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[2020] ZAGPPHC 74
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Chairperson of the Judicial Commission of Inquiry into State Capture v President of the Republic of South Africa and Others (94785/2019) [2020] ZAGPPHC 74 (24 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG, PRETORIA
JUDGMENT
Case No: 94785/2019
24/2/2020
In
the matter between:
CHAIRPERSON OF
THE JUDICIAL COMMISSION
APPLICANT
OF
INQUIRY INTO ALLEGATIONS OF STATE CAPTURE,
CORRUPTION
AND FRAUD IN THE PUBLIC SECTOR
INCLUDING
ORGANS OF STATE
And
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
1
ST
RESPONDENT
PUBLIC
PROTECTOR
2
ND
RESPONDENT
ECONOMIC
FREEDOM FIGHTERS
3
RD
RESPONDENT
UNITED
DEMOCRATIC MOVEMENT
4
TH
RESPONDENT
CONGRESS
OF THE
PEOPLE
5
TH
RESPONDENT
DEMOCRATIC
ALLIANCE
6
TH
RESPONDENT
VYTJIE
MENTOR
7
TH
RESPONDENT
COUNCIL
FOR THE ADVANCEMENT OF THE SOUTH
AFRICAN
CONSTITUTION
8
TH
RESPONDENT
Neutral citation:
The
Chairperson of the Judicial Commission of Inquiry into State Capture
v President of the Republic of South Africa
(94785/2019)
[2020] ZAGP (24 February 2020)
Coram:
Hughes J
Heard:
11 February 2020
Delivered:
24 February 2020
Summary:
Procedure - the requirements
necessary when seeking an extension in terms of rule 27(1) of the
Uniform Rules of Court - in the case
where a prescribed period is set
out in a court order.
ORDER
1.
This
matter is urgent and, to the extent necessary, dispensing with the
ordinary forms and notices.
2.
The
period of 180 days referred to in paragraph 4.3 of this Court's order
in the matter of
President
of
South Africa v Office of the Public
Protector and Others
2018 (2) SA 100
(GP) - being the period for the Commission of Inquiry appointed by
the President of the Republic of South Africa pursuant to that
order,
to complete its work and present its report with findings and
recommendations to the President, which period has subsequently
been
extended by orders of this Court is further extended - by a period of
thirteen months from 1 March 2020 to 31 March 2021.
This is the final
extension.
3.
Insofar
as may be necessary, the first Respondent, the President of the
Republic of South Africa, is directed to take such steps
as are
necessary to give effect to the order referred to in paragraph 2
hereof, including the amendment of paragraph 6 of Proclamation
3 of
2018 (published in Government Gazette No. 41403 of 25 January 2018),
to reflect the extended period referred to therein.
4.
Each
party is to pay their own costs.
JUDGMENT
Hughes
J
Background
[1]
On 17 December 2017 this court granted
an order that the President of the Republic of South Africa establish
a judicial commission
of inquiry to investigate issues as recorded by
the investigations of the Public Protector and recorded in her State
Capture report.
In terms of section 84 of the Constitution the
Judicial Commission of Inquiry into Allegations of State Capture,
Corruption and
Fraud in the Public Sector including Organs of State
(the Commission) was thus established. The Commission was tasked to
complete
all its work within 180 days. The applicant, the Deputy
Chief Justice of the Republic of South Africa was appointed as
Chairperson
of the Commission.
[2]
The initial lifespan of the Commission
of 180 days was insufficient and the applicant sought an extension to
complete the work of
the Commission on 23 July 2018, which was
granted on 2 October 2018. The period of extension spanned over
twenty-four months from
March 2018 to February 2020. The applicant
now seeks a further extension, even though the Commission has done
extensive work since
March 2018, 'it has not completed its work and
will not have completed it by the end of February 2020.'
[1]
In this urgent application the extension sought is for a period of
ten months, that is, from the end of February 2020 to 31 December
2020.
