CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 295/20
In the matter between:
SECRETARY OF THE JUDICIAL COMMISSION OF INQUIRY
INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION
AND FRAUD IN THE PUBLIC SECTOR
INCLUDING ORGANS OF STATE Applicant
and
JACOB GEDLEYIHLEKISA ZUMA Respondent
and
COUNCIL FOR THE ADVANCEMENT OF THE
SOUTH AFRICAN CONSTITUTION First Amicus Curiae
VUYANI NGALWANA SC Second Amicus Curiae
THE HELEN SUZMAN FOUNDATION Third Amicus Curiae
Neutral citation: Secretary of the Judicial Commission o f Inquiry i nto Allegations
of State Capture, Corruption and Fraud in the Public Sector
including Organs of State v Jacob Gedleyihlekisa Zuma
[2021] ZACC 2
Coram: Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ,
Mhlantla J, Theron J, Tshiqi J and Victor AJ
Judgments: Jafta J (unanimous)
Heard on: 29 December 2020
Decided on: 28 January 2021
Summary: Section 3 of the Commissions Act 8 of 1947 — the power of a
commission to compel a witness to appear before it — urgent
application — direct access — privileges of a witness before a
commission
ORDER
On application for direct access to the Constitutional Court on an urgent basis:
1. The application for direct access is granted.
2. Advocate Vuyani Ngalwana SC is not admitted as amicus curiae.
3. The Council for the Advancement of the South African Constitution and the
Helen Suzman Foundation are admitted as amici curiae.
4. Mr Jacob Gedleyihlekisa Zuma is ordered to obey all summons es and
directives lawfully issued by the Judicial Commission of Inquiry into
Allegations of State Capture, Corruption and Fraud in the Public Sector
including Organs of State (Commission).
5. Mr Jacob Gedleyihlekisa Zuma is directed to appear and give evidence
before the Commission on dates determined by it.
6. It is declared that Mr Jacob Gedleyihlekisa Zuma does not have a right to
remain silent in proceedings before the Commission.
7. It is declared that Mr Jacob Gedleyihlekisa Zuma is entitled to all privileges
under section 3(4) of the Commissions Act, including the privilege against
self-incrimination.
8. Mr Jacob Gedleyihlekisa Zuma must pay the Commission’s costs in this
Court, including costs of two counsel.
JAFTA J
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JUDGMENT
JAFTA J ( Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Thero n J,
Tshiqi J and Victor AJ concurring):
Introduction
[1] This matter concerns the interpretation and application of the provisions of the
Commissions Act1 and regulations made under that Act.2 The Judicial Commission of
Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector
including Organs of State ( Commission) instituted t his application as a matter of
urgency. The application was launched in December when this Court was on recess.
The Commission sought to approach this Court d irectly on alternative base s. In the
main, it contended that the matter falls within the exclus ive jurisdiction of this Court.
Alternatively, the Commission sought direct access to this Court for purposes of
determining its application.
[2] Commissions of inquiry are investigative tools which the President may invoke
for purposes of investigating matt ers of public concern or for gathering information
considered necessary for formulating policy. The power to establish these
commissions vests in the President and may be exercised by him or her in his or her
capacity as the Head of State. It is a power expressly conferred by the Constitution.3
1 8 of 1947.
2 Regulations of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in
the Public Sector including Organs of State published in the Government Gazette number 41436 of
9 February 2018.
3 Section 84 of the Constitution provides:
“(1) The President has the powers entrusted by the Constitution and legislation, including
those necessary to perform the functions of Head of State and h ead of the national
executive.
(2) The President is responsible for—
JAFTA J
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[3] In SARFU III4 this Court construed section 84(2)(f) of the Constitution in terms
of which the President is empowered to appoint commissions of inquiry. This Court
observed that it was an executive power that was subject only to constraints of legality
and those specifically mentioned in the Constitution.5
[4] Notably in SARFU III it was emphasis ed that the findings and
recommendations made by a commission established in terms of section 84(2)(f) do
not bind the President. The President is free to reject them in their entirety or select
recommendations he wishes to implement. In this regard the Court said:
“In the case of the appointment of commissions of inquiry, it is well -established that
the functions of a commission of inquiry are to determine facts and to advise the
President through the making of recommendations. The President is bound neither to
accept the commission’s factual findings nor is he or she bound to follow its
recommendations.”6
(a) assenting to and signing Bills;
(b) referring a Bill back to the National Assembly for reconsideration o f the
Bill’s constitutionality;
(c) referring a Bill to the Constitutional Court for a decision o n the Bill’s
constitutionality;
(d) summoning the National Assembly, the National Council of Provinces or
Parliament to an extraordinary sitting to conduct special business;
(e) making any appointments that the Constitution or legislation requires the
President to make, other than as head of the national executive;
(f) appointing commissions of inquiry;
(g) calling a national referendum in terms of an Act of Parliament;
(h) receiving and recognising foreign diplomatic and consular representatives;
(i) appointing ambassadors, plenipotentiaries, and diplomati c and consular
representatives;
(j) pardoning or reprieving offenders and remitting any fines , penalties or
forfeitures; and
(k) conferring honours.”
4 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 11; 2000 (1)
SA 1 (CC); 1999 (10) BCLR 1059 (CC) (SARFU III).
5 Id at para 148.
6 Id at para 146.
JAFTA J
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[5] In addition to the function of advising the President, a commission of inquiry
may also serve the purpose of ho lding a public inquiry in respect of a matter of public
concern. The purpose of a public hearing under those circumstances is to restore
public confidence in the institution in which the matter that caused concern arose.
Here the focus i s not what the Pr esident decides to do with the findings and
recommendations of a particular commission. Instead, the objective is to reveal the
truth to the public pertaining to the matter that gave rise to public concern. Affirming
this purpose in Minister of Police, this Court stated:
“In addition to advising the executive, a commission of inquiry serves a deeper public
purpose, particularly at times of widespread disquiet and discontent.”7
[6] However, it is not every commission of inquiry that serves “a deeper public
purpose”. As mentioned, the President is free to appoint a commission of inquiry,
even for purposes of gathering information he or she may use to formulate policy.
Ordinarily a commission that was established to gather information does not need
coercive powers to force individuals to furnish it with information. But if it is a
fact-finding commission, it may be necessary for it to compel witnesses to testify or
produce documentary evidence.
[7] Section 84(2)(f) of the Constitu tion does not, however, author ise the President
to confer upon the commission he or she establishes in terms of that section, the power
to compel witnesses to appear before the commission. The President derives the
power to do so from the Commissions Act.
The Commissions Act
[8] This is a pre -Constitution piece of legislation that came into force in
April 1947. It is a short Act comprising seven sections. Section 1 deals with the
application of the Act to a commission. It does not automatically apply to a
7 Minister of Police v Premier, Western Cape [2013] ZACC 33; 2014 (1) SA 1 (CC) ; 2013 (12) BCLR 1365
(CC) at para 45.
JAFTA J
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commission upon its establishm ent by the President. The section requires the
President to declare that the Act will apply to the commission subject to conditions he
or she may specify .8 The declaration must be made in the form of a proclamation in
the Gazette.
[9] The section also empow ers the President to make regulations that govern the
effective operation of the commission in question. These regulations may confer
additional powers upon the commission and spell out the procedure to be followed by
the commission in conducting an inves tigation. The regulations may also protect the
integrity of the commission and insulate it against external influences. All this may be
achieved by criminalising conduct which may prevent a proper investigation .9
Section 1(2) prescribes amounts of fines and periods of imprisonment which may be
8 Section 1(1) of the Commissions Act provides:
“Whenever the Governor -General has, before or after the commencement of this A ct,
appointed a commission (hereinafter referred to as a ‘commission’) for the purpose of
investigating a matter of public concern, he may by proclamation in the Gazette—
(a) declare the provisions of this Act or any other law to be applicable with reference to
such commission, subject to such modifications and exceptions as he may specify in
such proclamation; and
(b) make regulations with reference to such commission-
(i) conferring additional powers on the commission;
(ii) providing for the manner of holding o r the procedure to be followed at the
investigation or for the preservation of secrecy;
(iii) which he may deem necessary or expedient to prevent the commission or a
member of the commission from being insulted, disparaged or belittled or to
prevent the proceedings or findings of the commission from being
prejudiced, influenced or anticipated;
(iv) providing generally for all matters which he considers it necessary or
expedient to prescribe for the purposes of the investigation.”
9 Section 1(2) of the Commissions Act provides:
“Any regulation made under paragraph (b) of subsection (1) may provide f or penalties for any
contravention thereof or failure to comply therewith, by way of—
(a) in the case of a regulation referred to in subparagraph (i), (ii) or (iv) of the said
paragraph, a fine not exceeding two hundred rand or imprisonment for a period n ot
exceeding six months;
(b) in the case of a regulation referred to in subparagraph (iii) of the said paragraph, a
fine not exceeding one thousand rand or imprisonment for a period not exceeding one
year.”
