Commissions of inquiry aim to probe and advise, not adjudicate

When former chief justice Raymond Zondo was chairing the state capture commission, he was “performing a judicial function”, the Johannesburg high court said this week when it dismissed an application by minerals & energy minister Gwede Mantashe to set aside some of the findings of his report.

“The chairing of a commission of inquiry falls squarely within what are ordinarily and legally considered to be judicial functions,” said judge Fiona Dippenaar.

A commission’s report cannot be appealed as a judgment can

This part of the judgment was not the main reason Mantashe was sent packing. It was an “in any event” and “even if [I am wrong]” add-on in a judgment that is sound overall. But these words reflect a misconception that has crept into the public discourse around commissions: a blurring of the distinction between these bodies and courts.

The elision is understandable in a way. The Farlam commission into the Marikana massacre, the Zondo commission, and now the Madlanga commission into allegations of criminality, political interference and corruption in the criminal justice system were all chaired by judges. In each of them, we witnessed proceedings that looked and felt very similar to what we see in our courts: a judge, lots of lawyers, witnesses, rulings, oaths and — likely still to come in the Madlanga commission — copious cross-examination.

However, commissions are, in their functions and nature, essentially different from courts. What we expect of them should therefore also be different. If our expectations are wrong, public confidence in both commissions and courts can be undermined.

In the 1998 South African Rugby Football Union judgment, which dealt with a decision by former president Nelson Mandela to appoint a commission of inquiry into the administration of rugby, the Constitutional Court said the functions of a commission of inquiry were to “determine facts and to advise the president through the making of recommendations”. The court went on to say: “The president is bound neither to accept the commission’s factual findings nor … follow its recommendations … It is a mechanism whereby he or she can obtain information and advice.”

Some 20 years later, retired Supreme Court of Appeal (SCA) judge Robert Nugent said in his commission of inquiry report into governance at the South African Revenue Service that “misconceptions” arise when commissions and their processes are likened to those of a court.

“A commission of inquiry is not an adjudicative body,” Nugent said. “It is what the language conveys, which is a body conferred with authority to make inquiry, and then to report to the president what its inquiries have shown … That means its process is proactively inquisitorial, in which the commission seeks out information for itself, unlike a court in adversarial litigation that is reactive to material others place before it.“

The Mantashe judgment, which came out this week, was not, strictly speaking, about the difference between courts and commissions. It dealt with a narrow question: whether Mantashe was required to obtain permission from the president of the SCA before taking Zondo to court. The Superior Courts Act (SC Act) says no civil proceedings may be instituted against any judge without the consent of the head of their court. In the case of a chief justice, it must be the SCA president.

Mantashe did not get consent. He argued he didn’t need to in this case, because Zondo was “not performing judicial functions but was simply chairing the commission”.

The judge said this line of reasoning was wrong. The SC Act required consent when judges were acting even their personal capacities, and it drew no distinction between judicial and non-judicial capacities, she said.

But in any event, Zondo was indeed performing a judicial function, the judge said. She referred to the definition of “service” in the Judges’ Remuneration and Conditions of Employment Act (JR Act), which expressly includes “service as a chairperson or a member of a commission as contemplated in the Commissions Act”. She added that chairing a commission of inquiry “falls squarely within what are ordinarily and legally considered to be judicial functions”.

However, judiciary expert prof Cora Hoexter has characterised chairing a commission as a non-judicial, “extraneous” function.

She has written that the constitution associates judicial matters with its courts: the judicial authority of the republic is vested in “the courts”, the “judicial system” consists of the various courts, judges and acting judges are appointed “not in the abstract but as members of particular courts”.

South African judges have in fact always performed extraneous functions, and in this country there is a long and notable tradition of depending on judges to chair governmental commissions of inquiry — often, if erroneously, referred to as ‘judicial commissions’.

Judges are not necessarily prevented from “undertaking non-judicial functions in addition to their core activities”, Hoexter writes. “South African judges have in fact always performed extraneous functions, and in this country there is a long and notable tradition of depending on judges to chair governmental commissions of inquiry — often, if erroneously, referred to as ‘judicial commissions’.”

The JR Act clearly includes non-judicial functions, such as chairing bodies established by law, in the concept of “service”. For example, the chair of the board of Legal Aid South Africa (Lasa) must be a judge, as the relevant statute requires this. That doesn’t mean that a judge is performing judicial activities when that person acts as chair of the Lasa board.

What is important is that commissions are not courts, just as statutory bodies chaired by a judge are not courts.

Commissions may be (and often are) chaired by professors, attorneys or advocates. In fact, anyone can be appointed to chair a commission, and that person does not have to be a lawyer. A chair, whether a judge or anyone else, does exactly the same job — inquiring into whatever the terms of reference refer to and then advising.

Whereas a court adjudicates, a commission’s job is to investigate, so the respective processes can be very different. A commission’s chair may be much more robust and involved in the process than a judge. In courts, the litigants run the show — they decide what witnesses to call and what evidence to lead — and the judge is largely a passive adjudicator. But the chair of a commission may decide a particular question is important and gather evidence on it. A commission chair may also decline to hear a witness or refuse to allow cross-examination in certain circumstances. For example, the rules of the Madlanga commission provide that there is no automatic right to cross-examination. The chair “may permit cross-examination on such terms as he may determine should he deem it necessary and in the best interests of the work of the commission to do so”. Notably, a commission can rely on hearsay evidence such as media reports.

Most importantly, commissions do not make decisions — they merely give advice, which the president may accept or ignore. In contrast, courts make orders that must be obeyed.

Finally, if someone is aggrieved by a commission’s report, that person’s ability to challenge it in court is limited. A commission’s report cannot be appealed as a judgment can.

However, someone may challenge a commission’s report in court through a review application, as Mantashe did. Unlike appeals, which ask a higher court to reconsider the merits of a lower court’s decision, reviews are about how a finding was made (for example, if there was bias on the part of the decision-maker).

But when it comes to commission reports, review grounds are limited. Because the recommendations of a commission are not binding, our courts have not considered them to be “administrative action” reviewable under the Promotion of Administrative Justice Act, which deals with decisions and actions taken by government officials.

It was at one time an open question whether commission reports were reviewable at all. But then the Seriti commission’s report into the arms deal was taken to court. The Pretoria high court in 2020 decided that the findings of commissions could be reviewed on the limited bases of legality and rationality. However, the judgment warned that “courts must be cautious before exercising a power of review over the proceedings of a commission”.

“To exercise a review power in an overzealous fashion would be to subvert the flexible nature of a commission’s choice of procedure and constrain many decisions that a commission must make along the way to its ultimate findings,” the judgement said.

We saw, during the Zondo commission, accusations of unfairness, bias and irregularities concerning the proceedings arise. The report has been challenged in court. Commissions are not free-for-alls, and they may be both challenged and censured. But criticising the work of commissions by comparing them with court proceedings should be avoided, as doing so undermines both commissions and courts.