What is a Commission of Inquiry?
A commission of inquiry is a tool to enable the investigation of matters of public concern in a public forum other than in an ordinary court. Commissions are aimed at encouraging transparency through fact finding and providing input for future investigation or criminal proceedings, if necessary. Commissions of inquiry are normally empowered to gather evidence through investigations, including:
- entering and searching premises,
- requesting written statements under oath, as well as
- oral evidence given in a public hearing.
Recent commissions of inquiry include the Arms Deal Commission as well as the Marikana Commission and are created in terms of the Commissions Act, 1947.
The scope of the Inquiry
The commission of inquiry into Allegations of State Capture (“Inquiry”) is to concern itself primarily with the allegations published in the previous Public Protector, Advocate Thuli Madonsela’s State of Capture Report. In carrying out its mandate, the Inquiry will be guided by the Constitution of the Republic of South Africa, 1996, the terms of reference published on 23 January 2018 (“Terms of Reference”), other relevant legislation as well as the December 2017 decision of the North Gauteng High Court in the case of President of the Republic of South Africa v Office of the Public Protector and Others (91139/2016)  ZAGPPHC 747 (13 December 2017), which ordered the establishment of the Inquiry.
The Inquiry is to be chaired by Raymond Zondo, the Deputy Chief Justice of the Constitutional Court. The Terms of Reference extend to government departments and state-owned entities at all levels of government. In addition, members of the National Executive and their families, the Gupta family and their companies are also specifically mentioned.
Although the Terms of Reference require a report to be filed within 180 days of the Inquiry’s commencement, this is not likely given the broad scope of the matters to be investigated. To illustrate, the commissions of inquiry into the Arms Deal and the Marikana tragedy each took approximately 5 years.
Provisions in the Regulations, published on 9 February 2018, worthy of attention are the following:
- The National Treasury, in consultation with the Minister of Justice and Correctional Services are to ensure that adequate funds are made available to the Inquiry for it to realise its mandate.
- No evidence regarding questions and answers provided by a person appearing before the Inquiry can be used in any criminal proceedings, except in criminal proceedings where the person concerned is charged for perjury or similar charge committed during the giving of such evidence.
- A person appearing before the Inquiry is entitled to legal representation.
- Persons appearing before the Inquiry may only be cross-examined with the consent of the Chairperson.
- A person may be re-examined by his or her own legal representative for purposes of explaining evidence.
- The Chairperson or any other officer may, with a warrant, search any applicable premises or seize any applicable item.
The government notice giving effect to the Regulations provides that the provisions of the Commissions Act, 1947 shall apply to the Inquiry, including the provision that all the evidence and addresses heard by the Inquiry shall be heard in public, subject to the discretion of the Chairperson.
The Chairperson, with the assistance of the Department of Justice and Correctional Services will set up the structure of the Commission, including locating a venue and appointing evidence leaders and other key staff.
Possible Criminal Proceedings
The Inquiry has the power, in terms of the Terms of Reference, to refer any matter for prosecution, further investigation or for the convening of a separate enquiry to the appropriate law enforcement agency, government department or regulator regarding the conduct of certain persons. It is uncertain whether such recommendations are binding as our courts are yet to determine whether the recommendations of a commission of inquiry, are or will be binding on the recipient thereof as those of the Public Protector whose recommendations were held to be of a binding nature in South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others (393/2015)  ZASCA 156;  4 All SA 719 (SCA); 2016 (2) SA 522 (SCA).