It is critical to observe that the Zondo commission of inquiry into allegations of state capture is designed to unearth the truth. But truth alone – as we are learning – is not enough. Some of us want justice. I am with them. Whoever stole the rainbow needs to give it back and be punished.

Here I consider whether the commission will give us a solid foundation on which to pursue justice. The answer lies in understanding the much-neglected law of evidence.

The law of evidence is neglected because it is partly overly complex, an insufferable labyrinth – but it is also a mess, making it virtually, in some respects, impenetrable. This leaves room for the lazy and the very determined – and there are none so determined as those, with endless resources, facing a criminal prosecution.

One has, under our Constitution, the right against self-incrimination – the right not to assist the State in convicting one of an offence. Very early on this right was called upon when under the then prevailing Companies Act (specifically section 417(2)(b) of the Companies Act 61 of 1973), in Ferreira v Levin no and othersVryenhoek and others v Powell no and others 1996 (1) SA 984 (CC) (“Ferreira v Levin”), the question of whether a director could be compelled to provide information which could incriminate him or her under the threat of punishment arose.

The following legal distinctions must be observed. There are effectively three kinds of law:

  1. The Constitution – the supreme law – all other law or conduct inconsistent with it is invalid to the extent of the inconsistency;
  2. Statutory law – made by Parliament, such as, for Instance, the Income Tax Act, the Road Traffic Act, the Sexual Offences Act. Statutes, also known as legislation, are often rather abstract and so they often empower some official to make “regulations” to guide in the application of the Statute. Crucially, however, the Statute prevails over the regulation – if there is a conflict, and regulations are invalid and void if they go beyond the scope of the authority granted to the official; and
  3. Common law – the law as declared by judges, based on the facts of actual cases, carried forward by the doctrine of precedence.

There are also different kinds of incriminating evidence – at least two need to be discerned for our purposes:

  1. Direct evidence – statements made by a person in testifying, such as: “Yes, I killed John Doe”; and
  2. Derivative evidence – such as testimony as to where one discarded the murder weapon. One may say, for instance: “I threw the gun – my gun – into the Jukskei on the road to Haartebeespoort Dam.”

Now, to return to Ferreira v Levin – the court held that one may not be compelled to incriminate oneself by direct evidence. Thus, anything that one says – under compulsion – may not be used in evidence later against one. However, the default will be the opposite for derivative evidence: derivative evidence is admissible – subject to a discretion of the presiding officer – to exclude it if he or she thinks it will render one’s trial unfair. So, if the police went, following on your testimony, and retrieved the murder weapon, which matches ballistically to the murder in question, it is admissible, by default. This is, under our legal system, because of the priority which the Constitutional Court enjoys, the law on self-incrimination.

The significance of this is that section 3 of the Commissions Act authorises a commission to summons witnesses to provide information as it requires – upon threat of punishment of up to six months imprisonment (section 6). Section 3(4) makes the law of witness privilege applicable to witnesses compelled to give information before a commission. This makes the law – declared by our Constitutional Court – applicable to the witness testimony before the State Capture Commission.

One may understand how former President Jacob Zuma would want to have altered this position. Indeed, in his last few days as president, he passed regulations – purportedly under the Commissions Act – making both types of incriminating evidence, inadmissible. There was an outcry, and a change of president. Our new president then – obviously having heard the outcry and having taken advice – passed new regulations that state:

• Direct self-incriminating evidence is inadmissible;

• With regard to derivative evidence: nothing, except to delete the provision under the former regulations making derivative evidence inadmissible.

Is this right? Does it make sense? No. Neither. The right thing to do – from the start – would have been to observe that the Commissions Act makes the law relating to witness privilege applicable so that the entire issue is already governed under Ferreira v Levin. Zuma might have known this and deliberately sought to change it.

Under Cyril Ramaphosa – one may only imagine he was badly advised – indeed, the same team working for Zuma may have advised him. To be clear – it would have been better if there were never any regulations on this point. They are not only unnecessary, but mischievous, or at odds with other law – and that is the true mischief: law at odds with itself.

So, what is the position? I expect the answer is fairly straightforward: to the extent to which the regulations are at odds with either, the Commissions Act, or the Constitution, they are invalid. But then, why were they passed, what is their function? Why was one regulation altered or deleted and not the other – and, after all – this was all done after we escaped the jaws of capture and Zuma and these laws were passed by our new president.

Here is the problem. It is not that this poses an insoluble problem in law. It is that it poses a problem at all. Enough of a problem that anyone who is looking to avoid facing justice may raise – for perhaps 10 years to come – all the way to the Constitutional Court. Worse, don’t mistake any apparent cooperative attitude to anyone freely sharing information. They may know that there is an arguable gap in the law – and while there is, it’s better to throw all the information one can imagine in there – safe, for the next ten years. This is, by all accounts, an unmitigated mess.

23 August 2018

James Grant

(Published on EWN)

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