President Cyril Ramaphosa significantly changed the regulations governing commissions before the much-anticipated, ongoing Judicial Commission of Inquiry into Allegations of State Capture kicked off last year. Regulation 8(1) of the Commissions Act rightfully states that no witness may refuse to answer questions posed at the commission, while regulation 8(2), which effectively granted immunity in respect of any evidence presented at the commission, was seen as problematic. The regulations were signed off by former president Jacob Zuma.

Regulation 8(2) originally stated that “no evidence regarding questions and answers contemplated in sub-regulation (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.”

AfriForum, among other parties, wanted this regulation to be changed and was prepared to go to court to achieve this aim. The civil rights group said the clause implied that no evidence emerging from the questions and answers in the inquiry would be admissible if there were subsequent criminal proceedings. The result would be that a witness’ evidence against other people could be used in criminal charges‚ while the evidence that personally incriminates the witness would be excluded. They felt that this would turn the commission of inquiry into an amnesty tribunal.

When the regulation was changed, the Presidency said that “on the basis of legal advice, the president has amended regulation 8(2) to limit the inadmissibility of such evidence to circumstances where a witness may incriminate themselves.”

Regulation 8(2) currently reads as follows: “A self-incriminating answer or a statement given by a witness before the commission shall not be admissible as evidence against that person in any criminal proceedings brought against that person instituted in any court, 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).” Section 6 of the Commissions Act states that “any witness who does not testify as agreed, or finish testifying, or produce any document or book or information required, is liable to a fine.”

But what is the meaning of all these legislative changes? The answer is found in Grant Hooles’ article “Reconceiving Commission of Inquiry as Plural and Participatory Institutions: A Critical Reflection on Magidiwana.” Hoole offers a comparative perspective of Canadian and Australian legal standards concerning the controversies in Magidiwana. The comparison helps to establish both the international relevance of Magidiwana and the degree to which it departs from an orthodox functioning of inquiries. The case has significantly influenced the manner in which inquiries are conducted in South Africa — as seen from the amendment of section 8(2) of the Commissions Act by President Ramaphosa.

The functioning of commissions

Commissions of inquiry are established by presidential proclamation and are vested with authority under the Commissions Act. Section 84(2)(f) of the Constitution grants the president the authority to appoint commissions of inquiry concerning any issue. For a commission to exercise coercive investigative authority, however, it must be vested with the powers of the Act.

This is similar to the situation in Canada and Australia, where appointment of a commission of inquiry remains a prerogative of the Crown, while the conferral of coercive powers lies with the statutory authority. The Commissions Act is similar to the equivalent federal statutes in those countries. It provides an outline and confers robust authority on inquiries to compel witnesses and hear testimony under oath, and to demand the production of evidence. However, it does not set out in detail how inquiries should be structured procedurally.
The statute also does not deal in any detail with the rights of injured witnesses. It does state that compelled witnesses may exercise the same evidentiary privileges at an inquiry as those available in the court.

This position differs from that in Canada and Australia where the privilege against self-incrimination is abrogated at commissions of inquiry, subject to a broad restriction against the admission of compelled evidence in subsequent civil or criminal proceedings.

Privilege

Privilege refers to a personal right to refuse to give or disclose otherwise admissible evidence. A witness, who may be compelled, is not obliged to answer certain questions. However, privilege is different from other rules that exclude evidence. These rules tend to exclude evidence because of some doubt about its reliability, whereas privilege excludes evidence because it aims to protect a higher value than the search for truth. Privilege is therefore not granted lightly. In the case of privilege, the witness may not refuse to testify entirely, but may decline to answer particular questions.

Private privilege may be waived, but courts need confirmation that the person who is waiving their privilege is aware of their rights. The court must be satisfied of this before it will allow the waiving. Courts are generally reluctant to grant privilege because it makes it more challenging to get to the bottom of a matter.

The principle of self-incrimination determines that people heard by the commission must have the right to refuse testimony if they would incriminate themselves before the commission, or with a view to subsequent criminal proceedings. As a result, witnesses frequently refuse to testify, which results in difficulty in establishing the truth. It is the natural consequence of the presumption of innocence and it applies to both criminal and civil cases. In civil cases, a witness might sometimes be likely to say something that could lead to their criminal prosecution. Privilege protects the witness in such circumstances.

Gathering evidence

All types of legal procedure look to the law of evidence to determine which information may be gathered and how these facts may be obtained: through civil and criminal trials, inquests, extraditions, commissions of inquiry, and so on. The law of evidence overlaps with other branches of procedural and substantive law. In the case of other branches of law, it is not vital to decide under which branch a particular rule falls, but with evidence it can be vital.

Separate rules apply to statements qualifying as confessions. The Constitution may well provide an opportunity for courts to overrule the arbitrary distinction previously made between the admissibility of confessions and the admissibility of admissions in section 35(1)(c).
A parliamentary commission of inquiry is part of most continental constitutions. It is the strongest instrument available to oversee government actions, but it holds now sway over private activities. Criminal courts can only assert the criminal liability of a behaviour which is penalised by law. The court’s competence is not limited as far as politicians are concerned, unless constitutional regulations provide them with indemnity. But this is not the case in South Africa. In the constitutional era, anything in the common law which contradicts the Constitution is not tolerated, unless it is a justifiable limitation. Therefore regulation 8(2) or any regulation pertaining to government’s investigation of the political liability of members of government and all forms of government activities are purely political instruments of oversight. Finally, the laws are in place and the courts must ensure that justice prevails, regardless of what takes place at the state capture inquiry.

By Nonhlanhla Mahlangu

LindsayKeller associate

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