Why the “State Capture” Commission Is Wrong on Montana’s Evidence.

Why the “State Capture” Commission Is Wrong on Montana’s Evidence.

            By: Paul M. Ngobeni

 

Almost universally, it is accepted that all Commissions of Inquiry are investigative bodies (or typically tools of the executive branch) whose power to report is capable of damaging or prejudicing the rights, interests or legitimate expectations of many citizens. Commissions are often called upon to deal with red-hot political issues such as fraud and illegality of government officials, business and individuals. Viewed against this background the serious allegations and complaints by former Prasa CEO Lucky Montana that the Zondo Commission, which is probing allegations of state capture, has attempted to sideline and silence certain witnesses deserve full attention and ventilation in a court of law if need be. 

 

Montana claims that the Commission has opted for falsehood to derail his much –awaited testimony.  Of particular legal relevance are the allegations that the evidence leaders have played a role in this well-orchestrated mendacity and have advanced frivolous and insubstantial grounds for cancelling his scheduled testimony. Most important, what must concern us are the legal principles that may inform future challenges to the legitimacy of the Commission and which may, as predicted earlier, be the reason for the collapse of the Zondo Commission.  In brief, Montana claims the Commission is “biased, pursuing a predetermined agenda, and targeting particular individuals.” See, https://www.news24.com/news24/southafrica/news/former-prasa-ceo-lucky-montana-accuses-zondo-commission-of-pursuing-predetermined-agenda-20210104 .  Substantively, Montana “alleged the secretariat told him his annexures were either not marked or numbered or incomplete, but he vehemently disputed that. According to him, that reason was a mere smokescreen and he has since filed a challenge against the decision.” https://www.iol.co.za/news/politics/former-prasa-ceo-lucky-montana-accuses-zondo-commission-of-lying-to-derail-his-testimony--8a0ba7d4-2edc-4232-bd5b-4ce6ca84cf3b .  That lame excuse by the secretariat and evidence leaders is disgraceful – they are supposed to assist the witnesses and not use hyper-technical excuses to disqualify witnesses. Further, Montana “angrily said the commission did not allow him to correct what it deemed incorrect but chose instead, arbitrarily, to cancel hearing his evidence. Montana said the commission elevated a technical point over the more important issue of unearthing evidence that could help it “to find the truth.” Id.  Montana concludes by stating:

 

“The letter from the commission is based on falsehoods by the Commission’s legal team and it is non-committal on my possible appearance any time soon or before the Commission completes its work.

The decision is aimed at blocking these annexures from being admitted as evidence by the commission because these are damning on the commission itself, its preferred witnesses, and ultimately, the entire narrative that we stole or mismanaged public funds as part of the so-called State Capture.” Id.

 

In a lay person’s language Montana has successfully established a solid basis for reviewing and setting aside any Zondo Commission report making reference to him. Regardless of the ultimate weight that may be accorded his evidence of political bias and shenanigans Montana is certainly fully justified in complaining about the cancelation of his scheduled testimony at this juncture.   A potential witness who has an interest in the truth-finding mission of the Commission may not sit idly by like a potted plant when his rights are being violated. 

 

Normally, when action is taken and comments are made which are  likely to convey an impression of bias to a fair-minded lay observer, a party is not entitled to stand by until the contents of the final judgment are known, and then, if the contents are unpalatable, to attack the judgment on the ground that there has been a failure to observe the requirement of an appearance of impartial judgment. Vakauta v Kelly (1989) 167 CLR 568, 572 (Brennan, Deane and Gaudron JJ). A party which is aware of the circumstances entitling them to object on the ground of apprehended bias and which fails to do so, waives the right to object at a later time. Smits v Roach (2006) 227 CLR 423, 439 [43].  Both the timing and the nature of any objection made are relevant to the question of whether a party has waived a right to object on the ground of apprehended bias.  These well-known principles are indeed part of our jurisprudence.

 

It is an established legal principle that a witness may boycott, stay away from and/or walk out of a Commission of Inquiry if he believes it is biased or operating unlawfully. See, the case of  S v Mulder  (1980 1 SA 113 (T) 121F-121G) where a  comparable situation arose under the Commissions Act 8 of 1947 in the so-called Erasmus Inquiry conducted in the late 1970s. Johann Kriegler SC, (who later became a Constitutional Court judge)  advised Mulder who declined to testify. He was charged with contempt for declining to testify in terms of the Commissions Act. The Transvaal Supreme Court quashed the conviction of Mulder on the ground that the mandate of the Commission was so widely and vaguely defined that he was legally justified in declining to testify.  In effect, the summons to testify was held to have been invalid in the light of the mandate given to the Commission.  See, also S v Botha 1999(2) SACR 261(C) where former apartheid president P.W. Botha was acquitted after he defied a TRC subpoena later declared unlawful. 

