It is no secret that when the Public Protector released her “State of Capture” Report in October 2016, the focus of her investigation was Mr Zuma. So, when she approached the Full Bench of the Pretoria High Court to order the appointment of a Judicial Commission of Inquiry, she intended the focus of the investigation to be Mr Zuma.
But, whether by clever design or inadvertently, Mr Zuma expanded the Commission’s Terms of Reference beyond the focus on him alone. Now the Commission’s Terms of Reference include the possible culpability of everyone from the President to ministers in his cabinet to officials in state-owned enterprises and organs of state to private individuals doing business with the state. They also cover a period wider than Mr Zuma’s presidency.
Wrongfooted, many of us are still stuck in the “State of Capture” Report and pay scant regard to the State Capture Commission’s Terms of Reference that have long expanded its scope. I suggest that this “tunnel vision” is responsible for the manner in which we view the work of the Commission and the Constitutional Court’s recent judgment thereon.
Tunnel vision is the tendency to view the world, and what happens in it, exclusively through a single or limited lens. It is a natural human instinct that is informed by what we read, see and hear often. If what I read everyday in newspapers and digital platforms, and see and hear everyday on television, is that Eeyore is a rogue and a criminal, eventually I shall believe that Eeyore is a rogue and a criminal.
If I should be asked to explain why I believe that Eeyore is a rogue and a criminal, the odds are better than average that my answer would be something like: “Well, because ‘everbody’ says so”. But who is “everybody”? “Well, there can’t be smoke without fire”. If I think like this, the possibility that the smoke may be nothing but thin dust particles or powder or mist or fog will not occur to me. Why? Because the lens through which I view the world and what happens in it is informed by my belief system, what I read, see and hear constantly. I believe that Eeyore is a rogue and a criminal because authority says so. Everyday I read and hear in public media that Eeyore is a rogue and a criminal. And so by that constant repetition, the image of Eeyore as a rogue and a criminal is affirmed in my mind. If so many people say Eeyore is a rogue and criminal, then Eeyore must be a rogue and a criminal.
There is another dimension. If Eeyore does turn out to be a rogue and a criminal, there is a possibility that Piglet, Winnie the Pooh and Tigger are also rogues and criminals. But because my lens is designed to focus only on Eeyore, and the information that I am fed everyday focusses exclusively on Eeyore’s alleged conduct, I have little (if any) means readily available to me by which my attention is drawn to the complicity of Piglet, Winnie the Pooh and Tigger in Eeyore’s criminal exploits. Even when I do stumble across information that links Piglet, Winnie the Pooh and Tigger in Eeyore’s criminal exploits, “everybody” either ignores it or dismisses it as “what-aboutism” or “gossip”. When that happens, I must accept that the allegations against Piglet, Winnie the Pooh and Tigger are mischievous.
Most people are happy to just go along with a generally held view in order to get along with people in their circle. Few people tend to take the trouble to interrogate the generally held view in order to satisfy themselves of its efficacy or truth. Fewer still – having satisfied themselves of the improbabilities of the generally held view – tend to seek to convince others that the generally held view is improbable and may even be incorrect.
If I stopped to interrogate the narrative that Eeyore is a rogue and a criminal in order to inform myself of the true facts, I may realise that it is not “everybody” or “so many people” who assert that Eeyore is a rogue and a criminal. It is a few people saying the same thing through numerous platforms, including me. I may also realise that I am, unwittingly, one of their many platforms through which they spread the narrative that Eeyore is a rogue and a criminal. But, because I am looking at the world through the lens that these few people have designed for me, and I am armed only with the information that they have selected for me, I have no other reference point by which to judge, independently, whether or not Eeyore is a rogue and a criminal.
Diversity of views
That is the irreparable danger of the media pushing the same hypothesis through numerous platforms without an honest and rigorous interrogation of that hypothesis. That is the pernicious danger that is created by the absence of a diversity of views (or lenses) in the media space. When we are fed the same uninterrogated hypothesis based on the same information about the same issues by almost all media houses in the country, there is little room for disagreement on those issues by people who consume the material that is published by the media.