[3]
The order sought by the applicant in the
notice of motion is as follows:
'(1) Permitting this matter
to be heard as one of urgency and, to the extent necessary,
dispensing with the ordinary
forms and notices.
(2)
Extending the period of 180 days
referred to in paragraph 4.3 of this Court's order in the matter of
President of South Africa v Office of
the Public Protector and others
2018
(2) SA 100
(GP)- being the period for the Commission of Inquiry
appointed by the President to the Republic of South Africa pursuant
to that
order, to complete its work and present its report with
findings and recommendations to the President, which period has
subsequently
been extended by order of this Court - by a further
period of ten months from 1 March 2020 to 31 December 2020, or such
other periods
as may be determined by this Court.
(3)
Insofar as may be necessary, directing
the First Respondent, the President of the Republic of South Africa,
to take such steps as
are necessary to give effect to the order
referred to in paragraph 2 hereof, including the amendment of
paragraph 6 of Proclamation
3 of 2018 (published in Government
Gazette No. 41403 of 2018), to reflect the extended period referred
to therein.
(4)
Ordering those Respondents who oppose
this application to pay the costs hereof, jointly and severally, the
one paying the other
to be absolved.
(5)
Granting further or alternative relief.'
[4]
The respondents are as set out above and
I hasten to add that no opposition was filed by any of the
respondents. However, the first,
second and eighth respondents filed
notices to abide the court's decision. The second (Public Protector)
and eighth respondents
{Council for the advancement of the South
African Constitution (CASAC), filed affidavits setting out the basis
upon which they
were prepared to abide this court's decision. Both
did not contest the issue of this application being urgent. Even so,
I must
be satisfied that the matter warrants an audience in the
urgent court.
[5]
The applicant submits that only at the
end of the public hearings on 6 December 2019 was he able to
ascertain what work was still
required and the estimated duration it
would take to do so. He further submits that, if the Commission's
work is halted abruptly,
this will result in a 'nugatory' of the work
already conducted. Taking the foresaid into account I view this
matter as urgent.
I am also mindful that the investigations,
testimony and work of Commission is of national importance and the
completion thereof
is a matter of urgency.
The
case of the Applicant
[6]
This application is in terms of rule
27(1) of the Uniform Rules of Court.
[2]
The applicant contends that even though the Commission has conducted
hearings and heard extensive testimony since 20 August 2018,
the work
of the Commission is not complete and would not be complete by end of
February 2020, which was the previous extension
granted. To this end,
the applicant seeks a further extension of ten months
[3]
(1March 2020 to 31 December 2020) 'to complete its work and present
its report with findings and recommendations to the President'.
[4]
[7]
The applicant sets out what work has
been done and I do not deem it necessary to list the work already
done by the Commission. What
is pointed out by the applicant is that
from August 2018 to December 2019 no fewer than 154 witnesses had
testified before the
Commission and this is indicative of the
enormity of the work already done by the Commission. He explains that
the outstanding
work yet to be conducted by the Commission is as
follows:
(a)
Phase
II in respect of evidence from the state owned entities (SOE's) i.e.
Eskom, SAA, SABC, Denel, SA Express, Transnet;
(b)
With
regards to PRASA, Phase I needs to commence as no evidence has been
led;
(c)
A
further 15 witnesses need to give evidence in the Free State Province
alleged irregularities and corruption cases in government
projects
and tenders and likewise in the department of the Free State
Provincial Government;
(d)
The Commission needs to determine
whether there was any failure by Parliament to properly perform its
oversight obligations;
(e)
Investigations needs to be conducted as
regards the extent that the law enforcement entities such as the
National Prosecution Authority
(NPA), the Directorate for Priority
Crime Investigation (HAWKS) or the Special Investigation Unit (SIU)
they may have also been
'captured'.