 

That Montana has chosen to stay and insist on his testimony being heard is indeed testament to his good faith and unwavering desire to assist the truth-finding function of the Zondo Commission. It is ironic that, instead of a boycott, Montana chooses to stay and offer voluminous documentary evidence for which the Zondo Commission inexplicably appears to have lost appetite. By treating willing and cooperating witnesses in such a niggardly fashion the Zondo Commission has lost the moral high ground and appears to embolden those who have already written it off as a political charade or a sham.  One can only hope that before it is too late, DCJ Zondo will heed the admonition of the Supreme Court of Appeal which stated as follows:

 

“It is in those cases – where the subject is sought to be coerced by a public authority into compliance with an unlawful administrative act – that the subject may be entitled to ignore the unlawful act with impunity and justify his conduct by raising what has come to be known as a ‘defensive’ or a ‘collateral’ challenge to the validity of the administrative act”. Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 6 SA 222 (SCA) para. 35 (emphasis added).

 

It would indeed be tragic if artificial obstacles were erected against knowledgeable witnesses like Montana and Koko who are available and willing to testify while the Commission touts the testimony from witnesses not bound up in facts, and in the gossamer strands of speculation and surmise.  The nonsensical testimony of Barbara Hogan which was devoid of any facts cannot match the fact-based evidence of Montana and Koko by any stretch of the imagination.

 

One must, with respect, remind the Zondo Commission that the issues of bias and evidence manipulation raised by Montana can make or break a Commission of Inquiry.  These allegations ineluctably point to conduct by a Commissioner which has been held to give rise to an apprehension of bias in other cases.  In Keating v Morris & Ors; Leck v Morris & Ors [2005] QSC 243 paras 90-91 it was held that “a pervasive disdain for, or contempt towards witnesses, (“bureaucrats”, and doctors who administer but do not treat patients), manifested by the Commissioner was sufficient to establish bias.  The Commissioner’s interventions “did not come across as seeking information or inviting discussion but as aggressive assertions, contemptuous or dismissive” comments on certain witnesses.  

 

Another issue of apprehended bias dealt with in Keating v. Morris was the Commissioner’s differential treatment of witnesses. It was submitted for the applicants that the Commissioner’s favorable treatment of certain witnesses, was in stark contrast to his treatment of the applicants and supported a conclusion of apprehended bias.  The Court observed:  “[99]The first three witnesses called were Hoffman, Messenger and Miach, who gave evidence which, if accepted, was fraught with potential adverse consequences for the applicants and likely to be challenged by them. The Commissioner’s effusive endorsement of their untested evidence early in the proceedings is of particular concern.”  This favourable treatment of some witnesses, contrasted with hostility and disparagement towards others (e.g. referring to a witness as a ‘hero’ or profuse commendation of a witness) led the Court to conclude as follows:

107] The treatment of such witnesses can be justifiably said to be in stark contrast with the treatment of the applicants and seen as having an inference that they were more favoured by the Commissioner. It is not a question of the court considering whether the commendations were deserved, the question is whether they go to, as I find they do, supporting a conclusion of apprehended bias.

 

[108] From a more general perspective, as I have already said, witnesses who were not bureaucrats or non-treating doctors were apparently viewed more favourably by the Commissioner than witnesses who were. Some witnesses who gave evidence potentially adverse to the applicants were in the first category; the applicants are in the second.

 

Other issues indicative of bias noted in the same case were:  the Commissioner • entering the fray and cross-examining witnesses; interrupting counsel for a witness in a way which is designed to deter cross-examination of a particular witness; sarcastic and flippant remarks; participation in tactical decisions regarding evidence; and failing to investigate or refer for police investigation leaking of material to the media. In Keating v Morris the Court noted that: “115] The intervention was unjustified and was, at best, intemperate. Its implications were expressed so as not to be restricted to the immediate situation ... [116]The Commissioner’s demeanour was hostile. The intervention was expressed to deter cross examination of Miach. Its terms imposed an unacceptable constraint on -cross-examination of such a witness.”