By “diversity of views” I mean the diversity in editorial policy, political outlook, philosophical outlook and dominant culture. Occasionally inviting a different take in a supine media space on a particular topical issue does nothing to promote the diversity of views. What South Africa needs as a developing constitutional democracy is a vast media landscape comprising many independent media platforms that are free to focus on any issue of their choice without fear or favour to anyone. That is sorely lacking in the South African media landscape. Instead, the owners and publishers of those media platforms which buck the trend tend to be attacked in mainstream media publications. That this happens with hardly anyone – least the media watchdogs – batting an eyelid, is indicative of the threat of entrenchment of, what some have termed “the cabal”, materialising. It has the power to destroy a constitutional democracy which should, by design, be tolerant of diverse views in the media space.
The problem in so-called developed countries, like the United States and the United Kingdom, is somewhat of different kind. In those countries, there is less homogeneity on current socio-political affairs in mainstream media. For example, FoxNews has been unashamedly pro-Donald Trump while CNN has been unashamedly anti-Donald Trump.
The Constitutional Court judgment
I suggest that it is with a full appreciation of our natural tendency to “tunnel visioning” that we should view the judgment of the Constitutional Court in relation to the State Capture Commission and the work that it does in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Jacob Gedleyihlekisa Zuma (CCT/295)  ZACC 2 (28 January 2021).
That many of us are moved to celebrate a judgment that does not appear to be rooted in a deep enough consideration of all the cards on the table is a function of the tunnel vision that I described earlier. Tunnel vision seems to have driven many of us to see fire in one room of the house and dust particles in others even though there are sworn accounts that fire has been spotted in all the rooms of the house. This, I submit, is the mistake in the outlook that many South Africans generally have of the State Capture Commission and its work. It is also, I suggest, the mistaken approach by some of us that informs our celebration of the Constitutional Court judgment.
I propose only to highlight some of what I consider mistakes in the judgment of the Constitutional Court as I take the view that the judgment is a continuation of tunnel visioning.
The secretary of the State Capture Commission went to the Constitutional Court on an urgent basis to ask it to force Mr Jacob Zuma, a former head of state, to appear as a witness at the Commission and answer all questions put to him, provided that he is not obliged to answer questions, the answers to which may tend to incriminate him, and provided that he explains why the answer to each question may tend to incriminate him.
The Constitutional Court agreed. It ordered Mr Zuma to obey all summonses and directives lawfully issued by the Commission. It also ordered him to appear at the Commission and answer such questions as the answers to which may not incriminate him. It declared that Mr Zuma must explain why an answer to each question put to him may tend to incriminate him. It also ordered that Mr Zuma must pay the costs of the secretary’s application, despite Mr Zuma not having opposed the application. But how did it get there?
Direct access is a special dispensation by which an applicant is allowed to approach the Constitutional Court directly without first having to approach the high court and the Supreme Court of Appeal. It is allowed only if the judges of the Constitutional Court take the view that it is in the interests of justice that the case before them should be entertained without them having the benefit of the views of the lower courts on the issues that they are asked to decide.
In this case, the Constitutional Court criticized the Commission for its “maladroit” or clumsy approach in dealing with Mr Zuma. Essentially, it observed that the Commission created its own urgency where there should have been none. But, said the Constitutional Court, because the fault lies with the Commission and not the people of South Africa, the Commission must be allowed to approach the Constitutional Court directly as it would not be in the interests of justice for it first to approach the High Court.
This is an extraordinary piece of reasoning. The public was not before the Constitutional Court; the Commission was. The Commission did not approach the Constitutional Court in the public interest. It did so in its own name. On the Court’s own reasoning, the Commission’s lawyers committed numerous “blunders”. To say that these “blunders” and “the lack of diligence on the lawyers’ part cannot be attributed to the public”, is like saying the shortcomings of an applicant in an application brought in the public interest cannot be attributed to the public, and then grant the application despite the applicant’s blunders. Applying that same reasoning in the determination of Ngalwana’s amicus application, it is difficult to see why it was not granted. But that is not the law as I understand it. That is why the reasoning is troubling me.