JAFTA J
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imposed as penalties for breach of the regulations. The offences created by the
regulations may be tried in the magistrate’s court.10
[10] Of importance for present purposes are sections 3 and 6, in addition to
section 1. Section 3 provides:
“(1) For the purpose of ascertaining any matter relating to the subject of its
investigations, a commission shall in the Union have the powers which a Provincial
Division of the Supreme Court of South Africa has within its province to summon
witnesses, to cause an oath or affirmation to be administered to them, to examine
them, and to call for the production of books, documents and objects.
(2) A summons for the attendance of a witness or for the production of any book,
document or object before a commission shall be signed and issued by the secretary
of the commission in a form prescribed by the chairman of the commission and shall
be served in the same manner as a summons for the attendance of a witness at a
criminal trial in a superior court at the place where the attendance or production is to
take place.
(3) If required to do so by the chairman of a commission a witness shall, before
giving evidence, take an oath or make an affirmation which oath or affirmation shall
be a dministered by the chairman of the commission or such official of the
commission as the chairman may designate.
(4) Any person who has been summoned to attend any sitting of a commission as a
witness or who has given evidence before a commission shall be e ntitled to the same
witness fees from public funds, as if he had been summoned to attend or had given
evidence at a criminal trial in a superior court held at the place of such sitting, and in
connection with the giving of any evidence or the production of any book or
document before a commission, the law relating to privilege as applicable to a
witness giving evidence or summoned to produce a book or document in such a court,
shall apply.”
10 Section 1(3) reads:
“Notwithstanding anything to the contrary in any ot her law contained, a magistrate’ s court
shall have jurisdiction to impose any penalty prescribed by any such regulation. ”
JAFTA J
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[11] This provision vests commissi ons with powers equal to those enjoye d by the
High Court with regard to summoning witnesses; tak ing their evidence under oath or
affirmation and demanding the production of documents and other objects which
constitute evidentiary material. Section 3(2) authorises the secretary of a commissio n
to issue a summons which must be in the form prescribed by the commission’s
Chairperson.
[12] What is apparent from the text of section 3(2) is that if the attendance of a
witness is sought, a summons should be issued, directing the witness to appear before
the commission on a specified date. Under the section the authority to issue the
summons vests in the commission’s secretary who should sign the summons presented
to him or her if it is in the prescribed form. No substantive application on affidavit is
required for that purpose. Nor is the witness to be summoned entitled to a hearing or
an opportunity to make representations before the summons is issued.
[13] Once a summons is duly signed by the secretary, it should be served upon the
witness in the manner similar to the process followed when summonses are served fo r
the attendance of witnesses at a criminal trial before the High Court. The person on
whom the summons is served is obliged to appear at a sitting of the commission on the
designated date. Subject to the law relating to privilege applicable to a witness giving
evidence in a criminal trial in the High Court , the witness summoned to the
commission is obliged to give evidence and answer all questions put to him or her.
[14] Should the witness fail to attend the inquiry on the date and place specified in
the summons or to remain in attendance until the conclusion of the inquiry or until he
or she is excused by the Chairperson of the commission from further attendance, he or
she would be guilty of an offence. Upon conviction he or she would be liable to a fine
or a period of imprisonment not exceeding six months or to both such fine and
imprisonment.11
11 Section 6 of the Commissions Act provides:
JAFTA J
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[15] It cannot be gainsaid that the Commissions Act authorises serious limitations of
fundamental freedoms and rights guaranteed by the Bill of Rights. To mitigate the
intrusion upon individual rights, the Act restricts its application to a commission
established “for the purpose of investigating a matter of public concern”. In view of
this impact of the Act on fundamental rights, the duty imposed by section 39(2) of the
Constitution when legislation is interpreted, is activated during the construction of the
provisions of the Commissions Act. This duty requires this Court to interpret the Act
in a manner that promotes the rights and freedoms safeguarded by the Bill of Rights.12
[16] The phrase “a matter of public concern” is subject to an objectively
ascertainable standard. It does not mean what the President in his or her mind views
as public interest. Instead, it refers to the concern that the general public had in
respect of the matter to be investi gated by the Commission vested with coercive
powers in the Commissions Act.
“(1) Any person summoned to attend and give evidence or to prod uce any book,
document or object before a commission who, without sufficient cause (the onus of
proof whereof shall rest upon him) fails to attend at the time and place specified in
the summons, or to remain in attendance until the conclusion of the enquir y or until
he is excused by the chairman of the commission from further attendance, or having
attended, refuses to be sworn or to make affirmation as a witness after he has been
required by the chairman of the commission to do so or, having been sworn or h aving
made affirmation, fails to answer fully and satisfactorily any question lawfully put to
him, or fails to produce any book, document or object in his possession or custody or
under his control, which he has been summoned to produce, shall be guilty of an
offence and liable on conviction to a fine not exceeding fifty pounds or to
imprisonment for a period not exceeding six months, or to both such fine and
imprisonment.
(2) Any person who after having been sworn or having made affirmation, gives false
evidence before a commission on any matter, knowing such evidence to be false or
not knowing or believing it to be true, shall be guilty of an offence and liable on
conviction to a fine not exceeding one hundred pounds or to imprisonment for a
period not exceeding twelve months, or to both such fine and imprisonment.”
12 Chisuse v Director-General, Department of Home Affairs [2020] ZACC 20; 2020 (6) SA 14 (CC); 2020 (10)
BCLR 1173 (CC) at paras 49 -50. See also Van Vuren v Minister of Correctional Services [2010] ZACC 17;
2012 (1) SACR 103 (CC); 2010 (12) BCLR 1233 (CC) at para 47; Chagi v Special Investigating Unit [2008]
ZACC 22; 2009 (2) SA 1 (CC); 2009 (3) BCLR 227 (CC) at para 14; Daniels v Campbell N.O. [2004] ZACC
14; 2004 (5) SA 331 (CC); 2004 (7) BCLR 735 (CC) at paras 43 -5 of Ngcobo J’s c oncurring judgment and
paras 81-3 of M oseneke J’s dissenting judgment; and Bato Star Fishing (Pty) Ltd v Minist er of Environmental
Affairs and Tourism [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) at para 72.
JAFTA J
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[17] With regard to the objective test and the proper approach to the interpretation
of the phrase, this Court said in SARFU III:
“In determining whe ther the subject -matter of the commission’s investigation is
indeed a ‘matter of public concern’ , the test to be applied is an objective one. The
legally relevant question is not whether the Pre sident thought that the subject -matter
of the inquiry was a matter of public concern, but whether it was objectively so at the
time the decision was taken. Whether or not the matter is one of public concern is a
question for the courts to determine and not a matter to be decided by the President
within his own discretion. In this context, the Constitution requires that the notion of
‘public concern’ be interpreted so as to promote the spirit, pur port and objects of the
Bill of Rights and to underscore the democratic values of human dignity, equality and
freedom. The purpose of the requirement that a matter be one of public concern is,
on the one hand, to protect the interests of individuals by limiting the range of matters
in respect of which the President m ay confer powers of compulsion upon a
commission and, on the other, to protect the interests of the public by enabling
effective investigation of matters that are of public concern.”13
[18] In the context of the Commissions Act, a matter is of public concern if it
evokes public anxiety or worry and interest. The presence of one or the other of these
features does not constitute public concern. With the help of a dictionary meaning,
this Court in SARFU III stated:
“The Oxford English Dictionary defines the ter m ‘concern’ as ‘ anxiety or worry; or
matter of interest or importance to one’ . The first m eaning given is the meaning of
‘worry or anxiety’. The second meaning is a matter of interest or importance. In our
view, ‘public concern’, as it is used in the Co mmissions Act, should be interpreted in
a way which involves both the notion of ‘anxiety’ and ‘interest’ . A matter of p ublic
concern is, therefore, not a matter in which the public merely has an interest, it is a
matter about which the public is also conc erned. ‘Public concern’ in this context is
therefore a more restricted notion than that of public interest.”14
13 SARFU III above n 4 at para 171.
14 Id at para 174.
JAFTA J
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[19] In view of the nature of the allegations which are being investigated by the
present Commission, there can be no doubt that they constitute matte rs of public
concern envisaged in the relevant Act. As it appears in the Proclamation 15 under
which the Commission was appointed, its purpose is “to investigate allegations of
state capture, corruption and fraud in organs of state”. In part , the Commission’s
terms of reference read:
“A Judicial Commission of Inquiry ( ‘the Commission’) is hereby appointed in terms
of section 84( 2)(f) of the Constitution of the Republic of South Africa, 1996. The