[8]
The applicant opines that two spheres of
corruption and fraud exits, the one being in terms of the Public
Protector's remedial action,
which he equates to corruption and fraud
under state capture. On the other hand, there is corruption and fraud
which falls under
the court order of 17 December 2017. The latter,
the applicant compares to general corruption and fraud unconnected to
state capture,
which falls outside the scope of that contemplated by
the Public Protector's remedial action. The applicant contends that
the general
corruption and fraud 'may well have to be referred to
another forum or agency for investigation or further
investigation'.
[5]
[9]
The applicant was at pains to point out
that taking into account the work that still needed to be done by the
Commission, if the
Commission sought to comply with its mandate and
investigate 20 national offices, 80 provincial departments, 20 SOE's
and 200 municipalities,
it would 'need more than two years - probably
not less than four years' to complete its mandate. Having said the
aforesaid he still
submits that there are sufficient grounds to
justify an extension of ten months.
[6]
Critically, he acknowledges that he should thus be asking for a much
longer extension than the ten months that he seeks.
[7]
[10] He explains
that he only seeks ten months because he may request of the first
respondent to amend
the terms of reference in so far as they relate
to issues that fall outside those contemplated by the Public
Protector's remedial
action. This request would be in line with
paragraph 2 of the Terms of Reference of the Judicial Commission of
Inquiry into the
Allegations of State Capture, Corruption and Fraud
in the Public Sector including Organs of State.
[8]
If his request is granted by the first respondent he would be able to
complete the Commission's work in the additional period of
ten
months, so he submits.
[11]
The alternative, proposal to complete
the work of the Commission in the ten months, is to invoke paragraph
7 of the terms of reference,
which permits 'the Commission to refer
any matter for prosecution, further investigation or the convening of
a separate enquiry
to appropriate law enforcement agencies,
government department or regulator regarding the conduct of certain
person/s'. The Commission
would then be relieved of some of the work
load.
[12]
It will be remiss of me if I did not
point out that even though the applicant contends that there are
alternatives to lighten the
Commission's load, he persists that
'should it turn out that some more time is required than the 10
months, I will make another
application to this Honourable Court for
an extension'.
[9]
This extra time above the extension of ten months sought is purely
for the sake of completing the report to be submitted to the
first
respondent and he anticipates that an extra three months would be
required.
[13]
In view of the fact of that the
Commission is tasked to investigate two types of corruption and fraud
as explained above. The applicant
submits that there are two ways
that the Commission could approach its work going forward after
February 2020. If both types of
corruption and fraud are dealt with
by the Commission, that is, general corruption and that within the
remedial action of the Public
Protector, it would then take the three
to four years he speaks of above to complete the work of the
Commission. The other option
favoured by the applicant requires doing
both, that requested by the Pubic Protector's remedial action and any
other issues which
fall outside the remedial action, but within the
terms of reference of the Commission, which the applicant considers
appropriate
to be dealt with by the Commission. The applicant submits
that this could be achieved if he approaches the first respondent to
amend the terms of reference or in terms of paragraph 7 refer those
issues which he considers appropriate to law enforcement agencies
or
recommend that they be the subject of another inquiry. The applicant
warrants that this will ensure completion of the work of
the
Commission within the ten months, and if required a further three
months to complete the report.
[10]
The case of the Public Protector
[14]
As alluded to above both the Public Protector and CASAC were the only
respondents who sought
to abide this court's decision with
stipulations. The Public Protector conceded that she supported the
main thrust of the application,
however she requested that a
prescribed minimal period be granted for the extension. She went
further to request that 'the President,
Chairperson and Public
Protector must be ordered or otherwise encouraged to produce a broad
framework for the redefinition of the
scope and timelines for the
Commission'.
[11]
[15]
The reasoning advanced by the Public
Protector for the stipulation sought was that it would be a disaster
if the Commission was
allowed to run for another four to five years
as intimated by the applicant. The Public Protector contends that
since the Commission
commenced it has failed to achieved its intended
outcome, at a cost of billions of Rands in the process.