The standard for direct access in the Constitutional Court is “interests of justice”. The question is: whose interests of justice? The Constitutional Court appears to have ranked the interests of the Commission above those of Mr Zuma. In fact, it appears to have focussed exclusively on the interests of “the public” and ignored those of Mr Zuma. Why? Well, because he did not bother to show up.
That, in my view, is a curious approach. Final relief at the Constitutional Court is usually granted where the applicant has persuaded a court that he is entitled to the relief sought. Many unopposed applications are refused because the applicant has not persuaded the court that he is entitled to the relief sought, not because the respondent has not bothered to show up. Unlike the High Court, the Constitutional Court does not grant default judgment. In other words, it does not grant relief simply because the respondent has not bothered to show up or file opposing papers. The applicant must still prove its case.
Danger of Tunnel Visioning
Following what appears to be a tunnel vision that is informed by what we are constantly reading about Mr Zuma, it seems to me that the Constitutional Court has ignored Mr Zuma’s interests and assumed his “rogue” status. Maybe he should be classified as a rogue if the allegations against him are proven true. It seems, like many of us, the Constitutional Court may have prejudged the presence of fire where it sees something resembling smoke, but which may turn out to be dust or powder or mist or fog as this has not yet been tested. For example, it says:
“It must be plainly stated that the allegations investigated by the Commission are extremely serious. If established, they would constitute a huge threat to our nascent and fledgling democracy. It is in the interests of all South Africans, the respondent included, that these allegations are put to rest once and for all. It is only the Commission which may determine if there is any credence in them or to clear the names of those implicated from culpability.”
The Court is correct. However, although the Court was approached to deal only with Mr Zuma, it was presented with a golden opportunity to broaden that lens in accordance with the Commission’s Terms of Reference. It cannot validly and reasonably say that the broader lens was not presented to it. Even if it considered Ngalwana’s amicus application to be flawed in its presentation of the wider lens (as it did), that does not present the Constitutional Court with an impediment to considering matters that are relevant in terms of the Commission’s Terms of Reference. South African courts, including the Constitutional Court itself, have said that courts are free of their own accord to raise relevant points of law and are not precluded from doing so simply by the litigants not raising those issues. Therefore, the dismissal of Ngalwana’s amicus application which broadens the lens did not mean that the Constitutional Court was precluded from using that wider lens of its own accord to facilitate the Commission’s work. This is particularly important in light of the Constitutional Court itself having characterized Judicial Commissions of Inquiry as serving a “deeper public purpose” in an earlier judgment.
Clearly, the Constitutional Court’s focus is exclusively on allegations against Mr Zuma. Why the allegations made against President Ramaphosa, Mr Gordhan, and others are not, if established, “a huge threat to our nascent and fledgling democracy”, the Constitutional Court does not say. Why? Well, because its lens is not looking there. It could afford to ignore allegations against these others because it dismissed the application that provided that wider lens: Ngalwana’s amicus application.
But is the exclusive focus on Mr Zuma justified? I suggest not. That is not to say he must not face his demons at the Commission. Far from it. But the Commission’s Terms of Reference are much wider than what the Public Protector intended in her “State of Capture” Report in October 2016.
We cannot ignore the expanded Terms of Reference. The problem with our tunnel vision in the way in which we look at the State Capture Commission and the judgment of the Constitutional Court is that we are still stuck in the Public Protector’s focus which has long been expanded by the Commission’s Terms of Reference. It seems to me that is the mistake that many of us, including the Commission and the Constitutional Court, are making. That is why allegations concerning people who are not perceived as falling within Mr Zuma’s camp or faction are not pursued as vigorously as allegations concerning those viewed through the Public Protector’s lens. This is wrong.
