Seeking the recusal of the chair of a commission of inquiry is uncharted legal territory in SA; it has never happened before.
This week former president Jacob Zuma's attorney, Eric Mabuza, wrote to deputy chief justice Raymond Zondo to say Zuma intended to apply for his recusal from the state capture inquiry.
The letter did not set out in detail why Zuma believes Zondo cannot be impartial towards him, but said "the president and the chairperson have historical personal, family and professional relations that ought to have been publicly disclosed by the chairperson before accepting his appointment".
Mabuza's letter listed six complaints related to Zondo's conduct in the commission, including the way he engaged with witnesses. This indicated he "has already prejudged the very issues he is tasked to investigate", said Mabuza.
The "reasonable apprehension of bias" test was first set out in the 1999 South African Rugby Football Union judgment of the Constitutional Court, in which rugby administrator Louis Luyt was sent packing when he tried to get five of the court's justices recused in his legal battle with president Nelson Mandela over the commission of inquiry into the administration of rugby.
The Sarfu judgment led to a well-developed set of principles for when judges should recuse themselves from court.
But the state capture commission is not a court. In the final report of his commission of inquiry into issues at the South African Revenue Service, retired judge Robert Nugent said misconceptions about commissions of inquiry arose because they were likened to courts of law. "A commission is not an adjudicative body ... its process is proactively inquisitorial, [it] seeks out information for itself, unlike a court ... that is reactive to material others place before it," said Nugent.
Another big difference is that a commission makes no binding findings or orders - it makes recommendations to the president, who can ignore them.
Because they are investigative, commissions often need to descend into the arena (a no-no for judges and often a red flag for bias) and get their hands dirty. The kind of independence and impartiality expected from a commission must, then, be different. And with no power to make a decision that is binding on anyone, the need for strict impartiality may arguably be less.
It is not even a requirement that commissions are chaired by judges. They are sometimes chaired by advocates or academics, like the Nhlapo commission on traditional leadership, for example. Judges are often chosen, though, because they are trusted by the public and because of their legal knowledge and forensic skill.
Still, there must be some level of impartiality for commissioners - our courts have said so. When the legality of the state capture commission was challenged, the Pretoria high court said: "To achieve the goals of truth-finding and restoring confidence, it is necessary that those who head the commission be perceived as independent."
The difference between courts and commissions was considered by a full bench of the Pretoria high court when Corruption Watch asked it to set aside the report of the Seriti inquiry into the arms deal.
The judgment was not about bias, but the court had to consider whether it could review and set aside a commission of inquiry's findings at all, given that they "are simply findings of fact or statements of opinion ... and that no legal consequences can be attached to [them]".
The court looked at the question in terms of rationality, asking whether the approach taken by judge Willie Seriti had fulfilled the purpose of his inquiry. It decided that even though a commission was quite different to a court, there was still a requirement that the investigation be conducted with an open and inquiring mind. The judgment quoted a supreme court ruling by Nugent, about the public protector, that "an investigation that is not conducted with an open and inquiring mind is no investigation at all".
The Pretoria high court found Seriti had not conducted his commission with the required open and inquiring mind. It set aside his report. On this basis, Zuma's team would have to show bias to such an extent that Zondo would be unable to approach his work with an open and inquiring mind.
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