DAVID LEWIS: Too early to jump to conclusions about Madlanga commission

I’ve been riveted by the televised hearings of the Madlanga commission. However, I’ve learnt from my adjudicative experience on the Competition Tribunal that one should not jump to conclusions too quickly — these are early days in the life of the commission. But there are two bees in my bonnet that have been activated by the first few days.

The first concerns the role of commissions of inquiry. The commission’s evidence leaders have no clients, no-one they are charged with prosecuting or defending. And for their part, the commissioners are not there to find guilt or otherwise. 

The role of the commission, evidence leaders and commissioners is to undertake an inquiry to find the truth. Whether the truths elicited are probative is for the criminal justice authorities to determine.

The role of the commissioners in a judicial commission differs from that of a judge in criminal court proceedings. The commission is not there to hear two adversaries — prosecutor and defence counsel — battle it out and then decide the winner. Rather, the commissioners actively intervene in interrogating witnesses in their truth-seeking quest. 

Assisted by the commission’s prima facie findings, the police will decide whether further investigation is warranted. And if they submit a matter to the National Prosecuting Authority (NPA), the latter will determine, on the basis of the quality of the evidence produced by the investigators, whether to launch a prosecution. In matters involving serious corruption, the body responsible for both investigation and prosecution is the Investigating Directorate Against Corruption, a unit within the NPA.

   This point has been much misunderstood by critics of the official responses to the Zondo state capture commission, which made several prima facie findings of criminality and recommended further investigation. This is a far cry from a finding of guilt, which is the exclusive domain of a criminal court on a standard of proof — beyond reasonable doubt — that is far higher than that to which a commission adheres. 

In short, the role of a commission of inquiry is, as the name implies, “inquisitorial”, while the processes governing a court of law are “adversarial”. The daily bread of SA legal practitioners — judges and lawyers — is earned in adversarial proceedings, and the switch from adversarial to inquisitorial proceedings is not easy to make. But it is essential if the commission is to uncover the truths underlying the deep, ubiquitous, corrosive divisions within the SA Police Service (SAPS).

KwaZulu-Natal police commissioner Lt-Gen Nhlanhla Mkhwanazi should return to the Madlanga commission’s witness box. He was given a patently easy ride by his evidence leader, who treated him as if he were her client rather than a witness to be interrogated in an inquisitorial process. He should be asked to account again for the theatricality of his media conference. His account of why he appeared in combat gear surrounded by heavily armed police officers is not persuasive.

However much his gung ho, warrior-like stance may appeal to a crime-weary public, it is not appropriate to deliver a message of this import in such dramatic fashion, especially on a weekend when the president was out of the country for three or four days. It would also be interesting to examine the kill-rate of the political killings task team. A deeply divided police service and polarised political establishment demands cool heads from the police leadership, not Dirty Harry.

The second bee buzzing around in my bonnet concerns an issue usually discussed in debates surrounding corporate governance — the boundaries that define the respective roles of a corporation’s governance structures: shareholder, board and executives. I have repeatedly preached the necessity for each of these structures to stay in their lanes. The shareholder is responsible for appointing and mandating the board; the board converts the mandate into a strategy; and the executive implements the strategy.   

We know this lesson from corporate governance 101 is rarely heeded in state-owned enterprises (SOEs), where ministers either fail to exercise effective oversight or interfere at will in matters that attract their interest. These inappropriate interventions may be driven by a particular minister’s lack of confidence in the boards or executives of the SOE in question, or by more sinister corruption-related motives. 

However, drawing a bright line between mandate, strategy and execution is sometimes easier said than done, and when an institution is in crisis the lines are especially likely to be blurred. The top governance structures are indeed duty bound to intervene in the structures below them to resolve the crisis.   

I cannot think of an institution more appropriately judged to be “in crisis” than the SAPS. And although it is certainly not an SOE, it has a political principal whose responsibilities are identical to that of an SOE’s “shareholder minister”. It has an executing agency in the form of the SAPS, led by the commissioner. However, it has no board.

The recently released report of the National Anti-Corruption Advisory Council (of which I was a member) proposed that a national police board be appointed, comprising a small number of members, all of whom should have clearly established experience in criminal justice leadership. (They need not, indeed should not, all be South Africans). It would be responsible for advising on mechanisms to promote ethical conduct and the professionalisation of the SAPS.

This should be extended to oversee efforts to prevent and combat corruption in the SAPS and to advise the commissioner, police minister and president on the appointment of the SAPS’s senior management. The Madlanga commission should consider this recommendation. 

When he testified, SAPS commissioner Gen Fannie Masemola was grilled as to why he didn’t simply inform now suspended police minister Senzo Mchunu that his instruction to disband the KwaZulu-Natal-based political killings task team was illegal. His explanation — in effect, that whatever the legal niceties he could not disobey an instruction from his superior — is plausible, particularly in a command-and-control environment like the police.

In any event, the commission should not dwell on what will be a futile attempt to find a bright line between the responsibilities of the minister and the commissioner, a line that is inevitably blurred and porous. The really important allegation made by Masemola was that Mchunu refused to provide his commissioner with any motive for his sudden instruction or to identify those he consulted in arriving at his decision. Mchunu should also be asked why he chose to convey his decision on December 31, when he knew the commissioner was on leave.   

Gen Shadrack Sibiya, the now-suspended deputy national police commissioner, will undoubtedly be asked to account for his alleged flagrant disregard of the commissioner’s instruction to leave the processing of the task team’s disbandment to himself, and his indecent haste in seizing the live dockets, only to leave them gathering dust in the SAPS HQ.

As with Mkhwanazi, he should also be asked to account for the long-standing conflict between them. Could it be that both had their eyes on the commissioner’s job, or maybe the vacant position of head of the Hawks? Or could it be that Sibiya (and Mchunu) did indeed facilitate the infiltration of organised crime into the SAPS? 

There is much still to flow through the commission’s sewers, so take your seats, ladies and gentlemen — reality TV is getting all too real in SA. 

• Lewis, a former trade unionist, academic, policymaker, regulator and company board member, was a co-founder and director of Corruption Watch.