LUCKY MATHEBULA | Diversion of dockets is the antidote Mkhwanazi ordered

The judicial authority of South Africa is vested in the courts. The judiciary is not only a separate authority but also an independent one in nature. It is accountable to the constitution and the laws that derive from it. It facilitates the resolution of disputes within a rule-of-law framework.

The adjudication of cases, civil or otherwise, after the National Prosecution Authority (NPA) has decided to prosecute, resides solely within the domain of the judiciary. Neither the constitution nor any other law authorises the executive or administration to determine the adjudication of any cases.

As the constitution outlines, the basis of the separation of powers is to regulate the risks of establishing a prerogative state that acts outside the normative dictates of law. For this reason, one of the foundational principles in establishing South Africa is the rule of law and the supremacy of the constitution. 

The law further gives the president the power to establish commissions of inquiry. While having powers similar to those of the high court, these commissions are not a court as envisaged in the constitution, wherein they vest the judicial authority of South Africa in the courts. Commissions established by the president are an executive authority act and thus vulnerable to the extent to which the president is willing to act on their recommendations.

Unlike court judgments, which are sources of law, recommendations of commissions have a runway to the extent that the president allows. This means that the president, as the head of the executive branch, has the power to act on the commissions’ recommendations, but is not bound by them.

A case docket is a collection of information related to a specific legal case, often a criminal case, filed by police and other legal entities. It contains crucial details such as witness statements, evidence, police reports and investigation progress, serving as a comprehensive record of the case from its beginning through its journey into the justice system. The information in the case docket can lead to the issuing of arrest warrants, thus indicating that the matter has now entered the judicial authority domain.

Access or denial of justice begins with how a case docket is compiled for trial. It is the criminal justice value chain’s investigation, prosecution and adjudication driver. Once designated as a docket, it has an investigation officer who curates its contents through the criminal justice system until any competent court concludes adjudication.

Ordinarily there is therefore no basis, including by a proclamation of a commission of inquiry, to interfere with or divert an investigation destined for the attention of the prosecution authority. However, if the matter of public concern, as envisaged in the Commissions Act, is the criminal justice value chain, the logic of diverting a docket within which the public concern is registered is, by the standards of the act, legitimate and legal.

The decision by the police minister and and the commissioner of police to divert the dockets of the task team on political killings to the Madlanga commission is legal and legitimate

The act defines "public concern" as any issue that affects the public at large or has significant implications for the functioning of the criminal justice system. Notwithstanding the potential risks of diverting dockets being construed within the narrative of executive overreach, it is the test of public concern which will determine the normative character of decisions taken thereto. To act otherwise would undermine the purpose for which a commission of inquiry was established.

In his rant about interference in the work of the political killings task team, Lt-Gen Nhlanhla Mkhwanazi, the provincial commissioner of KwaZulu-Natal, cites the executive, judicial, police administration and prosecution authorities as having colluded to thwart the task team’s functioning. This makes any docket related to his well-articulated public concern — which the president has now curated its handling into a commission — more at risk if it is processed anywhere within the criminal justice value chain without a differently nuanced oversight mechanism. 

The decision by the police minister and and the commissioner of police to divert the dockets of the task team on political killings to the Madlanga commission is therefore legal and legitimate. The president, acting through the executive authority he exercises with the police minister and commissioner, has established a normative process to unravel and foreground malfeasance, if any, to address the crime syndicate public concern. 

The truth is that all adjudications depend on case law for their resolution. Case law is necessary to establish various rights and to set out the rules governing the delicate rule-of-law process.

So relax, South Africa. We are running a constitutional democracy, not a kangaroo court. If there is any risk in the unfolding process, it would be the time it might take to conclude the inquiry and the political will of the head of state to act in the interest of the democratic order.

• Dr FM Lucky Mathebula is the head of faculty, People Management, and founder of The Thinc Foundation, a think-tank based at the Da Vinci Institute

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