Commission is appointed to investigate matters of public and national interest
concerning allegations of state capture, corruption and fraud.”16
15 Proc R3 GG 41403 of 25 January 2018.
16 The Terms of Reference read:
“1. The Commission shall inquire into, make findings, report on and make recommendations
concerning the following, guided by the Public Protector's state of 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:
1.1 whether, and to what extent and by whom attempts were made through any
form of inducement or for any gain of whatsoever nature to in fluence
members of the National Executive (including Deputy Ministers), office
bearers and /or functionaries employed by or office bearers of any state
institution or organ of state or directors of the boards of SOE s. In particular,
the commission must investigate the veracity of allegations that former
Deputy Minister of Finance, Mr Mcebisi Jonas and Ms Mentor were offered
Cabinet positions by the Gupta family;
1.2 whether the President had any role in the alleged offers of Cabinet positions
to Mr Mcebisi Jonas and Ms Mentor by the Gupta family as alleged;
1.3 whether the appointment of any member of the National Executive,
functionary and /or office bearer was disclosed t o the Gupta family or any
other unauthorised person before such appointments were formally made
and /or announced, and if so, whether the President or any member of the
National Executive is responsible for such conduct;
1.4 whether the President or any member of the present or prev ious members of
his National Executive (including Deputy Ministers) or public official or
employee of any state -owned entities (SOEs) breached or violated the
Constitution or any relevant ethical code or legislation by facilitating t he
unlawful awarding of tenders by SOEs or any organ of state to benefit the
Gupta family or any other family, individual or corporate entity doing
business with government or any organ of state;
1.5 the nature and extent of corruption, if any, in the awarding of contracts,
tenders to companies, business entities or organizations by public entities
listed under Schedule 2 of the Public Finance Management Act No. 1 of
1999 as amended;
1.6 whether there were any irregularities, undue enrichment, corruption and
undue influence in the awarding of contracts, mining licenses, government
advertising in the New Age Newspaper and any other governmental services
JAFTA J
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[20] The terms of reference proceed to explicitly tabulate matters to be investigated.
These include allegations that “Mr Mcebisi Jonas and Ms Mentor were offere d
Cabinet positions by the Gupta family”. And in particular whether the then President
had any role in those offers or in informing that family about appointments to Cabinet,
before those appointments were formally made. Another issue for investigation was
whether the former President had unlawfully facilitate d the awarding of tenders by
state-owned entities to the Gupta family or any other person or company.
[21] These t erms of reference place the former President at the centre of the
investigation. They seek to establish whether he abdicated his constitutional power to
appoint Cabinet members to a private family and whether he had acted unlawfully.
These are all matters of public concern as defined above and some of them fall
particularly within the personal knowledge of the ex-President.
[22] Sight must not be lost of the fact that it was he who was the subject of the
investigation and who drew up the terms of reference that placed him at the hear t of
the investigation. Some of those matters may not be proper ly investigated without his
participation. Indeed , the terms of reference require all organs of state to cooperate
fully with the Commission and extend the application of the Commissions Act to it,
including the power to secure and compel witnesses to appear before the Commission
in the business dealings of the Gupta family with government departments
and SOEs;
1.7 whether any member of the Nation al Executive and including Deputy
Ministers, unlawfully or corruptly or improperly intervened in the matter of
the closing of banking facilities for Gupta owned companies;
1.8 whether any advisers in the Ministry of Finance were appointed without
proper procedures. In particular, and as alleged in the complaint to the Public
Protector, whether two senior advisers who were appointed by Minister Des
Van Rooyen to the National Treasury were so appointed without following
proper procedures;
1.9 the nature and extent of corruption, if any, in the awarding of contracts and
tenders to companies, business entities or organizations by Government
Departments, agencies and entities. In particular, whether any member of
the National Executive (including the President), public official, functionary
of any organ of state influenced the awarding of tenders to benefit
themselves, their families or entities in which they held a personal interest.”
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for purposes of giving evidence. The terms of reference also mention that regulations
would be made in terms of the Commissions Act to enable the Commission “to
conduct its work meaningfully and effecti vely and to facilitate the gathering of
evidence by conferring on the Commission powers as necessary”.
Regulations
[23] On 9 February 2018, the former President signed the regulations in question.
These regulations permit legal representation for any person appearing before the
Commission. Regulation 8 obliges wit nesses to answer all questions p ut to them
except only those which fall within the scope of section 3(4) of th e Commissions
Act.17 It will be recalled that this section affords witnesses before the Commission
protections enjoyed by witnesses in a criminal trial . The regulation permits
cross-examination of witnesses subject to authorisation by the Chairperson.
[24] In exchange for compelling witnesses to testify before the Commission,
regulation 8(2) prohib its the use in any criminal proceedings of evidence adduced at
the Commission. This prohibition does not apply to a trial relating to an offence under
section 6 of the Commissions Act or regulation 12. The prohibition extends to
derivative evidence that may come to light as a result of the witness’s testimony
before the Commission. That evidence is inadmissible in criminal proceedings.18
[25] Regulation 10 empowers officials of the Commission to enter any premises and
seize evidentiary material relevant to the Commission’s investigation. 19 But this entry
17 Regulation 8(1) provides:
“No person appearing before the Commission may refuse to answer any question on any
grounds other than those contemplated in section 3(4) of the Commissions Act, 1947 (Act No.
8 of 1947).”
18 Regulation 8(2) provides:
“No evidence regarding questions and answers contemplated in sub -regulation (1), and no
evidence regarding any fact or information that comes to light in consequence of any such
questions or answers, shall be admissible in any criminal proceedings, except in criminal
proceedings where the person concerned is charged with an offence in terms of sectio n 6 of
the Commissions Act, 1947 (Act No. 8 of 1947), or regulation 12.”
19 Regulation 10(1) reads:
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must be authoris ed by a search warrant issued by a Judge of the High Court within
whose jurisdiction the premises conc erned are located.20 But where it is justified, a
Judge may issue a warrant for the search of premises situated outside his or her area of
jurisdiction.21
[26] While section 3 of the Commissions Act empowers the Commission’s secretary
to issue a summons for attendance at a hearing by witnesses, regulation 10(6) bestows
the power upon the Chairperson to secure the same attendance by means of a
direction. This regulation provides:
“For the purposes of conducting an investigation the Chairperson may direct any
person to submit an affidavit or affirmed declaration or to appear before the
Commission to give evidence or to produce any document in his or her possession or
under his or her control which has a bearing on the m atter being investigated , and
may examine such person.”
[27] The regulation enables the Chairperson, acting on his or her own accord, to call
any witnesses he considers necessary to give evid ence or call upon such witness to
submit a sworn statement or produce any document that has a b earing on a matter
under investigation by the Commission. It bears emphasis that the process regulated
by regulation 10(6) differs from that which is governed by section 3 of the
Commissions Act. The regulation 10(6) process does not require a summons to be
“The Chairperson or any officer may, with a warrant, for the purposes of the inquiry, at all
reasonable times and without prior notice or with such notice as he or she may deem
appropriate enter and inspect any premises and demand and seize any document or article
which is on such premises.”
20 Regulation 10(3) provides:
“Subject to sub -regulation (4), the premises referred to in sub -regulation (1) may be enter ed
only by virtue of a warrant issued in chambers by a judge of the area of jurisdiction within
which the premises are situated.”
21 Regulation 10(4) reads:
“A warrant referred to in sub -regulation (1) may be issued by a judge in respect of premises
situated in another area of jurisdiction, if he or she deems it justified.”
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issued but a direction only. Failure to comply with that direction may, in appropriate
circumstances, constitute an offence.22
[28] It is against this legislative backdrop that the present claim by the Commission
must be adjudicated. This is so because th e Proclamation under which the
Commission was established explicitly states that the Commission was established in
terms of section 84(2)(f) of the Constitution. 23 And in the Government Gazette of
9 February 2018, the provisions of the Commissions Act were extended to apply to
the Commission.24
Factual background
[29] It must be mentioned at the outset that the facts placed before this Court were
furnished only by the Commissi on. Former President Jacob Gedleyihlekisa Zuma
(respondent) has decided not to participate in these proceedings. This means that the
matter will be determined on the basis of the version provided by the Commission ,
which is the applicant here. The facts as set out in the Commission’s papers are not
disputed and as a result they will be taken as correct.
22 Regulation 12(2) provides:
“Any person who wilfully hinders, resists or obstructs the Chairperson or any officer in the
exercise of any power contemplated in regulation 10 is guilty of an offence.”
23 The Proclamation states:
“In terms of section 84(2)(f) of the Constitution of the Republic of South Africa of 1996, I
hereby appoint a Commission of Inquiry to investigate allegations of state capture, corruption
and fraud in the Public Sect or including organs of state with the terms of reference in the
Schedule attached h ereto and appoint Honourable Mr Justice Raymond Mnyamezeli
Mlungisi Zondo, Deputy Chief Justice of the Republic of South Africa, as its Chairperson. ”
24 Government Notice No 105 of 9 February 2018 reads:
“Under the powers vested in me by section 1 of the Commissions Act, 1947 (Act No. 8 of
1947) (the Act), I hereby–
(a) declare that the provisions of the said Act shall be applicable to the Judicial
Commission of Inquiry into allegations of state capture, corruption and fraud in the
Public Sector including Organs of State established in terms of Proclamation No.3 of
2018 published in Gazette No. 41403 dated 25 January 2018; and
(b) make the regulations in the Schedule with reference to the said Commission.”
