A judicial commission of inquiry into alleged links between police minister Senzo Mchunu, senior police officers and organised criminal syndicates may have been one of the few options available to President Cyril Ramaphosa, but it remains a controversial one.
Aside from the lengthy duration typically associated with judicial commissions, the inquiry is likely to be held largely out of the public eye, with limited opportunity for scrutiny.
The commission will be chaired by Constitutional Court justice Mbuyiseli Madlanga. According to Lawson Naidoo, director of the Council for the Advancement of the South African Constitution, Madlanga has set a high bar for himself in his jurisprudence.
Should Madlanga approach the inquiry with the same rigour, speed and decisiveness that characterised the South African Revenue Service (Sars) inquiry chaired by judge Robert Nugent in 2018, he may silence critics of the process assigned to him by Ramaphosa on Sunday.
The inquiry is tasked with examining whether the criminal justice system — including the police, state security, the National Prosecuting Authority and sections of the judiciary — has been infiltrated by criminal cartels.
Ramaphosa’s new commission is set to examine “the role of current or former senior officials in certain institutions who may have aided or abetted the alleged criminal activity; failed to act on credible intelligence or internal warnings; or benefited financially or politically from a syndicate’s operations”.
It has also been tasked with probing the “facilitation of organised crime; suppression or manipulation of investigations; inducement into criminal actions by law enforcement leadership; commission of any other criminal offences; and intimidation, victimisation or targeted removal of whistleblowers or officials resisting criminal influence”.
It’s a broad mandate — broad enough to ensure a long process. But it may well reach the same conclusion as academics and scholars who have studied the criminal justice system for more than two decades — that the police force is top-heavy, overly centralised and opaque, and that it needs to be depoliticised, decentralised and professionalised from headquarters down to police stations.
Complicating matters is that the inquiry must be handled sensitively, given the national security dimension of its mandate — which could mean much of its work will be done behind closed doors, says Naidoo. “I would imagine you cannot discuss in the public domain some of the issues, such as the contents of dockets, if a matter will be going to court.” This makes it all the more incumbent on the commission to ensure its own credibility.
It’s a tall order for Madlanga, and there are hard questions he will face as he begins his work in the coming weeks. Chief among them is how to ensure that justice is done and seen to be done, quickly.
However, there is a precedent of an inquiry that was genuinely inquisitorial, conducted quickly and openly, and that made recommendations as it proceeded. This led to action being taken relatively quickly against officials implicated in wrongdoing.
Nugent’s commission was tasked with investigating the dramatic fall in revenue collection by Sars in 2018, amid discredited reports of a “rogue unit” operating at the tax agency and allegations that Sars commissioner Tom Moyane was behind the culling of senior, experienced staff, resulting in the erosion of organisational capacity.
A tax inquiry might conjure images of a snooze fest; the Nugent inquiry was anything but
Nugent was assisted by advocates Michael Katz, Vuyo Kahla and Mabongi Masilo. He also appointed a crack team of evidence leaders in advocates Lunga Siyo, Carol Steinberg and Frances Hobden.
A tax inquiry might conjure images of a snooze fest; the Nugent inquiry was anything but. It was an unforgettable example of how a judicial investigation should be run.
In Nugent’s words, explaining his process in the final report: “To inquire, in ordinary language, is to ‘search into, seek knowledge concerning, investigate, examine’. 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.”
This was clearly the thread running through his inquiry, for those of us who sat through its hearings in 2018. The team wanted answers, and they actively pursued them, quickly and effectively.
The Nugent inquiry was constituted in May 2018, and by December that year had already tabled its final report — a lightning-fast turnaround by South African judicial inquiry standards. In October, after many delays and setbacks in the parallel disciplinary process run by the presidency against Moyane, the architect of Sars’s destruction along with international consultancy Bain, Nugent recommended that Moyane be dismissed “immediately”.
This was after damning admissions from Bain’s former South African head, Vittorio Massone, that he had “advised” Moyane on Sars affairs, even before his announcement as Sars commissioner — and long before a tender for the redesign of the organisation was advertised, which in the end was irregularly won by Bain.
Bain eventually paid back the R217m it earned from the contract. The Nugent inquiry itself cost only R8.8m, compared with the Seriti commission on the 1990s arms deal, which sat for five years, carried an R80m price tag, and came to nought.
In the end, however, an inquiry is only as good as the extent to which its recommendations are acted upon. Other authoritative recommendations are lying idle to this day, thanks to the Ramaphosa government’s sluggish reaction record.
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