The case before the Constitutional Court was about accountability. The Constitutional Court says it was about the interpretation of the Commissions Act, 1947. But the Commissions Act was simply a tool by which to achieve accountability. It is not an end in itself. In any event, the Constitutional Court’s take on what the case was about is not supported by the papers and submissions made to it on behalf of the Commission. It is clear from the Commission’s own papers and heads of argument that it considered this case as being about accountability. The very opening sentence in the heads of argument filed on its behalf says:
“This application is fundamentally about the enforcement of the constitutional principle and duty of accountability.”
The Commission even quotes a 2013/2014 judgment of the Constitutional Court which talks about the “deeper public purpose” of Judicial Commissions of Inquiry. The exclusive focus on Mr Zuma is not consistent with that purpose. Commissions of Inquiry are generally designed to help resolve societal problems at a policy level, and ensure that those problems do not recur. There are numerous players in that exercise. The Commission’s Terms of Reference, and the allegations that have emerged, point to problems that cover the field. These include, among others
- The failure of parliamentary oversight
- The failure and complicity of cabinet in possible wrongdoing
- The role of the media or some in the media in facilitating state capture
- The possible role of the judiciary or some in the judiciary
The list is not exhaustive. We have heard allegations of judges being bribed, journalists being on the payroll of the State Security Agency, a serving President having interfered with the operations of a state-owned enterprise and enriched himself. These are serious allegations. Where was parliament? What oversight role did it play? Why are implicated cabinet ministers and the President not called to be questioned at the Commission on these allegations while there is enough time to have them thoroughly investigated and interrogated?
These are some of the questions that do not sit comfortably with the lens that is the Commission’s Terms of Reference. We ignore them because we are still trapped in the lens of the Public Protector, and one that has long been replaced by the Terms of Reference. According to the Terms of Reference, everyone must account. The Constitution demands it in s 195. It is, in fact, a foundational principle of the South African Constitution, the Supreme Law. According to the Public Protector’s lens, only Mr Zuma and those associated with him as rogues must account. But the Public Protector’s lens is not law. The Terms of Reference are.
Calling for other implicated people to account is not “what-aboutism”. It is a function of remaining true to the Law. The South African Constitution says everyone is equal before the law, has equal protection and benefit of the law. If we allow the Commission to call only some implicated people to account, but ignore other implicated people, both we and the Commission will be running foul of the Constitution. If Eeyore is alleged to have stolen bread from the poor, he must be called to explain himself. If Piglet is alleged to have stolen bread from the poor, he, too, must be called to explain himself. This is a basic application of the principle of equality that is enshrined in the South African Constitution. It cannot be said that when Eeyore is called upon to explain himself, he is rightly called upon to account, but when Piglet is called upon to explain himself, that is “what-aboutism”.
Many people say President Ramaphosa has already said he will appear at the Commission. Indeed, the Commission Chair has also indicated that the President’s appearance is “likely to be in March”. But this misses the point entirely. On its own version in its Constitutional Court papers, and in public statements made by the Chair, the Commission intends wrapping up the hearing of oral evidence by the end of March 2021. That being so, even if the President does appear in March, there will be little time left for parties who might wish validly to apply to the Chair for an opportunity to test his evidence. It thus seems likely that the President will simply appear at the Commission to make a speech, thank the Commission for its hard and diligent work, look presidential, and then step off what will for him be more of a podium than a witness stand, possibly to rapturous applause.
Some people will say but Mr Gordhan has already appeared at the Commission and has even been cross-examined. Yes. But has he been questioned in the open on the issue of how a private citizen and businessman got to hear about Mr Gordhan’s imminent dismissal as Minister of Finance before the President had announced it? No. Has he been questioned in the open on what he meant by his statement to a Parliamentary Committee that not all corrupt conduct is necessarily criminal conduct? No. Both these issues form part of the Commission’s Terms of Reference. In its Constitutional Court papers, the secretary of the Commission says Mr Gordhan has filed a “sworn response”. What is that response? Why is it not publicly interrogated? Why is the Commission keeping it under wraps? These are important questions that need answering.
