By: Carl Niehaus
Recently, the Chief Justice of South Africa, Mr. Raymond Zondo, applied to the Gauteng High Court to amend his final report of the State Capture Commission, and in a jiffy the Deputy Judge President of the Gauteng High Court, Mr. Aubrey Ledwaba, gave the go- ahead for the corrections to be made, as well as for the late and illegal submission of the final report to be condoned.
The speed with which this application by Chief Justice Zondo was approved is remarkable in itself, when considering how slow the rusty wheels of justice usually turns in our country. It is even more remarkable when one considers the high profile of the State Capture report, the serious implications of its findings, as well as the serious implications of making amendments to the Report, and legitimising the existence of the Commission beyond the date of the 15th of June 2022, when it legally ceased to exist.
In his founding affidavit in support of the application, the Chief Justice presented three grounds. First, he said he wanted to correct grammatical and language areas, which he says will neither affect the substance of the report nor the findings, conclusions and recommendations. Second, the Chief Justice says that he wants to correct wrong figures that he says inexplicably appear as reflecting funds diverted to the Gupta Enterprise through State Capture and State Capture that were dissipated through local and international money
laundering networks. For this error, he blames the Commission’s personnel who compiled the report, as he gave them the correct document. Third, the Chief Justice says that he wants to include a document with analysis of the evidence and findings relating to two witnesses.
The most curious, and serious issue, is that the application also requested condonation for Zondo’s failure to submit the report of the Commission to the President on or before the 15th of June 2022, as ordered by the High Court in the last of the many extensions that he received.
In assessing, and acceding to his request, the Chief Justice asked the court to consider the following issues: The length of the delay, his explanation, that there will be no prejudice against any person, that the matter is of public importance and that his Commission has a “deeper public purpose, in times of widespread disquiet and discontent.” He further says that the report is important for uncovering corruption, fraud and maladministration, which he thinks will vindicate the Bill of Rights and democratic values.
There are many issues with the Chief Justice’s attempted to amend in the Report, and now has received the hasty condonation thereof. The most obvious, and critical, is that the State Capture Commission ceased to exist on the 15th of June 2022, the last day on which it was ordered by the High Court to submit its final report to the President. It is well-established in our law, per the decision in Stafford v Special Investigation Unit, that a Commission of inquiry is not a juristic person. Therefore, it cannot exist beyond its ‘expiry date. ’The consequence of this is that when the Commission ceased to exist, its office-bearers ceased to hold their positions in the Commission, including also the Chief Justice. Therefore, they could not legally issue a report purporting to be the report of the Commission, at a date AFTER the Commission ceased to exist.
In the case of Godongwana v Pillay, the High Court said that when a Commission ceased to exist, according to the date stipulated in the proclamation, it could not issue a report, as the report would be a nullity. There is no reason why the same legal standard must not be applied to the Zondo Commission. In this regard, one can go so far as to even point out that by seeking condonation for filling the last instalment of the Report beyond the 15th of June 2022, the Chief Justice is actually pre-empting any challenges to its legality. This is a disingenuous ‘masterstroke’. He is in fact retrospectively applying for his wanton illegal act to be legitimised after the act. What an extraordinary illegal and contemptuous thing for a Chief Justice, of all people, who is supposed to be the main Officer of the Law, upholding the law, to do!
If one were to assume, for the purpose of discussion only, that the State Capture Commission was even still legally in existence when it issued its final Report beyond the 15th of June 2022 deadline, there is yet another hurdle preventing the Chief Justice from amending its report. That hurdle is expressed in the doctrine functus officio, which means that when the mandate of an office bearer (such as the Chairperson of a Commission of Inquiry) or an agency (such as the State Capture Commission) has made its determination and its mandate has expired, that office-bearer or agency cannot make changes to its decision. Hence, the Chief Justice is now functus officio and is not legally permitted to amend his report.
Several review applications against the findings of the State Capture Commission are being prepared by some of the most eminent counsel, underscoring the fact that persons who are aggrieved by its Report are not taking it lying down. By having applied to amend his Report, and now having been given the permission to do so, the Chief Justice is essentially changing goal posts, making it unfair to people who are affected by its findings. Whereas the findings of the Commission are not binding on the President, they affect the character and integrity of people, who are judged, and at times very harshly so, in the court of public opinion. Some are facing further investigations, and even possible arrests based on the Commission’s findings and recommendations.
Let’s return to the spelling and grammatical errors that the Chief Justice wants to amend. How material are these to warrant an application for amendment, particularly when they are blamed on exhaustion? Is exhaustion a legally permissible ground for the Commission’s oversight in this regard? I certainly do not think so …
To aggravate matters, I have already alluded to spelling errors in the application for the now condoned amendment itself. One ends up wondering whether the Chief Justice will also be applying to correct the errors in his application. Interestingly, the application was drafted by some leading counsel. How they made such elementary errors on such a ‘weighty ’ application, is utterly confounding.
Last but not least, there is also the added issue that the Chief Justice, as Head of the Judiciary, has essentially been applying to his subordinates in the High Court for leave to amend his report. This is tantamount to the Master of the House asking the janitor to open the front door as he is walking in and handing over his coat. Of course the janitor will never refuse! If he ever dared, he would have been out of a job in a jiffy! We are dealing here with a totally unequal power relationship, and a colossal and fundamental conflict of interest. Surely this is the main reason why this application was so quickly approved!
Furthermore, in having rushed the granting of this application by Chief Justice Zondo the possibility of serious opposition was also undercut, as those who were considering opposing the application were still consulting, and considering their options. In having rushed through his approval, Mr. Justice Aubrey Ledwaba has basically undercut the possibility of opposition being mounted against the application.
All of this was – of course – is also nicely helped along by the President having already indicated his intention not to oppose the application to abide by the supplicant court ruling of condonation by Zondo’s subordinate.
In this context we can of course not forget the blatantly political statement that Chief Justice Zondo made about how President Ramaphosa’s having become President “saved the nation”. Expressing such sentiments by the Chief Officer of the Law in our land is entirely inappropriate, over and above the fact that the current state of our nation hardly supports the veracity of his sycophantic praise singing. (I am writing this article on a computer powered by a backup generator, load shedding by Eskom having once again plunged my suburb into darkness).
These two powerful gentlemen certainly know how to cover for each other, and scratch each others backs! The corruption of it all is of tragic Shakespearean proportions. As the sleepwalking Lady MacBeth exclaimed: “Out, damed spot, out. One, two, – why then ‘tis time to do’t. Hell is murky. Fie, my lord fie, a soldier and afeared? What need we fear who knows it when none can call our power to account? …”
When the Head of the Executive, and the Head of the Judiciary, are in criminal co-hoots – in what we euphemistically call our ‘Constitutional State’ – we have in reality nothing less than a Mafia State overlorded by self-serving criminals. I say this deliberately in the full knowledge of the seriousness of my statement – and challenge anyone to prove me wrong.
