The appointment of a judicial commission of inquiry into the so-called arms deal is to be welcomed for two reasons. Firstly, a judicial inquiry is welcomed because the judges who will head the commission of enquiry not only have irreproachable integrity but also possess the requisite skills and expertise to conduct such an enquiry. Secondly, it is to be welcomed as a positive step towards fighting the scourge of corruption and unlawful conduct so rampant in state Institutions. It is, however unfortunate that the terms of reference of the Commission have not yet been defined.
The subject-matter of the commission raises the question of whether the President should have chosen to nominate sitting judges, as opposed to retired judges. The reason for not having sitting judges, particularly in such a politically loaded inquiry, is that the performance of what is essentially an executive function by members of the judiciary may be seen to blur the distinction between the Legislature and the Executive, on the one hand, and the courts, on the other. As such, it might infringe the doctrine of separation of powers which is demanded by the Constitution.
Our Constitution imposes a positive obligation on the State to ensure the separation of power between the three spheres of government. This separation is necessary if the courts are to be able to act as independent arbiters of issues involving the legality of executive and legislative conduct, for unless our courts are both perceived to be, and are independent, they will not be able to discharge this duty.
This does not mean that judicial officers can never be required to perform non-judicial functions. Our courts have found that in appropriate circumstances, judicial officers can preside over commissions of inquiry without compromising the separation of powers. Much will depend on the subject-matter and the terms of appointment and powers.
In SA Association of Personal Injury Lawyers v Heath and Others which involved the appointment of a sitting judge as head of the Special Investigative Unit, the Court found that the functions that the executive had ascribed to Judge Heath where ‘functions close to the ‘heartland’ of executive power.’ As such, they should not be performed by a sitting judicial officer.
Given the political nature of the arms deal, it would thus have been preferable to have had retired judges acting as Commissioners. They would have had the requisite integrity and skills and would not have been seen to impinge on the independence of the judiciary.
However, the present appointments do not necessarily compromise the separation of powers. They differ from the Heath case in three important aspects. Firstly, the appointments are for a definite fixed term of two years, after which the judges will be able to resume their judicial duties. Secondly, the Commission will not have to act as both investigator and litigator on behalf of the State to recover losses suffered as a result of corrupt practices, as was required of the Head of the Special Investigating Unit. Thirdly, the function that the Commission is required to perform will not be subject to Executive control as was the case with the SIU, where the President determined the functions that were to be performed and formulated and amended matters that were to be investigated.
The composition of the Commission is not the only important aspect. If the President’s appointment is to be taken seriously, the terms of reference that he determines for the Commission are critical. If it is to make meaningful input and if its findings are to be credible, it is essential that the Commission be given a panoply of powers to investigate, subpoena individuals, cross-examine and finally to recommend criminal prosecutions of those found guilty of corrupt or unlawful behaviour and to order that tainted contracts be resiled. Only then, will the nation be able to put the arms-deal ghost to rest.
N de Havilland
FW De Klerk Foundation
