BACKGROUND AND SUMMARY
In casu, the court considered whether it had the power to review the findings of a judicial commission of inquiry. In the absence of any reported judgment of a South African court, the court examined comparative material.
In 1997, a procurement process commenced to implement the Strategic Defence Procurement Package (“SDPP”). Through the SDPP, the South African Government acquired a number of weapons systems. From inception, the SDPP was engulfed in controversial allegations, relating to the corruption and criminal conduct pertaining to the procurement process undertaken to acquire the weapons. These allegations led to requests from various parties, to establish a Commission of Inquiry to determine the accuracy of the allegations (“the Commission”).
The Commission was duly established on 23 December 2015, wherein the Commission delivered its final report. The finding concluded that despite allegations of criminal conduct, no evidence was found or presented to the Commission which substantiated the allegations.
The Applicants then approached the court to review and set aside the findings of the Commission, wherein it was argued that the Commission failed to carry out its Constitutional and statutory functions, in that, it failed to properly investigate the allegations of fraud, corruption and the irregularities within the SDPP. It was for these reasons that the Applicants contended that the Commission failed to fulfil the requirements of legality, and rationality, as required by the administrative law.
The court was thus required to determine whether it had the power to review the findings of a judicial commission of inquiry. In the absence of any reported judgment by a South African court, the court examined significant comparative material, including that of New Zealand and Canada. According to the case of Peters v Davison, authority emanating from New Zealand, the courts held that “a report of a commission of inquiry could be reviewed if it had exceeded its terms of reference, had breached the principles of natural justice, or was vitiated by error of law.” On this basis, the Court in Peters v Davison went on to hold that a report of a commission could be reviewed on two grounds, that is, if it had exceeded its terms of reference and that it had breached the principles of natural justice.
According to Canadian authority however, the courts distinguished between Commissions of Inquiry dealing with policy matters, and those where the investigation could lead to a criminal prosecution.
Further to the above, a Commission of Inquiry’s findings could be challenged on the basis that “it acted beyond its terms of reference, breached principles of procedural fairness or was perceived to be biased against certain witnesses.” These principles were equally applicable in South Africa because the rule of law required that the exercise of public power should not be arbitrary.
According to Davis JP, Leeuw JP and Mlambo JP, the court found that the Commission had failed to inquire fully into the issues which it was required to investigate. The witnesses before the Commission, “were not approached critically and their versions were not tested rigorously.”
The court held that there is a necessity to exercise caution in administering their powers to review the proceedings of a commission of inquiry. In this case, the uncontested evidence revealed an obvious set of errors of law.
The refusal by the Commission to take account of documentary evidence, containing the most serious allegations that were relevant to its inquiry, meant that the principle of legality dictated that the findings of the Commission had to be set aside.
This case considered whether a court holds the requisite powers to review the findings of a judicial Commission of Inquiry.
Written by Ashleigh Butler Checked by Shaun Piveteau