History has a nasty habit of repeating itself. The resort to the appointment of commissions of inquiry by presidents and prime ministers around the world is often for the purpose of parking a political hot potato until it cools, sometimes for the purpose of a cover-up, occasionally to get to the truth and to consider the recommendations for remedial action which the commissioners may make. There is still hope that the current commission on inquiry into State Capture falls into the last category, but many are the slips twixt cup and lip.

The fact that commissioners are often senior judges should not be allowed to mislead the public. Commissions are always the instrument of the executive branch of government. Judges sitting in court are constitutionally required to act impartially, independently and with integrity as they adjudicate disputes. Their findings are binding and their judicial independence is guaranteed.

In contradistinction, the recommendations of a commissioner and the factual findings of a commission bind nobody. Their sole purpose is to guide policymaking and to inform governments on a complex factual matrix that those who govern are too busy to investigate themselves, or, because they lack the skill to do so.

There is nevertheless much to be learnt from the erratic trajectories that past commissions have taken over the years in the context of the threatened challenges to the State Capture Commission by the former president, Jacob Zuma, who himself determined its overbroad terms of reference but, unusually (perhaps illegally) so not the identity of the commissioner. Zuma has long doubted the legality of the commission (without doing much to challenge it) and has more recently threatened recusal proceedings against its chairman, Deputy Chief Justice Raymond Zondo. Zuma contends that the DCJ is biased against him. Although he is not an accused person on trial before the commission, Zuma is entitled to the benefits of natural justice which include a fair hearing of his evidence.

It is instructive to compare the outcomes of two commissions into civil aviation disasters that had different but equally unsatisfactory results.

After the Helderberg, a Boeing 747 Combi of SAA, crashed into the sea near Mauritius en route from Taipei to Johannesburg on 28 November 1987, Mr Justice Cecil Margo was appointed to chair a commission of inquiry into the disaster in which 159 people, all crew and passengers on board, died. He appeared to be a good choice for the task as he was a World War 2 bomber pilot, highly decorated for his exploits, an experienced judge who had presided in earlier inquiries into the crash of the Rietbok off East London as well as an incident on the runway at Windhoek Airport. During his career at the Bar he led the evidence at the inquiry into the air crash in what is now Zambia in which Dag Hammarskjöld, UN Secretary-General was killed and often appeared for SAA. As SAA was not on trial before him, he would have waved away any request that he recuse himself in the light of his prior relationship with SAA. No such application was made.

Justice Margo, after hearing a great deal of evidence, listening to the “black box” flight recorder privately and after considering the views of experts, found himself unable to make a finding as to the cause of the crash and so ruled in his commission report.

This open verdict had at least two effects: SAA was able to retain its licence to fly and a cottage industry of conspiracy theories grew up around the crash. Perhaps the most cogent of these theories is that of Dr David Klatzow, who was retained by a newspaper to investigate the crash in the context of Press Council complaints and a threatened defamation action against it. Klatzow took it upon himself to review the eight volumes of evidence which make up the record of the “Margo Commission”. He also did some sleuthing of his own.

During the course of the inquiry, Justice Margo committed some irregularities that have driven Klatzow to the conclusion that the judge participated in a cover-up of the cause of the crash to protect SAA and its continued ability to fly commercially. He kept evidence available from the cockpit voice recorder away from public scrutiny because it showed that the fire on board the Helderberg did not break out on descent into Mauritius, but rather during bad weather over the South China Sea many hours earlier. The fact that the pilot flew on after containing that fire raises red flags as to the nature of the cargo that caught fire. SAA would lose its IATA licence if it were established that it carried armaments or forbidden inflammable material on a civilian flight in breach of regulations and international sanctions in place against the apartheid regime.

Klatzow concludes in his book Steeped in Blood that:

“…the materials I have collected over the years point to one feasible scenario only: that the Helderberg was carrying rocket fuel destined to assist a flagging South African Air Force in their Angola campaign. This rocket fuel caught fire, and everything that happened subsequently was a sustained government conspiracy to conceal the truth from the public and the rest of the world”.

The matter received the attention of the Truth and Reconciliation Commission which disagreed with the “Margo Commission” finding that the fire on board the Helderberg could have been caused by ordinary packaging material mainly because it was satisfied that the fire was contained and burned fiercely at high temperature. Questions raised during the TRC investigation process “indicated that the investigators of the “Margo Commission” had not followed correct procedures.

The conclusion reached by the TRC reads:

“25. This Commission’s investigation into the Helderberg crash raised significant questions about the incident itself as well as the subsequent investigations that were conducted.

“26. The matter is still under investigation by the special investigation team of the Gauteng Attorney General.

“27. It is clear that further investigation is necessary before this matter can be laid to rest.”

The chief concerns of the TRC may be summarised as:

•       In breach of the applicable regulations, documents and recordings relating to the flight were not secured;
•       The cargo manifests were missing;
•       Evidence that there may have been two fires on board was suppressed;
•       The tape of conversations between the flight and Springbok Radio Control remains missing; and
•       Neither Armscor personnel nor eyewitnesses to the crash were called to give evidence before the Margo Commission.

The task of further investigation is now that of the Director of Public Prosecutions in Gauteng, the successor to the Attorney-General. To suggest that there is no political appetite for a renewed investigation is to understate the position.

The ANC government has no interest in the plight of the dependents of the victims of the crash and every interest in keeping SAA flying, so much so that it is prepared to inject R10-billion into the business rescue process needed to keep SAA in the air. If the thesis put forward by Klatzow is shown to be sound, SAA is doomed. It is accordingly unlikely that the inquiry will be reopened without considerable pressure from the families of the deceased. Nor is it likely that there will be any criminal prosecutions after so long a lapse of time.