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[30] Following remedial action issued by the Public Protector to the effect that a
commission of inquiry be appointed to investigate certain allegations that were made
to her during an investigation, the respondent who was then the sitting President of the
Republic, established the Commission. As mentioned, he was exercising the power
conferred on him by section 84(2 )(f) of the Constitution. On the recommendation of
the Chief Justice, the respondent appointed the Deputy Chief Justice as the
Chairperson of the Commission.
[31] Among the allegations which the Public Protector ordered be investigated by a
commission were matters which implicated the respondent in his capacity as President
of the Republic. These included offers of appointment to Cabinet made to certain
individuals by the Gupta family and whether the President and members of his
Cabinet were involved in the facilitation of the award ing of tenders unlawfully by
state-owned entities. Commendably the respondent , having established the
Commission, drew up terms of reference which covered the allegations flagged by the
Public Protector, despite the fact that he was implicated as one of the culprits.
Effectively the respondent, by so doing , made himself the subject of the
Commission’s investigation.
[32] It must have come as no surprise to him that the Commission required his
attendance in the course of its investigation. At that point the respondent, having
resigned from office, was no longer President of the R epublic. D uring September
2018 the respondent was requested to furnish the Commission with an affidavit,
responding to the evidence by two witnesses, Ms Mentor and Mr Maseko, which
implicated him. The respondent, through his attorneys, informed the Commission that
he had sought certain records from the office of the President. The records in question
had, it was stated, information relevant to matters the respondent needed to include in
the requested affidavit.
[33] However, no affidavit was submitted by the respondent. More than seven
months later, the Commission addressed a query to the respondent’s attorneys
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expressing concern that no affidavit had been submit ted. The respondent’s attorney s
responded immediately and took issue with the assertion that he had “failed to deliver
an affidavit as requested”. They pointed out that the Presidency had furnished them
with incomplete information on 24 April 2019. They recorded their rejection of a
suggestion that the respondent did not cooperate with the Commissio n, even though
the Commission’s letter under reply made no suggestion of that sort. That letter
merely recorded the Commission’s concern over the delay. The respondent’s
attorneys proceeded to lump the Commission and the Presidency together and accused
them of lack of cooperation with the respondent by their failure to furnish him with
information. They concluded by insisting that their client need ed the full information
in order to submit an affidavit and mentioned that their client’s rights on the issu e
were reserved.
[34] On 30 April 2019 , and by means of a letter, the Commission invited the
respondent to appear before it from 15 to 19 July 2019. The letter stated that the
purpose of the appearance was to afford the respondent an opportunity “to give his
side of the story” in relation to evidence of witnesses who implicated him and also to
answer questions from the Commission. The letter asked for a written confirmation
that the respondent would appear before it.
[35] Following an exchange of correspondence b etween the Commission and the
respondent, the former President appeared before the Commission on 15 July 2019.
He testified for two and half days before declining to answer questions and objecting
to being questioned in a manner that he said amounted to c ross-examination. The
respondent took the decision that he would no longer participate in the proceedings of
the Commission. He did not complain only about the questioning, but also expressed
misgivings about how the Commission had secured his attendance.
[36] The Commission’s lawyers refuted the respondent’s complaints. They pointed
out that the Chairperson had authority to call witnesses to testify before the
Commission and that the respondent was “invited” in the exercise of that power.
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They drew the respondent’s attention to the provisio ns of regulation 8(1) and pointed
out that he was obliged to answer questions, except those in respect of which he was
exempted from answering by section 3(4) of the Commissions Act. The lawyers f or
the Commission also refuted that the respondent was subj ected to cross -examination.
They concluded by asserting that the respondent’s procedural objections, complaints
and misgivings were not valid.
[37] This impasse prompted the Chairperson to invite the lawyers on both sides to a
discussion in chambers. On 19 J uly 2019, an agreement was reached on the
respondent’s continued participation in the Commission’s hearings. He withdrew the
decision not to participate and promised to cooperate with the Commission.
[38] The agreement included the Commission’s lawyers provid ing the respondent
with a list of issues in respect of which he was required to testify, within two weeks
from 19 July 2019. Thereafter, the respondent would furnish the Commission with an
affidavit, setting out his version on those issues. The parties h ad contemplated that
once these steps had occurred, the respondent would testify before the Commission.
[39] On 30 July 2019, the Commission’s lawyers emailed a list of issues to the
respondent’s attorneys and concluded their message by recording that the Chai rperson
had directed that the respondent should return to the hearing from
14 to 25 October 2019 and from 11 to 15 November 2019. The respondent’s attorneys
took umbrage at the directive fixing dates on which the respondent was required to
return to the C ommission. They requested the Commission’s lawyers to inform the
Chairperson that they regarded those dates as a proposal which may be changed at the
instance of either party. Further correspondence was exchanged between the lawyers
of both sides. In on e of the letters, the Commission’s lawyers pointed out that what
informed the decision on the dates in question was the fact that the lifespan of the
Commission would terminate at the end of February 2020.
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[40] Notably the Commission disputed that it was a ter m of the agreement of
19 July 2019 that dates on which the respondent would return to the Commission,
would be arranged by consensus between the parties. However, the Commission
excused the respondent fr om appearing before it from 14 to 25 October 2019 as those
dates clashed with his appearance before a criminal court in Pietermaritzburg. With
regard to the dates in November, the respondent’s attorneys pointed out that he and his
legal team would not be available as they would be attending to another case in which
he unsuccessfully sought an order for a p ermanent stay of prosecution. In a
subsequent letter, they informed the Commission that the respondent was sick and that
he was admitted in hospital. Consequ ently, he c ould not come to the Commission in
November 2019.
[41] Meanwhile the respondent had also failed to meet the deadline agreed to on
19 July 2019 for submitting an affidavit, and no explanation was furnished to the
Commission for his failure. This was a second occasion that he failed to do s o. O n
the first occasion he complained that the Presidency had given him incomplete
information. To date not a sing le affidavit has been presented by him to the
Commission.
[42] In December 2019 the Commission’s lawyers took a decision that the
Commission’s powers of compulsion should be invoked in order to force the
respondent to attend and testify. Having sketched out in detail in their letter to the
respondent’s attorneys the chronology of the respondent’s failure s and their impact on
the Commission’s investigation, they concluded:
“The above record of events is a matter of material concern for the legal t eam of the
Commission. First, the inability of the Commission to secure the attendance of
Mr Zuma to continue evidence before the Commission is hamper ing the work of the
Commission. Second, and in particular, the refusal or failure to submit an affidavit in
response to the ‘areas of interest ’ communication of 30 July 2019 is a breach of
arrangement agreed and referred to above. Third, the loss of thre e weeks hearing
time is something the Commission can ill afford both in relation to time and the costs
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involved. Finally it is noted that despite the Chairperson’s various directives, you
have failed or refused to approach him by way of formal application s to seek rulings
excusing non-compliance with his directives.”
[43] But for reasons that are not apparent from the record, the Commission’s
lawyers, rather than following the Commissions Act and seeking that a summons be
issued, chose to give notice to the re spondent, advising him that they contemplate
making an application for authorisation of a summons by the Chairperson. A
substantive application on affidavit was filed and served on 19 December 2019. It
was to be heard o n 14 January 2020. The relief soug ht was an order authorising and
directing the Commission’s secretary to issue summons against the respondent. The
notice of application afforded the respondent up to 6 January 2020 to give notice to
oppose and deliver an affidavit setting out the grounds of opposition. On
6 January 2020, the respondent’s attorney s filed a notice to oppose and promised to
file the opposing affidavit on 10 January 2020.
[44] However, on that date the respondent’s attorneys informed the Commission
that their client had undergone a surgery on 6 and 9 January 2020 and promised to file
the affidavit on or before 14 January 2020. On 13 January 2020, the respondent filed
an affidavit of 105 pages, excluding annexures. As the Commission’s lawyers sought
to file a reply, the applicati on was not heard on 14 January 2020. The matter was
postponed indefinitely for a reply.
[45] It was only on 28 August 2020 that the Commission issued a notice setting
down the application for 9 September 2 020. The respondent’s attorneys responded on
30 August 2020 and pointed out that due to prior commitments the respondent’s
counsel were not available. Th ey asked that the hearing be re scheduled. They also
objected to dates which were fixed by the Commission for the a ppearance of the
respondent from 21 to 25 September 2020, before the application for the issuance of
summons was heard. These dates were fixed by means of a letter of 10 August 2020.
The respondent’s attorneys demanded to be consulted before dates were fixed.
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[46] On 18 September 2020 the Com mission by letter informed the respondent’s
attorneys that the hearing of the application for summons had been rescheduled for
9 October 2020. The Commission suggested that argument on that a pplication may
even be presented “remotely”. Alternatively, the application could be determined on
written submissions only. In a second letter with no date, the Commission’s secretary
informed the respondent’s attorneys that 16 to 20 November 2020 were the new dates
for the respondent’s appearance at the Commission. It is not clear whether the
Commission excused the res pondent from attending from 21 to 25 September 2020 at
the behest of his attorneys.