[16]
The Public Protector was at pains to
point out that the undue delays to finalise the Commission's work is
due to its failure to
give effect to the introduction to paragraph 1
of the terms of reference which states:
'The
Commission shall inquire into, make findings, report on and make
recommendations concerning the following,
guided by the Public
Protector's state capture report
, the Constitution, relevant
legislation, policies and guidelines
as well as the order of the
North Gauteng High Court of 14 December 2017 under case number
91139/2016.'
[Not my Emphasis, that of the Public Protector]
The
case of CASAC
[17]
CASAC proposed that an extension of
thirteen months be granted instead of ten months. CASAC reasoned that
the thirteen months would
be inclusive of the three months that the
applicant had proposed he would require to complete his report.
However, CASAC required
that this be endorsed a final extension, as
they argued that this is what was sought by the applicant in its
founding affidavit
and prayer 2 of the notice of motion - 'to
complete its work and present its report with findings and
recommendations to the President'.
The addition of three months
extending the period to thirteen months ending 31 March 2021, was in
line with the submissions made
by the applicant in his founding
affidavit at paragraph 45.
Analysis
[18] As stated
above this application for an extension of time prescribed by an
order of this court
is in terms of rule 27(1) of the Uniformed Rules
of Court and as there is no agreement between the parties, this court
may upon
application on notice and on good cause shown, grant an
extension. Which extension would allow a party to act or take any
further
steps in connection with any proceedings of any nature
whatsoever upon whatever terms the court seem meet.
[12]
[19]
There is no dispute that the extension ought to be granted. However,
a common stipulation for
the granting of such extension permeates
from both the Public Protector and CASAC, and that is, that it be the
last extension.
I am mindful of the fact that I have a wide
discretion
[13]
to determine if the applicant has shown good cause for the extension
sought and that this discretion must take cognisance of the
merits of
the matter seen as a whole.
[14]
[20]
As set out in the applicant's notice of motion, and the case made out
for the relief sought in
the founding affidavit, it is apparent to me
that the applicant has made out a case for the extension 'to complete
its (the Commission's)
work and present its report with findings and
recommendations to the President'.
[15]
In addition, there is also the likihood of a further extension of
three months being sought, to complete the Commission's report.
I am
cognisant of the fact that the applicant sees it most likely that he
would return to court to seek a further three months.
[21]
It is trite that the exercise of my
discretion must be judicious and take into account whether the
interest of justice would be
served by the granting of the extension
sought.
[16]
The extension sought is not contested and a case has been made out,
however there is also a further extension of three months inferred.
In my view, a case has been made out for the ten months, and an
anticipated case has been advanced for a further three-month
extension
to complete the report.
[22]
Counsel for the applicant did not take
issue with the suggestion from CASAC of an extension of thirteen
months. However, did take
issue with the fact that the Public
Prosecutor and CASAC sought that this extension ought to be endorsed
as a final extension.
[23]
In my view, there can be no bar in
granting the applicant an extension of thirteen months at this stage
taking into account the
time that has lapsed since the commencement
of the Commission's work and the previous extension already granted
to the Commission
to complete its work and present its report with
findings and recommendations to the President. Thus the extension of
thirteen
months is appropriate in the circumstances (1 March 2020 -
31 March 2021).
[24]
Regarding the remainder of the relief proposed, as regards this being
a final extension. I am
mindful of the fact that it is in the
interest of justice that there ought to be finality with the work of
the Commission, encompassing
findings and recommendations to act upon
as a matter of urgency. I am further wary of the original intention
of the Public Protector's
state capture report and this court's order
for the Commission to submit its report and recommendations to the
President within
180 days. There has already been an extension of
twenty-four months from March 2018 to February 2020. In my view,
further extensions
would not be warranted on the applicant's version
as set out in his founding affidavit and prayer 2 of his notice of
motion. The
interest of justice dictates that finality be attained
with findings, recommendations and a report of the Commission. The
Commission
owes this to the nation as the work of the Commission is
of national interest.
[25]
Is the applicant and/or Commission
prejudiced in anyway if an extension of thirteen months is granted as
being a final extension?