The alleged complicity of Justice Margo in the official cover-up has been replicated in recent years by the misbehaviour of the Seriti Commission into the arms procurement scandal. Its exculpatory findings have been set aside on judicial review in the High Court. Complaints about the conduct of the judges who sat in that commission are pending before the Judicial Services Commission. Their pensions are on the line. The success of the review proceedings lends credence to the evidence that Justice Willie Seriti set out not to find the truth, but to “silence the Terry Crawford-Brownes of this world” as was alleged on oath by a senior investigator. It was at the insistence of Crawford-Browne that the Zuma government was compelled via public interest litigation to appoint the Seriti Commission. Zuma chose his commissioners carefully.

It is still in the public interest that the arms deals be challenged. The Peace Centre is doing so in High Court litigation in Pretoria using the deal with BAE (the largest arms deal) as a test case. If the procurement was irregular, if the loan underpinning it was unauthorised, or if corruption in the form of “commissions” is proved, then legal consequences flow that could see a vast inflow of funds to Treasury.

A second air crash inquiry in New Zealand also contains lessons for commissioners everywhere. Air New Zealand used to fly sight-seeing flights to Mount Erebus in the Antarctic. That jaunt stopped after the crash of its Flight 901 with loss of all aboard on 28 November 1979. New Zealand’s official crash report was released by the Chief Inspector of Air Accidents citing serious pilot error as the chief cause of the accident. Public demand led to the formation of a Royal Commission of Inquiry into the crash which was chaired by Justice Peter Mahon, like Justice Margo, a veteran of World War 2 and a senior judge.

Justice Mahon produced his report on 27 April 1981. It cleared the crew of blame for the disaster and found that the major cause of the crash was the reprogramming of the aircraft’s navigation computer without the crew being notified. Justice Mahon considered that airway executives had engaged in a conspiracy to whitewash the inquiry, covering up evidence and lying to investigators, and concluded that they had told “an orchestrated litany of lies”. Justice Mahon retired from the New Zealand High Court bench in 1982 and died in 1985.

In 1983 the Privy Council held that Justice Mahon had made serious mistakes of law through acting in excess of his jurisdiction and in breach of natural justice by making findings of a conspiracy by Air New Zealand to cover up the errors of the ground staff without putting them on their defence. This conclusion was reached on the point of law that those accused of the conspiracy had not been given an opportunity to contest it in Justice Mahon’s inquiry. His conclusions that documents had been suppressed, and that witnesses had lied, were not set aside as an appellate court is not permitted to investigate findings of fact.

Justice Mahon wrote a prize-winning book, Verdict on Erebus about his investigation. In it, he relates an incident and a precedent that informed his approach (page 145 et seq). The incident concerns a chat in a lift with a young reporter who informed the judge that there was a book under preparation in which his verdict was predicted as being unfavourable to Air New Zealand. The judge explained that he would not, and indeed could not, make an adverse credibility finding until he had heard all the evidence. The evidence was still in progress at the time of the conversation.

Justice Mahon was also aware of the ructions in an inquiry into police misconduct which was running under the chairmanship of a robust retired Australian judge “imported” to investigate the matter in Auckland. When the evidence revealed a police cover-up and the giving of false evidence by the police, the judge made his adverse views known both robustly and in no uncertain terms, as is the practice in New South Wales. The police did not take this criticism lying down. They sought to interdict the commission from continuing (called a prohibition order in New Zealand law) on the basis of the actual or apparent bias against their witnesses that could be deduced from the critical remarks of Justice Taylor. They failed in the application and the “Taylor Commission” later reported in a manner adverse to the police.

Another inquiry in which findings adverse to the police were made is the “Farlam Commission of Inquiry” into the police shootings at Marikana in August 2012. In that inquiry, there was an attempt to mislead the inquiry as to the modus operandi and planning operations of the police command in the run-up to the incidents investigated. Unfortunately for those involved in the attempt to mislead the commissioners, an anonymous whistle-blower tipped off the evidence leaders as to where they could find the minutes of meetings relevant to the planning of operations on the day of the shootings.

As reported by Lelethu Tonisi in Daily Maverick on 16 August 2019, the Farlam Commission:

 “…highlighted poor leadership from SAPS as the main factor that led to the police opening fire on protesting miners, killing 34 on 16 August 2012.

“It recommended that the appointments of senior command personnel were audited to avoid confusion among the rank and file within SAPS, that the use of force in public order policing needed to be reviewed and that automatic weapons had no place in public policing.

“The National Development Plan (NDP) shared a similar sentiment, calling for the demilitarisation of the SAPS ‘in order to ensure that the police were a civil service’ ”.

More than a year after this report, the Police Portfolio Committee in the National Assembly is giving consideration to some reforms suggested by the ministry of police in the SAPS Amendment Bill. No one has been prosecuted for the shootings. The urgent recommendation that the police be demilitarised has not been given effect to despite having been accepted by the government when it received the report of the Farlam Commission. That report contains a useful summary of the law as it pertains to the running of commissions.

The then National Commissioner of Police, Riah Phiyega, did lose her job after a board of inquiry recommended by the Farlam Commission found her unfit for office. Her court challenges to both the recommendation of the Farlam Commission and the findings of the Classen Board of Inquiry were overtaken by the expiry of her contract of employment and delays in the judicial system. Her role in the attempted cover-up by the police sealed her fate.

From these various experiences in earlier commissions, it is possible for those involved in various capacities in the State Capture Commission of Inquiry to consider their responses to any challenges that may arise. DM