[47] But what is evident is that the respondent’s attorneys took offence at the fixing
of the new dates. They responded by informing the Commission that they were
instructed to bring an application for the Chairperson’s recusal.
[48] Meanwhile the Chair person had issued two directions in terms of
regulation 10(6). The first was issued on 27 August 2020 and required the respon dent
to respond by way of an affidavit to the evidence of Messrs Tsotsi, Linnel l and
Matona. The second was issued on 8 September 2020 and directed him to respond to
the evidence of Mr Popo Molefe by affidavit. The respondent did not comply with
both directions.
[49] On 9 October 2020, the application for the issuance of the summons was heard,
in the absence of the respondent. The Commission’s secretary was later author ised to
issue summons which was issued on 20 October 2020. The summons required the
respondent to appear before the Commission from 16 to 20 November 2020. This
summons was duly served on the respondent’s attorneys.
[50] On 16 November 2020, the respondent appeared before the Commission but his
counsel moved the application for the Chairperson’s recusal. Full argument was
presented by both sides. The Chairperson took time t o consider the submissions and
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made his ruling on 19 November 2020. In a fully reasoned ruling, the recusal
application was dismissed. Following the ruling, the respondent’s counsel informed
the Commission that his client will leave the hearing as he intends taking the ruling on
review.
[51] The Commission took a short adjournment and it was during that adjournment
that the respondent and his legal team left the hearing. When the hearing resumed, the
Chairperson was informed that the resp ondent had left without being ex cused from
further attendance. Unimpressed by the turn of events, the Chairperson instruct ed the
secretary to lay a criminal charge against the respondent and to launch an urgent
application in this Court, hence the current one.
[52] But litigants do not approach this Court, which is the apex court, as of right.
They require the Court’s permission to do so, pa rticularly if the relief sought can be
obtained in the courts below. The exception to this rule applies where a matter falls
within the exclusive jurisdiction of this Court. If a litigant establishes exclusive
jurisdiction, it is entitled to appr oach this Court directly as the matters falling within
this Court’s exclusive jurisdiction cannot be entertained by other courts. Here, the
Commission approached this Court on two grounds. First, it contended that the matter
fell within the Court’s exclusive jur isdiction. Second, the Commission sought to be
granted direct access. Any one of these grounds, if successfully established, would
entitle the Commission to a hearing by this Court. However, at the hearing of the
matter, counsel for the Commi ssion addre ssed the Court on direct access only. He
submitted that if the Commission succeeds on it, it will not be necessary for the Court
to determine whet her its exclusive jurisdiction wa s engaged. Therefore, the point on
direct access will be considered first.
Direct access
[53] In order to determine whether direct access should be granted, it is helpful first
to identify the standard against which the request for direct access must be assessed.
It is by now trite that when this Court grants direct access, it exerc ises a discretionary
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power.25 Like all discretions, the power must be exercised judicially. What this
means is that the Court must not misdirect itself in relation to the relevant facts and
the applicable law. Should an incorrect legal standard be applie d, it cannot be said
that the discretion was properly exercised.
[54] Section 167(6) of the Constitution empowers litigants to bring cases directly to
this Court if it is in the interests of justice to do so and leave is granted .26 Consistent
with this provisi on, rule 18 of the rules of this Court prescribes the procedure to be
followed when cases are brought directly to this Court .27 The rule requires that these
cases be brought on notice of motion, supported by an affidavit that sets out fully the
facts upon which the applicant relies for relief. The rule obliges the applicant to
describe grounds on which the request for direct access is based.
Grounds for direct access
[55] The Commission’s mainstay for seeking direct access is urgency. It pointed
out that the Commission’s lifespan is to come to an end on 31 March 2021. Building
25 Tsotetsi v Mutual and Federal Insurance Co Ltd [1996] ZACC 19; 1997 (1) SA 585 (CC); 1996 (11) BCLR
1439 (CC) at paras 11-2.
26 Section 167(6) of the Constitution provides:
“National legislation or the rules of the Constitu tional Court must allow a person, when it is in the
interests of justice and with leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other court.”
27 Rule 18 provides:
“(1) An application for direct access as contemplated in section 167(6)(a) of the
Constitution shall be brought on notice of motion, which shall be supported by an
affidavit, which shall set forth the facts upon which the applicant relies for relief.
(2) An application in terms of subrule (1) shall be lodged with the Registrar and served
on all parties with a direct or substantial interest in the relief claimed and shall set
out—
(a) the grounds on which it is contended that it is in th e interests of justice that
an order for direct access be granted;
(b) the nature of the relief sought and the grounds upon which such relief is
based;
(c) whether the matter can be dealt with by the Court without the hearing of oral
evidence and, if it cannot;
(d) how such evidence should be adduced and conflicts of fact resolved.”
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on this, the Commission argued that very little time re mains for it to complete
hearings and compile a report. Had it not lost three months of its time to the Covid -19
lockdown, the Commission could have concluded oral hearings at the end of
December 2020. As a result, the Commission now aims at completing h earings at the
end of February 2021. The Commission pointed out that it has the period of January
to February 2021 to hear evidence from the respondent which is pivotal to its
investigation.
[56] It concluded by submitting that in these circumstance s, it is u rgent that this
Court makes a final determination of the issues because if it were to approach the
High Court, the appeal process which may ensue would defeat the objective of
compelling the respondent to testify before the Commission. The Commission argu ed
that the normal procedures are not appropriate in view of the impending termination
of its existence. As mentioned, the bedrock of the Commission’s argument is that
anything other than direct access to this Court would result in its tenure coming to an
end without hearing the respondent’s testimony.
[57] Of course, this would be a cogent reason if this situation was not caused by the
Commission’s own conduct .28 We are told that the Commission ha s sought the
respondent’s attendance at its hearings since 2018. We are also told that to date the
Commission has issued no less than 2526 summonses, but we are not informed why a
summons was not issued against the respondent until October 2020.
[58] Despite t he constitutional injunction of equal protection and benefit of the
law,29 of which the Commission was aware, for reasons that have not been explained
the Commission treated the respondent differently and with what I could call a
measure of deference. He was only subjected to compulsion by summons when it was
28 AParty v Minister of Home Affairs ; Moloko v Minister of Home Affairs [2009] ZACC 4; 2009 (3) SA 649
(CC); 2009 (6) BCLR 611 (CC) at paras 57-9.
29 Section 9(1) of the Consti tution provides: “[e]veryone is equal before the law and has the right to equal
protection and benefit of the law.”
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too late in the day . On the occasion of the respondent’s withdrawal without
permission from the Commission in November 2020, the Chairperson stated:
“Given the seriousness of Mr Zuma’s conduct and th e impact that his conduct may
have on the work of the Commission and the need to ensure that we give effect to the
Constitutional provisions that everyone is equal before the law, I have decided to
request the Secretary of the Commission to lay a criminal complaint with the South
African Police against Mr Zuma, so that the police can investigate his conduct and in
this regard the Secretary would make available to the police all information relevant
as well as make information available to the National Prosecuting Authority.”
[59] This is a classic example of the Commission invoking its coercive powers. The
question that arises is whether the current situation in which the Commission finds
itself would have arisen if it had timeously invoked its powers of compul sion. This
requires us to look at steps taken by the Commission over time.
[60] When the respondent appeared before the Commission in July 2019, he refused
to answer questions that made him uncomfortable and effectively withdrew his
participation, raising complaints which the Commission viewed as lacking merit. This
must have signaled to the Commission that the use of its coercive powers may be
necessary. However, an agreement between the respondent an d the Commission’s
lawyers was brokered. Although the Commission’s lawyers kept their side of the
bargain, the respondent did not. He failed to submit an affidavit he had promised to
file. He took offence to the Chairperson fixing dates for his future appearance without
consulting his lawyers.
[61] But of more importance is the fact that in December 2019, the Commission was
convinced that a summons should be issued against the respondent. However, instead
of asking that the summons be issued immediately by the Commission’s secretary, the
Commission’s lawyers chose to give the respondent notice, informing him that they
planned to make a substantive application to the Chairperson for authoris ation of the
summons. Shortly thereafter, they launched the application which was served upon
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the respondent. All of this appears not to be required by any law. And the
Commission was aware that it had limited time within which to conduct hearings. As
to why it did not follow the law in relation to issuing summons, we are not told.
[62] Having opted for a formal application, th e Commission did not pursue and
ripen it for hearing diligently. The notice of application required the respondent to file
a notice to oppose and his opposing affidavit on or before 6 January 2020. On that
day notice was filed without accompanying affida vits. The respondent’s attorneys
promised to file affidavits on 10 January 2020. The application was set down for
hearing on 14 January 2020. On the eve of the hearing , the respondent filed a long
affidavit. Since the Commission’s lawyers wanted to fil e a reply the matter was
postponed without fixing a date.