 

These factors are present in Zondo’s discriminatory treatment of certain witnesses to date and are fertile ground for an eventual review application.  For now what is crucial is to determine whether Montana’s allegation that the Commission is “biased, pursuing a predetermined agenda, and targeting particular individuals” matters in the great scheme of things.  Does it matter that the Commission’s legal team lied to him and rejected his documentary evidence on flimsy and pretextual grounds?  This requires first an examination of the legal status of the evidence leaders and what impact if any their misconduct or bias might infect the entire Commission.

 

Advocate Vuyani Ngalwana SC has penned an excellent article, “COMMISSIONS OF INQUIRY: A Positive or Negative Intervention?” http://www.anchoredinlaw.net/wp-content/uploads/2019/02/Commissions-of-Inquiry-1.pdf  where he explains the role of evidence leaders as follows:

            

            Evidence Leaders

Evidence Leaders are not the Commission of Inquiry. They are appointees of the Commission of Inquiry. The Commissions Act in South Africa makes no provision for the appointment of evidence leaders. So, there is no requirement in the controlling legislation that an evidence leader must be appointed to a Commission of Inquiry.

Regulations of the “State Capture” Commission confer upon Deputy Chief Justice Zondo, the Chairman, the discretion to “designate one or more knowledgeable or experienced persons to assist the Commission in the performance of its functions, in a capacity other than that of a member [of the Commission]”. These are the evidence leaders, the investigators and any other persons whose skill the Chairman may require.

Facts given in evidence at a Commission of Inquiry should ideally already have been verified by evidence leaders (where appointed) in order to avoid evidence that may be tailored for purposes other than the search for the truth…

A search for the truth does not entail an attack by evidence leaders on witnesses. In fact, such attack tends to have the opposite effect to attaining the truth. Having managed to get a horse to the river for a drink, try forcing it to drink and see how far you get. Nowhere. An aggressive and hostile questioning of a witness by an evidence leader is counter- productive.

Thus, all witnesses must be treated equitably and fairly. It is not the role of evidence leaders to “lead” some witnesses in evidence, asking them rehearsed sweetheart questions, and “cross-examine” other witnesses. In fact there is, strictly speaking, no room in Commissions of Inquiry for “cross-examination” because that is language that is associated with a trial or other formal court process.

Witnesses in a Commission of Inquiry are questioned, not cross-examined. Cross- examination is a special form of questioning that is governed by its own rules, conventions and ethical standards. It is best performed by professionals trained in the science or art of trial advocacy. Witnesses at Commissions of Inquiry should not have to be put to the expense of hiring experienced advocates to have the evidence of those who implicate them tested. If evidence leaders do their job properly, this should not be necessary.

Because the ultimate aim of Commissions of Inquiry is a search for the truth, witnesses often meet with evidence leaders privately, before giving evidence in the open, so that evidence leaders can assess the evidence, test it against facts and other evidence already in their possession, and have it reduced to writing. There should be no room for surprises, whether on the part of evidence leaders or on the part of witnesses.

 

It is thus unhelpful to the cause of a Commission of Inquiry for evidence leaders to behave like a prosecuting team in a criminal trial. Evidence leaders have no witnesses of their own. They should thus have no “version” to put to witnesses for “cross examination” purposes.

Evidence leaders should also be particularly careful of treating media reports and opinion pieces as evidence. They are not. They are simply information to be assessed and tested against other available information. They do not constitute “a version” to be put to witnesses. This should not be difficult to understand because a version can only be tested by questioning the witness advancing such version. (emphasis added).

 

In other countries such as Australia, Commission’s evidence leaders are referred to as “Counsel Assisting” and their role is to assist the Commissioner carry out their duties and functions in accordance with the terms of reference (Letters Patent). A paramount consideration for the existence of the appointment of counsel assisting is so that the Commissioner does not have to “descend into the arena”. It is critical that Counsel Assisting at an inquiry, like a prosecutor in a criminal matter, be impartial and importantly appear to be impartial. As was concisely outlined in Keating v Morris [2005] QSC 243 relating to a Special Commission of Inquiry into Bundaberg Base Hospital:

“[35] The court is concerned with the fairness of the treatment of applicants. The governing consideration is that justice is, and is seen to be, done with the decision maker reasonably open to persuasion.

[36] It is of “fundamental importance that parties and the general public have full confidence in the fairness of decisions and the impartiality of decision makers to whom the rules of procedural fairness apply. Condemnation without a proper hearing or by an apparently biased tribunal is unacceptable; exoneration by such a tribunal may be worthless.”