I do not believe so as the period granted in
respect of the extension was the case made out by the applicant in
his papers. If
the applicant anticipated a longer period, he would
have sought same. In addition, the applicant has already advanced
various ways
to curtail and limit the scope and terms of reference of
the Commission. There would thus be no prejudice endured by the
applicant
nor the Commission. Therefore, an extension from 1 March
2020 to 31 March 2021 to allow the Commission to complete its work
and
present a complete report with findings and recommendations to
the President is duly granted.
[26]
This court has the inherent power to
regulate its own processes in the interest of justice.
[17]
This is precisely one of those occasions that dictates that in order
to attain justice, finality ought to be reached as this court
is at
liberty to prescribe any terms it seem meet in the interest of
justice.
[27]
I do not find it necessary to deal with
the second part of relief sought by the Public Protector as I am of
the view that this relief
is not competent, as it seeks to repeat the
work of the Commission, which is already well on its way, amongst
others, and seeks
to redefine the scope and timeline already set for
the Commission.
Costs
[28]
As there was no opposition by both the
Public Protector and CASAC the appropriate order in respect of costs,
is that each party
pay their own costs.
[29]
Consequently, the following order is
made:
1.
This matter is urgent and, to the extent
necessary, dispensing with the ordinary forms and notices.
2.
The period of 180 days referred to in
paragraph 4.3 of this Court's order in the matter of
President
of South Africa v Office of the Public Protector and Others
2018
(2) SA 100
(GP) - being the period for the Commission of Inquiry
appointed by the President of the Republic of South Africa pursuant
to that
order, to complete its work and present its report with
findings and recommendations to the President, which period has
subsequently
been extended by orders of this Court is further
extended - by a period of thirteen months from 1 March 2020 to 31
March 2021.
This is the final extension.
3.
Insofar as may be necessary, the first
Respondent, the President of the Republic of South Africa, is
directed to take such steps
as are necessary to give effect to the
order referred to in paragraph 2 hereof, including the amendment of
paragraph 6 of Proclamation
3 of 2018 (published in Government
Gazette No. 41403 of 25 January 2018), to reflect the extended period
referred to therein.
4.
Each party to pay their own costs.
W Hughes
Judge of the High Court, Gauteng Division
APPEARANCES:
For
the Applicant:
Adv. P Kennedy SC
For the 8
th
Respondent: Adv. M le Roux
[1]
Para 7 of the Founding Affidavit.
[2]
Rule 27(1)
Extension of time and
Removal and condonation
(1) In the absence of agreement between the parties, the
court may upon application on notice and on good cause shown,
make
an order extending or abridging any time prescribed by the rules or
by an order of court or fixed by an order extending
or abridging any
time for doing any act or taking any steps in connection with any
proceedings of any nature whatsoever upon
such terms as to it seems
meet.
[3]
Prayer 2 of the Notice of Motion.
[4]
Ibid.
[5]
Para
47 of the Founding Affidavit.
[6]
Para
41 of the Founding Affidavit.
[7]
Para
42 of the Founding Affidavit.
[8]
Para 2 reads:
'These Terms of Reference
may be added to, varied or amended from time to time.'
[9]
Para 45 of the Founding Affidavit.
[10]
Para 5 of the Founding Affidavit.
[11]
Para 15 of the Public Protector's Answering Affidavit.
[12]
Herbstein &Van Winsen
7he Civil Practice of the High Court of
South Africa'
5
th
Edition at
page
722.
[13]
Smith NO v Brummer NO
1954 (3) SA 352
(0) at 358A;
Du
Plaay v Anwes Motors (Edms) Bpk
1983 (4) SA 212
(0) at
216H·217D.
[14]
Gumede v Road Accident Fund
2007 (6) SA 304
(C) at 307C-308A.
[15]
Prayer 2 of the Notice of Motion.
[16]
Ferris v FirstRand Bank Ltd
2014 (3) SA 39
(CC) at 43G-44A
and the case there referred.
[17]
Section 173 of the Constitution of the Republic of South Africa.