An amicus curiae is a “friend” of the court. A party who wants to be admitted as a friend of the court must first notify the main litigants and then bring an application to court to be admitted as such. The fact that a litigant opposes the application to be admitted as a friend of the court does not mean that the court will refuse admission. The role of the friend is to assist the court on matters that none of the main litigants address in their papers. A friend is not allowed to take the side of the one litigant or the other. A friend is supposed to be impartial and is there only to assist the court in its deliberations on the issues before it. A friend is not allowed to repeat the argument already covered by the main litigants and which the main litigants can argue themselves. The rules of the Constitutional Court allow a friend to introduce new facts and documents which have not been pleaded by the main litigants, provided those facts and documents are relevant to the determination of the issues before court and are not in dispute by any of the parties. That, in a nutshell, is the landscape in which a friend of the court operates.
The Constitutional Court refused to admit Ngalwana as friend of the court but admitted CASAC and the HSF. The reasons for its decision are contained in paragraphs 75 to 79 of the judgment. Essentially, it says Ngalwana introduced new facts and asked for new relief. It also hints that because Ngalwana did not seek to enforce rights in the Bill of Rights, he cannot claim to be approaching the Court in the public interest.
The issue before the Constitutional Court in this case was, principally, accountability within the context of the Commission’s Terms of Reference. It is a fact that President Ramaphosa has been implicated by Mr Matshela Koko in interference in the affairs of a state-owned entity (Eskom). That issue falls within the Commission’s Terms of Reference. It is a fact that Mr Gordhan, Mr Mbalula and Mr Rupert have been implicated in a matter that falls within the Commission’s Terms of Reference, namely, the dissemination of confidential cabinet appointment to unauthorised persons before that decision had been officially made public.
These are relevant facts in the determination of the Commission’s application not only because they involve matters that form part of the Commission’s Terms of Reference but also because Mr Zuma stands accused precisely in relation to these matters. They have not been disputed at the Commission by any of the persons implicated. That is why it is important to give them an opportunity to address them in that forum. It is called accountability.
In any event, these are not new facts. They are new only insofar as they are not contained in the Commission’s papers filed in its application. But they are on record in the Commission’s transcripts that cannot reasonably be ignored when determining accountability in the context of what the Constitutional Court has termed, in its 2013/2014 judgment penned by Justice Moseneke, the “deeper public purpose” of a Judicial Commission of Inquiry.
It is clear from Even Ngalwana’s amicus application that he sought to invoke the right to equality in the public interest. He expressly said so. The Constitutional Court does not explain how that requirement is not met in Ngalwana’s amicus application. The absence of rigour in the assessment of this question is, in my view, disappointing.
The Constitutional Court granted amicus status to CASAC and the HSF. It did so in one paragraph:
“ Although the applications by CASAC and the Foundation raise in part argument that is not relevant to the issues we are called to decide, they do contain submissions which are relevant to some of the issues. And those submissions differ from those advanced by the Commission. At face value the relevant submissions look useful. Consequently, CASAC and the Foundation should be admitted as amici curiae.”
CASAC’s application centred around Mr Zuma’s entitlement to invoke the privilege against self-incrimination that s 3(4) of the Commissions Act confers on witnesses who appear before a Commission of Inquiry. The HSF focused on the centrality of the rule of law. While CASAC’s argument opposed the argument advanced on behalf of the Commission, the argument of the HSF was in broad strokes advancing, in my view, trite principles of constitutional law. While one could appreciate why the Constitutional Court would entertain the CASAC argument – if only to dismiss it – it is not clear to me why the HSF argument warranted the court’s attention, in preference over one that invokes equality and the constitutional principles of accountability, openness, responsiveness and transparency. The Constitutional Court does not explain in relation to what specific issues in the Commission’s application the HSF argument bears relevance.
With this judgment, regrettably, what was hitherto a clear picture as regards what qualifies one to be admitted as an amicus has just become fuzzy.
The Right to Privilege Against Self Incrimination
CASAC advanced an argument that sought to have Mr Zuma denied the right to invoke the privilege against self-incrimination despite s 3(4) of the Commissions Act, 1947 specifically conferring that right on every witness at a Commission of Inquiry. The Constitutional Court dismissed the argument. It is not clear how a different result on this argument could have been expected.
