By Ndivhuwo Ishmel Moleya

On 9 January 2018, former President Jacob Zuma announced that he had decided to appoint a commission of inquiry to investigate the allegations of state capture contained in the former Public Protector, Thuli Madonsela’s report entitled ‘State of Capture’. In that report, the Public Protector proposed a remedial action, which partly required the president to appoint a commission of inquiry (the commission) ‘headed by a judge’ selected by the Chief Justice. It is now common cause that Chief Justice, Mogoeng Mogoeng, selected Deputy Chief Justice of the Constitutional Court (CC), Raymond Zondo, to preside over the commission. The appointment should be welcomed as it will bring integrity into the works of the commission. However, it brings into sharp focus the question of the appropriateness of appointing serving judges to preside over commissions of inquiry. This article explores this question.

The lawfulness of appointing sitting judges to preside over commissions of inquiry

Our law does not prohibit the appointment of judges, serving or retired, from presiding over commissions of inquiry. Section 84(2)(f) of the Constitution simply confers the president the power to appoint a commission of inquiry. The provision does not specify or prescribe who is eligible for appointment as a member of a commission of inquiry. Similarly, the Commissions Act 8 of 1947 (the Act) does not deal with this aspect. The Act merely empowers the president to make proclamations and/or regulations regarding the appointment of a commission of inquiry. It follows therefore, that the president is at liberty to appoint any competent candidate to serve as a member of a commission of inquiry. It has become a common practice to appoint retired judges, senior counsel or serving judges to preside over commissions of inquiry. The appointment of judges as members of a commission of inquiry was found to be constitutionally permissible in the case of South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 883 (CC). In the Heath case, at para 34, the CC pointed out that ‘[i]n appropriate circumstances judicial officers can no doubt preside over commissions of inquiry without infringing the separation of powers contemplated by our Constitution.’ The court, however, was careful to point out that ‘[i]t is undesirable … to lay down rigid tests for determining whether or not the performance of a particular function by a judge is or is not incompatible with the judicial office.’

The appointment of serving judges to preside over commissions of inquiry in South Africa (SA) is not unprecedented. In the Commission on the Ellis Park Disaster, the Hefer Commission, the Khampepe Commission and the Seriti Commission, serving judges were appointed. However, the appropriateness of the practice has received minimal attention. The appropriateness of the practice was, however, called into question in the case of City of Cape Town v Premier, Western Cape, and Others 2008 (6) SA 345 (C), at para 167, where a serving judge was embroiled in a dispute between political opponents.

Should sitting judges preside over commissions of inquiry?

The fact that it is lawful to appoint serving judges to preside over commissions of inquiry does not necessarily mean the practice is at all appropriate or desirable. This is indeed implied in the CC’s observations in the Heath case where it pointed out that in ‘appropriate circumstances judicial officers can no doubt preside over commissions of inquiry.’ The statement implies that there may be certain circumstances where it would be inappropriate to appoint a serving judge to preside over a commission of inquiry. Indeed, commissions of inquiry are sometimes mandated to investigate socially and politically controversial issues of national interest. The public does not always welcome their findings. In some cases, their findings are challenged in the courts. Their findings may also form the basis of a civil or criminal action. The terms of reference of a commission of inquiry may require the commission to investigate broad, complex and politically
sensitive issues, which require much time and undivided attention of the commissioners.

There are several reasons that militate against appointing sitting judges to preside over commissions of inquiry. When a sitting judge is appointed to preside over a commission of inquiry, the appointee does not necessarily cease to be a judicial officer. Instead, the appointed judge continues to carry out normal duties as a member of the court unless given special leave. The judge will therefore have to perform both normal duties as a judicial officer and as a member of the commission. It can hardly be gainsaid that such a situation would affect the judge’s normal duties as a judicial officer.

In the Heath case, at paras 29-30, the CC observed that the fact that the work that a judge is required to perform ‘will occupy the judge to such an extent that he or she is no longer able to perform his or her normal judicial functions’ weighs against appointment to another post. Commissions of inquiry usually take longer to complete their mandate. Therefore, if a judge is granted special leave to serve as a member of a commission, the demands of the judicial office may be neglected.

In Heath, at para 45, the CC found that the ‘indefinite nature of the appointment … preclude[d] the head of the unit from performing his judicial functions.’ More so, at para 43, it pointed out that ‘[w]hilst the length of the appointment is not necessarily decisive in the determination of the question whether the functions a judge is expected to perform are incompatible with the judicial office, it is … a relevant factor.’ Participation of a judge in commission of inquiry that is likely to take long may, therefore, ‘impair his/her ability to carry out judicial functions’ (City of Cape Town at para 182).

