ON WITH THE NEW - THE STATE OF CAPTURE COMMISSION OF INQUIRY
The President has announced, albeit with the persuasion of the Gauteng Division, Pretoria High Court, (the Court) the appointment of a Commission of Inquiry (the Commission) regarding complaints and allegations raised in the erstwhile Public Protector’s State of Capture Report. This, bizarrely, despite having lodged an appeal against the Court’s order which found the State of Capture Report binding.
Presumably the legal doctrine that no person can be allowed to take up two positions inconsistent with one another applies – and since he has announced the Commission before the appeal has been heard, it stands to reason that the appeal falls away. While political analysts may ponder as to the motivation behind the President’s seemingly contradictory legal positions on the matter, it is apparent however, that the Commission will go ahead.
The judge selected by the Chief Justice, in line with the Court’s directive and appointed by the President, is none other than Deputy Chief Justice Zondo. The selection of a senior judge of the highest court in the land, is perhaps an indication of the seriousness with which the Chief Justice views the need to address the grave allegations directed at South Africa’s first citizen, his family and close friends in the State of Capture Report.
The President’s announcement was not accompanied by the terms of reference, which, in accordance with the Commissions Act of 1947, the President is required to publish by way of proclamation in the Government Gazette. As such, the extent and scope of the inquiry remains unknown. The court order however, provides that “the Judge who is to head the commission of inquiry is given the power to appoint his/her own staff and to investigate all the issues using the record of the Public Protector's investigation and the State of Capture Report, No 6 of 2016/17 as a starting point”.
Should the President be acting in terms of the court order, then it would appear that, at the very least, the inquiry’s scope will include the President’s reportedly unethical dealings involving the Gupta family. The current Public Protector has taken the position that the terms of reference of the inquiry should be widened “to ensure that no stone is left unturned in so far as the allegations of state capture are concerned, and in order to avoid any further allegations of state capture being lodged with the Office of the Public Protector.”