[63] The respondent indicated that he would be going abroad for medical treatment
and that he would be back at the end of March 2020. The Chairperson exempted him
from attendance during that period. But this did not mean that the application could
not be heard in his absence. The Commission failed to set the matter down from
14 January 2020 up to the end of March 2020, when the national lockdown was
declared. There is no explanation as to why this di d not happen. In fact, that
application was only set down for 9 September 2020. Again this long delay is not
explained. The Commission merely says that it lost three months of its time due to the
Covid-19 lockdown. The lockdo wn commenced on 26 March 20 20. The three
months lost by the Commission must be April to June 2020. It is not clear from the
Commission’s papers why the application was set down for 9 September 2020 . The
period July to August 2020 is not accounted for by the Commission.
[64] When the respondent pointed out that 9 September 2020 did not suit his legal
team, the hearing of the application was rescheduled for 9 October 2020. It was only
on that day that a summons aga inst the respondent was authoris ed and issued.
It required the respondent to appear in November 2020. During his appearance then,
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the respondent moved an application for the Chairperson’s recusal. When this failed,
he unilaterally withdrew from the hearing and left the Commission’s venue.
[65] By then the Commission was left with almost no time to compel the respondent
to appear before it by means of laws at its disposal, hence the urgent application it
launched in this Court in December 2020. Had the Commission acted diligently and
in accordance with the relevant law, the present situation could have been avoided.
[66] It is not true that it was only during the re spondent’s wa lk-out in
November 2020 that the Commission realised that intervention by a Court was
necessary. The red lights started flashing in July 2019 when the respondent
unilaterally decided to withdraw from further attendance. Later in September 2020,
having berated the Chairperson for not consulting his attorneys, he made it plain that
he will not participate in the hearings unless the Chairperson recused himself. This
was a build up to what happened in November 2020.
[67] However, the Commission’s maladroit conduct described above is not decisive
of the interest s of justice issue. This factor must be weighed against other factors
including those that are in favo ur of granting direct access. These include enabling
the Commission to conduct a proper investigation of matters it is tasked to determine;
the fact that the matter is not opposed and that it bears reasonable prospects of
success.
[68] With regard to reasons for direct access, the Commission averred:
“One of the most compelling reasons for direct access lies in the pressing public
importance of the matter and prejudice to the public interest if jurisdiction is not
assumed. Given the importance of Mr Zuma’s role as former President, I submit that
it is in the public interest that urgent steps are taken to secure his appearance before
the commission. It is in the public interest to require Mr Zuma to appear before the
Commission to give answers to the matters under investigation as part of his duty of
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accountability. I refer also to what I have stated about importance of the subject of
the Commission’s investigation.”
[69] It is apparent from these reasons that a dismissal of the applicatio n for direct
access would prejudice the public interest in the Commission’s investigations. The
respondent is firmly placed at the centre of those investigations which include an
allegation that he had surrendered constitutional powers to unelected privat e
individuals. If those allegations are true, his conduct would constitute a subversion of
this country’s constitutional order.
[70] It must be plainly stated that t he allegations investigated by the Commission
are extremely serious. If established, they wou ld 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 m ay determine if there is any credence in them or to clear the
names of those implicated from culpability.
[71] The public, whose interest would be frustrated if direct access is refused, is not
responsible for the blunders of the Commission’s lawyers. As a result, the lack of
diligence on the lawyers’ part cannot be attributed to the public. In all these
circumstances I am persuaded that direct access should be granted.
[72] This conclusion renders it unnecessary to determine whether the matter falls
within the exclusive jurisdiction of this Court.
Applications for admission as amici
[73] Three parties applied to be admitted a s amici curiae (friends of the Court). The
first applicant was Advocate Vuyani Ngalwana SC, the second was the Council for the
Advancement of the South African Constitu tion (CASAC) and the third was the
Helen Suzman Foundation (Foundation). The Commission opposed the application
by Ngalwana SC only and supported th at of CASAC. This Court issued directions
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requiring these applicants to file their written submissions on or before
28 December 2020 which was the eve of the hearing of the main application by the
Commission.30
[74] Those directio ns informed the relevant applicants that rulings on their
respective applications would be made at the time of deciding the main application .
This was necessitated by the fact that this Court was still to decide whether it would
entertain the main application. If direct access were to be refus ed, the applications for
admission as amicus would have fallen away, as t here would have been no matter i nto
which the applicants could have been admitted.
[75] It is now settled that the role of an amicus is to help the Court in its
adjudication of the procee dings before it. To this end, the applicant for that position
must, in its application, concisely set out submissions it wishes to advance if admitted.
It must also spell out the relevance of those submissions to the proceedings in question
and furnish reasons why the submissions would be helpful to the Court .31 For the
applicant’s argument to be useful, it must not repeat submissions already made by
other parties.32
30 The directions of 23 December 2020 read:
“1. Council for the Advancement of the South African Constitution, Adv ocate Vuyani
Ngalwana SC and the Helen Suzman Foundation are directed to file written submissions not
later than 13h00 on Monday, 28 December 2020.
2. The decision on whether these parties should be admitted as amici curiae will be taken and
communicated in the Court’s judgment.
3. The parties mentioned in paragraph 1 will not present oral argument at the hearing on 29
December 2020.
4. The Commission may file a response to submissions referred to in paragraph 1, if it so
wishes, on 30 December 2020.”
31 Rule 10(6) of the rules of this Court provides:
“An application to be admitted as an amicus curiae shall–
(a) briefly describe the interest of the amicus curiae in the proceedings;
(b) briefly identify the position to be adopted by the amicus curiae in the proceedings;
and
(c) set out the submissions to be advanced by the amicus curiae, their relevance to the
proceedings and his or her reasons for believing that the submissions will be useful to
the Court and different from those of the other parties.”
32 Rule 10(7) of the rules of this Court provides:
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[76] It is not generally permissible for an amicus to plead new facts which did not
form part of the record or adduce fresh evidence on which its argument is to be based.
Nor can the amicus expand the relief sought or introduce new relief.33 This is because
an amicus is not a party in the main proceedings and its role is restricted to helping the
Court to come to the right decision.
[77] The application by Ngalwana SC does not meet the relevant requirements. He
seeks relief that differs materially from that sought by the Commission and which may
not be established by the facts already on record. He c laims to be acting in the public
interest in terms of section 38(1)(d) of the Constitution. It will be recalled that this
provision confers legal standing on a party that seeks t o enforce rights in the
Bill of Rights by asking for appropriate relief for the breach of those rights.
[78] Accordingly, the application by Ngalwana SC must fail. It cannot be brought
under the guise of an amicus application. It is a different substantive a pplication for
different relief. It should have been instituted as a separate application, provided it
met the requirements of approaching this Court directly.
[79] 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 Founda tion should be admitted as amici
curiae.
“An amicus curiae shall have the right to lodge written argument, provided that such written
argument does not repeat any matter set forth in the argument of the other parties and raises
new contentions which may be useful to the Court.”
33 Rule 10(8) of the rules of this Court provides:
“Subject to the provisions of rule 31, an amicus curiae shall be limited to the record on appeal
or referral and the facts found proved in other proceedings and shall not add thereto and shall
not present oral argument.”
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Merits
[80] The central issue that arises on the merits is whether the respondent should be
compelled to appear before the Commission and testify. The subtext of this issue is
whether upon appearing, he is obliged to answer all questions put to him. T his
requires the determination of rights held by witnesses who testify before a commission
like the present one.
[81] In searching for answers to these issues, t he right place at which to begin is the
Commissions Act. The summons es which the Commissio n seeks this Court to
enforce ar e issued in terms of the Act. Section 3(2) of the Act empowers the
Commission’s secretary to sign and issue summons for the attendance of witnesses at
hearings by the Commission. Once a summons is issued in terms of the section an d
served on a prospective witness, that witness is obliged to comply. If it requires him
or her to appear before the Commission on a fixed date, the witness must do so,
regardless of his or her status or standing in the community.
[82] Compliance in this rega rd does not mean that the witness may just show his or
her face at the Commission and thereafter leave at the time convenient to him or her.
The obligation on the witness is to remain in attendance until the proc eedings are
concluded or he or she is excus ed by the Chairperson of the Commission from
attendance. A breach of this duty constitutes an offence under section 6 of the
Commissions Act.
[83] The undisputed facts here are that the respondent failed to remain in attendance
after his application for recusal was dismissed on 19 November 2020. As a result, the
Commission was impeded from continuing with the hearing that was scheduled for
further dates in November 2020.
[84] In fact , as far back as 28 Se ptember 2020, the respondent had shown an
intention not to appear before the Commission for purposes of testifying. In a letter
addressed by his attorneys to the Chairperson, the respondent berated him for fixing
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the dates of 16 to 20 November 2020 for the respondent’s appearance at the
Commission without first discussing those dates with his lawyers. In that letter the
respondent continued to question the lawfulness of the Commission which he himself
had established in terms of section 84(2)(f) of the Constitution.
[85] He made it quite clear that he would not comply with the process issued by the
Commission and dared the Chairperson to take whatever steps he considered
appropriate. In paragraph 12 of that letter, the respondent’s attorneys stated:
“Until this applicati on for your recusal is finally determined, President Zuma will
take no further part in this Commission and the Chairperson is entitled to take any
such steps as he deems lawful and appropriate. We reiterate that President Zuma has
questioned the lawfulness of the establishment of this Commission. He persists with
this issue and reserves all his rights in this regard.”