The observations of the Indian Supreme Court in T. Fenn Walter & Ors vs Union Of India & Ors Appeal (civil) 3993 of 2002 are apposite in this regard. In that case, the court stated that the ‘appointment of Judges to head or chair a commission of inquiry or to perform other non-judicial work would create [an] unnecessary burden on the Judges and it would affect the administration of justice.’ The court further observed that the work of commissions take a considerable amount of time and that if a ‘sitting Judge is appointed, considerable time is lost and the Judge would not be in a position to attend to his regular judicial work.’ These observations cannot be gainsaid.

The controversy that surrounds the works of commissions of inquiry also militate against appointing sitting judges as commissioners. Most of the investigations involve politically and socially controversial issues. In a compilation dealing with commissions of inquiry in Canada, Roderick Alexander Macdonald pointed out that although judges bring ‘knowledge, experience and impartiality to the inquiry process’, ‘involving a sitting judge in what may turn into a partisan political issue can threaten the independence of the judiciary’ and ‘[t]he reputation of the particular judge.’ (‘An Analysis of the Forms and Functions of Independent Commissions of Inquiry (Royal Commission) in Canada’ at p 13) (www.mcgill.ca, accessed 16-1-2018).

In Heath, at paras 29-30, the CC observed that where, among other factors, the non-judicial work that a judge is required to perform ‘creates the risk of judicial entanglement in matters of political controversy’, the judge should decline appointment. It is so, because such controversies may muddle the integrity of the judge, and ultimately, the independence of the court in which the judge serves. The Goldenberg Commission of Inquiry in Kenya is a classic example of why it is not desirable to appoint serving judges to preside over commissions of inquiry. The report of that commission was a subject of controversy and multifarious litigation. It resulted in an awkward situation where a report compiled by a member of a superior court was impugned in the lower courts. All this led the Commission to recommend that ‘no sitting judge should be appointed to head or participate in a public inquiry unless the Chief Justice has first satisfied himself that the nature of the intended public inquiry has no political implications.’ The recommendations were based on the following reasons:

• Judges who serve in politically motivated inquiries run the risk of being dragged into politics and having their reputation for impartiality ruined.
• The tendency to sue members of commissions for things done as commissioners exposes judges to the risk of being condemned to personally pay costs of the suit.
• The appointment of serving judges keeps them away from their substantive duties for inordinately long periods to the detriment of litigants.
• Any shortcomings in the reports of commissions may follow the judge to the bench since there is no system of appeal through which the judge could be vindicated.

The controversial nature of issues investigated by commissions of inquiry is not always readily discernible. A seemingly non-controversial issue may, on investigation, turn out to be controversial. In the same way, an issue, which is thought to be suitable for a serving judge to investigate, may turn out to be a threat to judicial independence and the reputation of impartiality of that particular judge. This simply underscores the fact that the problems that come with appointing serving judges to preside over commissions of inquiry cannot be resolved by simply ‘deciding in any particular case whether it is “appropriate” for a judge to involve him or herself, in the particular commission’ (City of Cape Town at para 184).

In my view, the proper approach is espoused in the City of Cape Town case where the court stated that ‘active judges should, as a matter of principle, not chair commissions of inquiry’ (para 187). This approach obviates the need to grapple with the question whether it is ‘“appropriate” for a judge to involve him or herself, in the particular commission.’

Conclusion

Although not unlawful, the practice of appointing serving judges to preside over commissions of inquiry should be avoided. If needs be, serving judges should only be appointed where it is crystal clear that the independence of the judiciary and reputation of impartiality of the particular judge will not be threatened, and where there are no other suitable candidates. There are clearly more plausible reasons to disqualify serving judges from presiding over commissions of inquiry than there are for appointing them. It is so that serving judges clothe the works of commissions with integrity, which is necessary to maintain public confidence in the process. More so, that they possess the necessary experience and skills required for conducting a commission of inquiry. However, less cannot be said of retired judges. They too possess these qualities. Moreover, they have more time at their disposal than sitting judges.

Ndivhuwo Ishmel Moleya LLB (Univen) is a candidate attorney at Adams & Adams in Pretoria.

This article was first published in De Rebus in 2018 (March) DR 47.