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Red flags flying over commission regulations

Publish date: 13 February 2018
Issue Number: 4398
Diary: Legalbrief Today
Category: State capture

Several red flags should be raised in relation to the content and effect of the recently-published regulations relating to the state capture commission, says Accountability Now's Paul Hoffman SC, in an analysis on the Daily Maverick site. The ‘first and foremost’ red flag is the person put in charge of the purse strings of the commission – the ‘captured’ Minister of Justice, Michael Masutha. Hoffman argues that Masutha’s ‘clear conflict of interest is so cringe-worthy that it beggars belief that his department has lit upon him as the controller of the budget’ of the commission. He adds: ‘Due to the fact that the Cabinet members are collectively and individually responsible for the exercise of their powers and the performance of their functions, it is not appropriate that anyone in the Cabinet should control the finances of the commission.’ The second red flag, says Hoffman, involves regulation eight, which outlines the fair trial right of all accused persons not to be compelled to give self-incriminating evidence. He argues the rationale for including this provision 'does not exist in the circumstances which pertain to the phenomenon of state capture'. As the work of the commission 'does not necessarily involve the uncovering of unknown information', its work should not inadvertently be the pretext for delivering ‘get out of jail free’ cards to those who choose to share with the commission. The third red flag, says Hoffman, involves Thuli Madonsela’s State of Capture report. He says what she should have been done was to ask (not tell) the Deputy President, Cyril Ramaphosa, to appoint a commission of inquiry. Only if he refused to do so without justification would it become necessary to apply to court for an order compelling him to do so. ‘It is not appropriate… for the Public Protector to assume powers which Parliament has given to the President. It was accordingly not appropriate for Madonsela to take the remedial action set out in her State of Capture report. She ought to have invoked section 90 read with section 96 of the Constitution and she ought to have respected the delegatus non potest delegare principle that applies.’ The best option now, says Hoffman, is for the commission to recommend prosecutions, without receiving evidence itself. ‘If the regulations stand, then taking evidence precludes that evidence from being used in prosecutions which should follow. If there are any substantial witnesses who are currently unknown and who might only come forward if indemnified, it is their civic duty to approach the commission now and to spill the beans before any moves to correct, amend or substitute the regulations are made.’

Full analysis on the Daily Maverick site