The Constitutional Court made it plain that the privilege is not there merely for the asking. The witness must justify, in relation to each question, why an answer to that specific question would result in him incriminating himself. This is not new. The Constitutional Court had already so ruled in Nel v Le Roux 1996 (3) SA 562 (CC) at paras -. But the challenge in Mr Zuma’s case, in my view, is likely to come if he declines to answer specific questions put to him at the Commission on the ground that President Ramaphosa’s amendments to the Commission’s Regulation 11 on 28 July 2020 – which are already in force – effectively violate the privilege against self-incrimination because those amendments allow the use of evidence given at the Commission at the witness’ subsequent criminal trial. That is at least one interpretation of the President’s amendments. That issue will have to be resolved by the courts – including the Constitutional Court – before it can confidently be said that Mr Zuma is obliged to answer all questions the answers to which the Commission believes are not incriminating to Mr Zuma.
The question then becomes whether the Commission can approach the Constitutional Court directly where there is a dispute between the Commission, on the one hand, and Mr Zuma and his legal team, on the other, regarding whether an answer to a specific question will tend to result in Mr Zuma incriminating himself.
Costs in litigation are usually awarded against the unsuccessful party based on the principle “the costs follow the cause”. That means the unsuccessful party pays the litigation costs of the successful party. There are exceptions to this principle. One of them is that when a party litigates unsuccessfully against government in any of its forms – be it a national department, provincial government, municipality or any organ of state – and raises issues of constitutional import, the court usually does not award costs against that party in favour of government. The reason for this is that courts do not want to dissuade private parties from challenging government on what they consider as being unconstitutional conduct.
But where the party litigates frivolously and vexatiously, or conducts litigation in an inappropriate manner against government, the court could in its discretion award costs against that party in favour of the successful government. Costs are also usually awarded against a party where the successful party had no choice but to approach the court for relief in order to stop the unconstitutional conduct of the unsuccessful party.
The Commission is an organ of state. It performs a public function, at the behest of the President, in terms of legislation. Mr Zuma did not approach the Constitutional Court. The secretary of the Commission, an organ of state, did. He did not litigate frivolously or vexatiously at the Constitutional Court against an organ of state: the Commission. But the Constitutional Court found that because Mr Zuma behaved in a manner that is “reprehensible” in his dealings with the Commission, he must pay its costs. In my view, again, this is indicative of the Constitutional Court having assumed Mr Zuma to be the rogue and punishing him for it. But what in Mr Zuma’s conduct is evidence of roguery? From what the Constitutional Court tells us, it seems not impressed with what it considers his dilatory conduct and generally unco-operative conduct towards the Commission.
During the hearing of the application on 29 December 2020, some of the Justices appeared, from my observation, visibly (and audibly) peeved at Mr Zuma sending them a letter saying he will not participate in these proceedings. It appears they considered anything short of a formal “notice to abide” as constituting disdain for the Court. [A “notice to abide” is a formal notice filed by a party informing the Court and the other parties that he does not oppose the relief sought and will comply with any order that the Court may make.] If judicial pique was a factor in the costs award against Mr Zuma, that in my view would be unfortunate and regrettable. A court should not grant orders out of spite.
But why did the Constitutional Court not consider that all Mr Zuma may have been doing was assert his rights on legal advice? Well, the answer is that it was not looking at him through that lens. Even if it did, it does not like his approach. But the Constitutional Court has itself said, in another case, that the fact that a court does not like the approach adopted by a litigant is not a valid basis for deprecating the litigant’s approach or decision (Albutt v Centre for the Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC) at para ). So, what is it about Mr Zuma’s approach that renders that principle inapplicable? Tunnel vision. The Constitutional Court seems to have decided that Mr Zuma is a rogue. So, it sees everything he does through that lens. That is why he must pay the Commission’s costs, even though he is not even a litigant in the Constitutional Court.