[86] The summons was not the only process from the Commission which was
ignored by the respondent. In August and September 2020, the Chairpers on issued
two notices under regulation 10(6) of the Commission’s regulations. These notices
required the respondent to file affidavits with the Commission within specified
periods. To date the respondent has failed to comply with those directions . It is
remarkable that the respondent would flout regulations made by him whilst he was
still President of the Republic.
[87] The respondent’s conduct in defying the process lawfully issued under the
authority of the law is antithetical to our constitutional order. We must remember that
this is a Republic of laws where the Constitution is supreme. Disobeying its laws
amounts to a direct breach of the rule of law, one of the values underlying the
Constitution and which forms part of the supreme law. In our system, no one is above
the law. Even those who had the privilege of making laws are bound to respect and
comply with those laws. For as long as they are in force, laws must be obeyed.
JAFTA J
33
[88] In these circumstances, I am satisfied that the claim for compelling the
respondent to obey process from the Commission and testify before it, has been
established.
Witnesses’ rights
[89] Before leaving the Commission on 19 November 2020, counsel for the
respondent cautioned that if his client were compelled to attend he would take the
witness stand but would not testify. On this issue counsel said:
“If you blow us, today, you do not agree with us – as I have said, I have a mountain to
climb – what happens? Do we get Mr Zuma here as a guarantee? No, no, if we are
approached that way, we will just – even if we lose, we will review you, we will go as
far as wherever and that is not helpful . If you force me to bring him here without the
climate being created for him to believe that he is not being charged. Well, I put him
there, Chair, and he will exercise his right to say nothing.”
[90] Although clumsily put, it is apparent that the respondent and his legal team
believe that he has a right to remain silent during the proceedings before the
Commission. However the right to remain silent that I am aware of is the one
guaranteed by section 35(1)34 and (3)35 of the Constitution and under the common law.
34 Section 35(1) of the Constitution provides:
“Everyone who is arrested for allegedly committing an offence has the right—
(a) to remain silent;
(b) to be informed promptly—
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be used i n
evidence against that person;
(d) to be brought before a court as soon as reasonably possible, but not later than—
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours
expire outside ordinary court hours or on a day whic h is not an ordinary
court day;
(e) at the first court appearance after being arrested, t o be charged or to be informed of
the reason for the detention to continue, or to be released; and
JAFTA J
34
But that right is evidently available to arrested and accused persons only. When he
appears before the Commission, the respondent’s status is that of a witness. He is not
an arrested person. Nor is he an accused person. Moreover, a witness in a criminal
trial has no right to remain silent.
[91] There are cogent considerations that militate against permitting witnesses to
invoke the righ t to remain silent before the Commission. The first is that such a
proposition is contrary to the plain text of the Commission s Act. It is implicit that the
Act requires witnesses to answer all questions, barring the issues covered by
section 3(4) which I will addre ss in a moment. Section 6 of that Act makes it a
criminal offence to refuse to answer lawfully put questions fully and satisfactorily.
(f) to be released from detention if the interests of justice permit, subject to reasonable
conditions.”
35 Section 35(3) of the Constitution provides:
“Every accused person has a right to a fair trial, which includes the right—
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be i nformed of this right
promptly;
(g) to have a legal practitioner assig ned to the accused person by the state and at state
expense, if substantial injustice would otherwise result, and to be i nformed of this
right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if that is not
practicable, to have the proceedings interpreted in that language;
(l) not to be convicted for an act or omission that was not an offence under either
national or international law at the time it was committed or omitted;
(m) not to be tried for an offence in respect of an act or omission for which that person
has previously been either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time that the offence was
committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.”
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35
[92] The other consideration is that allowing witnesses before a commission to
invoke the right to remain silent would seriously undermine commissions and frustrate
their purpose to investigate matters. This would include, as here, matters of public
concern and interest. In Magidiwana this Court observed:
“The power to appoint a commission of inquiry is mandated by the Constitution. It is
afforded to the President as part of his executive powers. It is open to the President to
search for the truth through a commission. The truth so established could inform
corrective measures, if any are recommended, influence future policy, executive
action or even the initiation of legislation. A commission's search for truth also
serves indispensable accountability and transparency p urposes. Not only do the
victims of the events investigated and those closely affected need to know the truth:
the country at large does, too. So ordinarily, a functionary setting up a commission
has to ensure an adequate opportunity to all who should be heard by it. Absent a fair
opportunity, the search for truth and the purpose of the Commission may be
compromised.”36
[93] I conclude that witnesses who appear and testify before the Commission have
no right to remain silent. On the contrary, they are oblige d to give evidence and
answer all questions lawfully put to them, except only questions that address matters
falling within the ambit of section 3(4) of the Commissions Act.
The exception
[94] Section 3(4) affords witnesses before a commission the protections which are
enjoyed by witnesses in a criminal trial. This section extends the application of laws
relating to privilege, to the hearings of commissions. Therefore , for a witness in a
commission hearing to lawfully decline to answer a question, it must be shown that
the refusal is based on legal privilege which would have been upheld if the
proceedings amounted to a criminal trial.
36 Magidiwana v President of the Republic of South Africa (Black Lawyers Association Amicus Curiae) [2013]
ZACC 27; 2013 JDR 1788 (CC); 2013 (11) BCLR 1251 (CC) at para 15.
JAFTA J
36
[95] Witnesses at a criminal trial enjoy a s tatutory privilege against
self-incrimination.37 This is a codification of the common l aw principle to the effect
that no one may be compelled to give evide nce that incriminates himself or herself.
They cannot be forced to do so before or during the trial .38 This principle was
affirmed by this Court in Ferreira where it was observed that it forms part of the fair
trial rights guaranteed by the predecessor to section 35 of the Constitution.39
[96] In Ferreira this Court was concerned with the question whether a person
summoned to an inquiry under section 417 of the Companies Act 40 enjoyed the
privilege not to answer questions which would incriminate him or her in the
commission of an offence. Ackermann J and Chaskalson P (writing for the majority)
had no difficulty i n locating such a right in the i nterim Constitution. In this regard ,
Ackermann J said:
“I conclude that the right of a person not to be compelled to give evidence which
incriminates such person is inherent in the rights mentioned in section 25(2) and
(3)(c) and (d). The fact that such rights are, in respect of an accused person, included
(implicitly or otherwise) in section 25(3) of the Constitution, does not for that reason
preclude the Court from giving residual content to section 11(1) and holding that
section 11(1) protects rights similar to those in section 25(3) (c) and (d) in contexts
and in respect of persons other than those there mentioned.”41
[97] It is evident from this statement that Ackerma nn J held the view that the rights
in section 25(3) of the i nterim Constitution did not apply to perso ns summoned in
terms of section 417 of the Companies Act to an inquiry because those persons are not
accused persons. However, he held that their right to freedom guar anteed by
37 Section 203 of the Criminal Procedure Act 51 of 1977 provides:
“No witness in criminal proceedings shall, except as provided by this Act or any other law, be
compelled to answer any question which he would not . . . , have been compelled to answer by
reason that the answer may expose him to a criminal charge.”
38 R v Camane 1925 AD 570 at 575.
39 Ferreira v Levin N.O. [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) at paras 79 and 186.
40 61 of 1973.
41 Ferreira above n 39 at para 79.
JAFTA J
37
section 11(1) of the i nterim Constitution, included the “right not to be compe lled to
give evidence against oneself in a section 417 enquiry”.42
[98] On the contrary, Chaskalson P located the right against self -incrimination in
section 25 of the i nterim Constitution. He did not see any difficulty in accepting that
persons summoned under section 417 could invoke fair trial rights of accuse d persons
in section 25 of the i nterim Constitution to challenge the validity of section 417. He
observed:
“Ackermann J has demonstrated that the rule against being compelled to answer
incriminating questions is inherent in the right to a fair trial guaranteed by s 25(3).
Because he held that the applicants could not rely on s 25(3) he analysed the issues in
the present case in terms of s 11(1). The reasoning that led him to conclude that
s 417(2)(b) is inconsistent with s 11(1) would also have led him to conclude that it is
inconsistent with s 25(3). It seems to me to be clear that this is so. To some extent
his reasons are shaped by the fact that the issue is treated as one implicating freedom
and not the right to a fair trial. In substance, however, they can be applied to a s
25(3) analysis and I have nothing to add to them, nor to his reasons for the conclusion
that the issue of derivative evidence is one that ought properly to be decided by a trial
Court.”43
[99] A proper reading of Ferreira reveals that the majority accepted that in
appropriate cases, the privilege against self -incrimination may be located in
section 11(1). In making this concession, Chaskalson P said:
“Against this background I can see no objection to accepting provisionally that s
11(1) is not confined to the protection of physical integrity and that in a proper case it
may be relied upon to support a fundamental freedom that is not otherwise protected
adequately under chap 3.”44
42 Id at para 80.
43 Id at para 186.
44 Id at para 185.
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38
[100] Section 11 of the interim Constitution entrenched the rights in section 12 of the
Constitution. Chief among them is the right to freedom and security of the person. It
is this right which the minority in Ferreira concluded encompasses the privilege
against self-incrimination.