 

Viewed with this prism the role of evidence leaders assisting the Zondo Commission is not to appear as advocate arguing for a particular result. The Commissioner is enjoined to conduct an open and "independent" inquiry and it follows that evidence leaders must, like the Commissioner, therefore at all times remain independent and impartial. Axiomatically, if the conduct of the evidence leaders appeared to be partial if the Commissioner appeared to condone that conduct, then the hypothetical observer might reasonably apprehend partiality on the part of the Commissioner.  It follows that DCJ Zondo may not idly stand by when his evidence leaders are engaged to the shenanigans alleged by Montana.

 

In Firman v Lasry (2000) VSC 240  it was stated that whilst the rules of evidence are not required to be observed nonetheless it does not automatically mean that it is desirable that they be ignored. The Court stated: “It is to be remembered that rules of evidence have developed not to make the resolution of factual controversies more difficult or less likely, but rather to promote the quality of the evidence upon which such findings are made by the objectives of fairness in ascertaining the truth through accurate fact finding.”

The evidence leaders and the Commission secretariat appear to have turned these principles upside down – invent hyper-technical rules to exclude certain evidence because it does not fit into the narrative the Commission is desirous of pursuing. 

 

DCJ Zondo would be well-advised to scrutinize the conduct of his evidence leaders and to heed the following observations from the court in Firman v Lasry [2000] VSC 240 where it was stated:

“The role of such counsel has been said to be to assist in the elucidation of facts, to present material to the Commission in an orderly fashion, to examine witnesses independently without the Commissioner having to descend into the arena....if the conduct of counsel assisting showed an evident and persisting inequality of treatment as between witnesses espousing one view of matters under inquiry and witnesses espousing an opposing view, if one group of witnesses was apparently aided in giving its account of events whilst the other group was apparently frustrated in its attempts, and if a Commissioner either gave support to or took no action to redress the situation which unfolded before him, it would not be wrong to consider that support or inaction if an allegation of apprehended bias on the Commissioner’s part was raised by an individual whose conduct was under scrutiny. Whether a conclusion adverse to a Commissioner might then be drawn must depend upon the particular circumstances.”

 

In another case, Re Doogan; Ex parte Lucas-Smith (2005) 193 FLR 239 it was stated:   “Whilst the duties of Crown prosecutors and counsel assisting coroners are by no means the same, we accept that both should be guided by the overriding principles that their goal is the attainment of justice rather than the achievement of a preconceived objective.”  During both public and private hearings evidence leaders can illustrate a disdain or contempt towards certain witnesses during examination –where sarcastic, aggressive or flippant comments are made which in turn may give rise to an apprehension of bias.  In contrast evidence leaders may also play to the public gallery and display undue favorable treatment towards a witness.   When that happens the buck stops with the Commissioner who has a non-delegable duty to firmly and decisively stamp out such malfeasance.

 

As a matter of principle Montana is correct that the approach and submissions of the Commission secretariat and evidence leaders should be different in kind from those presented by parties in an adversarial proceeding, in the sense that they should not seek to advance particular cause or case but instead seek to fairly and objectively analyze the material that has been produced before the Commission and assist in the search for the truth. He is correct that the evidence leaders must adopt an impartial and objective approach, rather than the partisan approach of attempting to uphold the factional agenda or advance the Ramaphosa faction’s  position. These principles are apposite to the Zondo Commission and it is incumbent upon Zondo to timeously and firmly intervene or disassociate himself from the approach that had been taken by the evidence leaders. It is insufficient for Zondo to adopt a “see nothing and hear nothing” approach.

 

            What Is To Be Done?

Montana must immediately write a formal complaint to DCJ Zondo detailing the conduct of the evidence leaders in its entirety.  He must insist that the evidentiary material rejected by the Secretariat be made part of the record and let it be known that he intends to review and set aside the Commission’s decision in regard to the evidence rejected.  Should Zondo fail to rectify the situation or acquiesce in the said conduct, a solid basis for a successful review application would be laid.  During the review process Montana can also attempt to interdict Zondo from releasing any report that adversely reflect on Montana’s name given the flagrant refusal to afford him a full and fair opportunity to deal with the issues and to present his evidence.  Evidence leaders are supposed to stream-line presentation of evidence and to assist witnesses instead of erecting hyper-technical barriers designed to frustrate testimony by certain witnesses they dislike. Discriminatory treatment of witnesses based on their view-point is absolutely unacceptable.