Also curious is the argument by the Commission that it had no choice but to approach the Constitutional Court in order to bring Mr Zuma to heel. The Constitutional Court was not impressed by this argument. It pointed to numerous instances where the Commission could have dealt with Mr Zuma effectively without having to approach the court. It characterized the approach of the Commission’s lawyers as “maladroit”. So, when did the Commission’s approach, in the Constitutional Court’s mind, metamorphose from being “maladroit” to warranting an adverse costs order against a person who did not oppose the relief sought against him by a “maladroit” Commission? Tunnel vision, I venture.
Is the Constitutional Court Right
In my view the Constitutional Court is correct in some respects but I find it mistaken in others.
Firstly, there can be no question that a former head of state must be held to account for his conduct while in office. So, I submit that the Court was right in directing that Mr Zuma appears at the Commission to answer such questions as he may, by law, be required to answer. For reasons already discussed above, this will be tricky, litigious and time consuming.
Secondly, the fly in the ointment however is this. Mr Zuma has a review application pending in the high court against the refusal of the Commission Chair to recuse himself. Putting aside the merits of the recusal application for the moment, and the merits of the review application, how does the Commission validly compel Mr Zuma to appear before it and answer questions while that review application has yet to be determined by the high court and, possibly, the full bench, the Supreme Court of Appeal and, ultimately, the Constitutional Court? The Constitutional Court has not pronounced on this quandary in its judgment. It has not said Mr Zuma is obliged to appear at the Commission and answer questions regardless of the pending review application.
Thirdly, the direct access threshold (interests of justice) is notoriously low in the Constitutional Court. In my assessment over the years and on a conspectus of Constitutional Court jurisprudence in this area, interests of justice can be anything that the Constitutional Court wants, depending on the prevailing appetite for getting to grips with the issues involved in any particular case.
Fourthly, many allegations have been made against Mr Zuma at the Commission. Many of these allegations are unsubstantiated; some are classic hearsay; others, at face value, defy credulity. But all these types of allegations are admissible in a Judicial Commission of Inquiry because a Commission is not bound by the strict laws of evidence that apply in courts of law. There is case law to this effect (Bell v Van Rensburg NO 1971 (3) SA 693 (C); S v Mulder 1980 (1) SA 113 (T) and S v Sparks NO and Others 1980 (3) SA 952 (T); Bongoza v Minister of Correctional Services and Others 2002 (6) SA 330 (Tk).
I have argued, on a different occasion, that this is a flaw in the fact-finding mechanism of Commissions of Inquiry that can be open to abuse, as is clearly the case in this Commission where people take the stand to make serious allegations, providing no proof of their allegations, and are not required by the Commission to provide such proof, the reasoning being that the implicated person will have an opportunity to present his or her side of the story (See https://www.anchoredinlaw.net/wp-content/uploads/2019/02/Commissions-of-Inquiry-1.pdf). Until then – if that opportunity ever comes – the general public that is entranced by some of these serious allegations reaches conclusions about persons implicated by such allegations and find people guilty in the court of public opinion. This is not true only of Mr Zuma. It is also true of Mr Ramaphosa, Mr Gordhan and others
Flawed as the process is, Mr Zuma must account for his conduct as President. But then so must everyone else implicated in such manner at the Commission. That is the balance that the Commission appears to have missed, and continue to miss, because it is looking at things through a limited lens.
Unfortunately, it seems to me the Constitutional Court has ignored relevant material because of tunnel visioning. A better example of predilection for technical niceties in its dismissal of Ngalwana’s amicus application one would struggle to find. The Constitutional Court has itself cautioned against taking refuge from difficult constitutional questions in technical niceties. It would now seem that technical niceties are welcome in cases for which the Constitutional Court has an appetite, but not so where it has none.
Has this judgment taken the Commission out of the “maladroit” woods in its battle with Mr Zuma? I would not bet on that. Will it take off the blinkers and use a wider lens provided by the Terms of Reference? Well, given the little time that remains for oral evidence, this is doubtful. In that event, it seems fairly certain that the Commission’s report will be challenged on review if its recommendations are informed by its tunnel vision.