[101] Although witnesses before the Commission may not assert the rights in
section 35(1) and (3) which are reserved for arrested and accused persons, those
witnesses may invoke the rights guaranteed by sect ion 12 of the Constitution. The
latter provision protects, among others, the right to freedom and security of the person
which, on the authority of Ferreira, includes the privilege against self-incrimination.
[102] It is evident from this analysis that a statu tory provision that compels witnesses
to give self -incriminating evidence would be inconsistent with section 12 of the
Constitution. As a result, when that statute is interpreted, the obligation imposed on
courts by section 39(2) of the Constitution is tr iggered.45 The Commissions Act is
such a statute.
[103] Section 39(2) obliges us to interpret section 3(4) of the Commissions Act in a
manner that promotes the objects of the Bill of Rights. In Makate this Court held:
“The objects of the Bill of Rights are pr omoted by, where the provision is capable of
more than one meaning, adopting a meaning that does not limit a right in the Bill of
Rights. If the provision is not only capable of a construction that avoids limiting
rights in the Bill of Rights but also bea rs a meaning that promotes those rights, the
court is obliged to prefer the latter meaning.”46
[104] Here section 3(4) clearly bears a meaning that promotes the right not to be
compelled to give self -incriminating evidence, guaranteed by section 12 of the
Constitution.47 According to our jurisprudence, we are bound to prefer the meaning of
45 Makate v Vodacom Ltd [2016] ZACC 13; 2016 (4) SA 121 (CC); 2016 (6) BCLR 709 (CC) at para 88.
46 Id at para 89.
47 Section 12(1) of the Constitution provides:
JAFTA J
39
section 3(4) which protects witnesses who testify be fore a commission, against
self-incrimination.
[105] Contrary to a ll this, CASAC argued that section 3(4) must be construed as
excluding the privilege against self -incrimination but retaining all other privileges.
This interpretation, CASAC submitted, is consistent with section 3(4) itself and
section 35 of the Constitution. The flaw in this argument lies in its foundation. There
is nothing in the language of section 3(4) which suggests that the privilege against
self-incrimination is excluded whilst the other privileges enjoyed by witnesses in a
criminal trial are retained. There is no textual foundation for contending that the
interpretation advanced by CASAC is consistent with section 3(4).
[106] In addition, it is wrong to suggest that CASAC’s interpretation is consistent
with section 35 of the Constitution. As mentioned, section 35 confers rights on
arrested and accused persons. It does not safeguard rights of witnesses, even in
criminal proceedings. Yet section 3(4) affords protection to witnesses who testify
before a commission of inquiry.
[107] Reliance on the regulations to buttress CASAC’s interpretation is misplaced for
a numbe r of reasons. First, in our law a regulation cannot be used to interpret a
provision in the statute, let alone to give a restrictive meaning to the language bearing
a wider meaning .48 Second, the regulations themselves acknowledge that a witness
before a commission may decline to answer a question on the ground of a privilege
envisaged in section 3(4) of the Commissions Act. Third, the fact that regulation 8(2)
refers also to a self -incriminating answer does not mean that a witness is not entitled
“Everyone has the right to freedom and security of the person, which includes the right —
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.”
48 Road Accident Fund v Masindi [2018] ZASCA 94; 2018 (6) SA 481 (SCA) at para 9.
JAFTA J
40
to the privilege against self-incrimination. Regulation 8(2) must be read together with
regulation 8(1) which permits witnesses to invoke section 3(4) privileges. Read in this
way, what regulation 8(2) means is that if the priv ilege is not claimed and a
self-incriminating answer is given, that answer will not be admissible as evidence
against that witness in criminal proceedings. Lastly, section 203 of the
Criminal Procedure Act protects witnesses not only against the use of their own
incriminating evidence at criminal trials but also from answering questions which
would expose them to criminal charges. For all these reasons, the interpretation
advanced by CASAC cannot be sustained.
[108] The privilege against self -incrimination is not the only privilege witnesses
before a commission are entitled to. There may be others. The test is whether such a
privilege would have applied to a witness in a criminal trial, for it to be covered by
section 3(4) of the Commissions Act.
[109] However, it lies with a witness before a comm ission to claim privilege against
self-incrimination. In the event of doing so, the witness must raise the question of
privilege with the Chairperson of the Commission and must demonstrate how an
answer to the question in issue would breach the privilege . If the Chairperson is
persuaded, he or she may permit the witness not to answer the question. 49 Privilege
against self -incrimination is not there for the taking by witnesses. There must be
sufficient grounds that in answering a question, the witness will incriminate himself or
herself in the commission of a specified crime.
Remedy
[110] Section 172 (1)(b) of the Constitution vests wide remedial powers on courts
when deciding constitutional matters. The flexibility of these powers enable s courts
to craft orders suitable to the resolution of actual disputes between parties. Sometimes
49 S v Carneson 1962 (3) SA 437 (T) at 439H.
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41
a court is required to forge an order that addresses the underlying dispute between
parties.50
[111] Here the real dispute is about the respondent’s attendance at the Commission’s
hearing for purposes of testifying and answering questions lawfully put to him.
Consequently, it is just and equitable to direct him to obey all summons es and
directives lawfully issued by the Commission. For the sake of certainty, declarators
defining the parties’ rights during the hearing at the Commission must be added to the
order to be issued.
Costs
[112] Although the respondent has not opposed the relief sought, the Commission
asked for costs against him. The Commission contended that it was the unlawful
conduct on the part of the respondent which forced it to approach and seek relief from
this Court. If the respondent had obeyed the process lawfully issued by the
Commission, continued the argument, the Commission w ould not have been
compelled to institute and fund litigation whose purpose was to stop the respondent’s
unlawful conduct.
[113] The rule that a private party that loses in constitutional litigation against organs
of state should be spared from liability to pay co sts, does not apply here. Th is rule
was designed to protect private parties which raised genuine constitutional issues.
This is not such a case. Indeed, Biowatch cautioned:
“At the same time, however, the gen eral approach of this Court to costs in litigation
between private parties and the state, is not unqualified. If an application is frivolous
or vexatious, or in any other way manifestly inappropriate, the applicant should not
50 Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo [2009] ZACC 32; 2010 (2)
SA 415 (CC); 2010 (3) BCLR 177 (CC) at para 97.
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42
expect that the worthiness of its cause will immunise it against an adverse costs
award.”51
[114] This holds true also in respect of respondents who raise frivolous defences or
whose unlawful conduct has forced the state to litigat e. Like the applicants described
above, they do not enjoy a ny immunity against adverse costs orders. But here the
costs order is justified by the reprehensible conduct of the respondent towards the
Commission. By ignoring process from the Commission, he did not only contravene
the Commissions Act but he also bre ached regulations made by him for the effective
operation of the Commission. His conduct seriously undermined the Commission’ s
investigation, that included matters on which the respondent may be the only witness
with personal knowledge. For example, as t he President at the relevant time, the
respondent was the only person who could appoint and dismiss Ministers from
Cabinet. And the Commission was mandated to investigate issues relating to the
appointment and dismissal of Ministers from Cabinet during th e respondent’s
presidency. These facts outweigh the respondent’s decision not to oppose the relief
sought.
Order
[115] In the result the following order is made:
1. The application for direct access is granted.
2. Advocate Vuyani Ngalwana SC is not admitted as amicus curiae.
3. The Council for the Advancement of the South African Constitution and the
Helen Suzman Foundation are admitted as amici curiae.
4. Mr Jacob Gedleyihlekisa Zuma is ordered to obey all summons es and
directives lawfully issued by the Judicial Commissio n of Inquiry into
Allegations of State Capture, Corruption and Fraud in the Public Sector,
including Organs of State (Commission).
51 Biowatch Trust v Registrar , Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR
1014 (CC) at para 24 (Biowatch).
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43
5. Mr Jacob Gedleyihlekisa Zuma is directed to appear and give evidence
before the Commission on dates determined by it.
6. It is d eclared that Mr Jacob Gedleyihlekisa Zuma does not have a rig ht to
remain silent in proceedings before the Commission.
7. It is declared that Mr Jacob Gedleyihlekisa Zuma is entitled to all privileges
under section 3(4) of the Commissions Act, including the p rivilege against
self-incrimination.
8. Mr Jacob Gedleyihlekisa Zuma must pay the Commission’s costs in this
Court, including costs of two counsel.
For the Applicant:
For the First Amicus Curiae:
For the Second Amicus Curiae:
For the Third Amicus Curiae:
T Ngcukaitobi SC and J Bleazard
instructed by State Attorney,
Johannesburg
MM Le Roux and O Motlhasedi
instructed by Werksmans Attorneys
V Ngalwana SC
M du Plessis SC, J Thobela -Mkhulisi
and C Kruyer instructed by Webber
Wentzel