, as well as the PIC Commission and the Zondo Commission (which is investigating the claims of state capture).
Many people mistakenly think that these commissions of inquiry are the same as a court of law process. Even though a commission of inquiry may resemble a court process, having all the hallmarks of a trial and are usually chaired by judges, it is not a court of law. There’s a big difference with regard to the functions, powers, and procedures of both these forums. For starters, a commission of inquiry cannot prosecute or convict a person. In South Africa, we have what is termed the accusatorial system. This means that in a court of law, the presiding officer (be it a judge or magistrate) hears the evidence as an outside observer and thereafter will make his/her ruling.The judgment or court order of the presiding officer is binding. Any person who fails to abide by a court order would be considered to be in contempt of court.
There are specific rules which apply to what evidence can be led, for example, evidence which is inadmissible will not be allowed, nor are leading questions allowed to be put to a witness.
At the end of the judicial process, once judgment has been handed down, an affected party can appeal the decision or have the ruling of the judge taken on review.
A commission of inquiry on the other hand is an inquisitorial process. This is one which allows the chairperson of the commission to take a more active role in the investigation and in receiving evidence of a witness. The chairperson of the inquiry is guided by the terms of reference which set up the commission. The chairperson is tasked to investigate the matter and make a report to the person who set up the commission, (usually the president of the country). Inadmissible evidence is allowed. Leading questions are also allowed. The chairperson of the commission is allowed to ask as many questions as he sees necessary in order to get to the truth.
Once the evidence has been received by the commission, a report in which non-binding recommendations are then put to the president. Even though it may appear as not having the same clout and implications of a court judgment, it’s worth remembering that Tom Monyane was removed as the head of SARS following the Nugent commission’s recommendation. The test as to whether or not the President ought to have acted on the recommendation of the commission is based on “rationality”.
The terms of reference in the Zondo commission on state capture, allowed the commission’s legal team to put any questions to Zuma to ascertain whether Zuma was being truthful as a witness. On the issue of whether or not a witness can be cross examined, in the Zondo Commission, regulation 8(3) allows for a cross-examination if the Chairperson says so.
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