State Capture Commission v Zuma
Constitutional court analysed self-incrimination and decided that witnesses before a commission may claim privilege against self-incrimination but they must raise the question of privilege with the chairperson of the commission and demonstrate how an answer to the question in issue would breach the privilege and if the chairperson is persuaded the witness may be permitted to refuse to answer the question but privilege against self incrimination is not there for the taking by witnesses and there must be sufficient grounds for showing that in answering question witnesses will incriminate themselves in the commission of a specified crime.
‘ Reliance on the regulations to buttress CASAC’s interpretation is misplaced for a number of reasons.
- First, in our law a regulation cannot be used to interpret a provision in the statute, let alone to give a restrictive meaning to the language bearing a wider meaning.
- Second, the regulations themselves acknowledge that a witness before a commission may decline to answer a question on the ground of a privilege envisaged in section 3(4) of the Commissions Act.
- Third, the fact that regulation 8(2) refers also to a self-incriminating answer does not mean that a witness is not entitled to the privilege against self-incrimination. Regulation 8(2) must be read together with regulation 8(1) which permits witnesses to invoke section 3(4) privileges.
Read in this way, what regulation 8(2) means is that if the privilege is not claimed and a self incriminating answer is given, that answer will not be admissible as evidence against that witness in criminal proceedings.
Lastly, section 203 of the Criminal Procedure Act protects witnesses not only against the use of their own incriminating evidence at criminal trials but also from answering questions which would expose them to criminal charges. For all these reasons, the interpretation advanced by CASAC cannot be sustained.
 The privilege against self-incrimination is not the only privilege witnesses before a commission are entitled to. There may be others. The test is whether such a privilege would have applied to a witness in a criminal trial, for it to be covered by section 3(4) of the Commissions Act.
 However, it lies with a witness before a commission to claim privilege against self-incrimination. In the event of doing so, the witness must raise the question of privilege with the Chairperson of the Commission and must demonstrate how an answer to the question in issue would breach the privilege. If the Chairperson is persuaded, he or she may permit the witness not to answer the question. Privilege against self incrimination is not there for the taking by witnesses. There must be sufficient grounds that in answering a question, the witness will incriminate himself or herself in the commission of a specified crime.”
Quotations from judgment
Note: Footnotes omitted and emphasis added
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
“On Thursday, 28 January 2021 at 10h00, the Constitutional Court handed down judgment in an urgent application filed directly in this Court by the Secretary of the Judicial Commission of Inquiry into Allegations of State Capture (the Commission). On 20 October 2020, the Commission summoned former President Jacob Zuma to appear before it on 16 November to 20 November 2020 to give evidence and be questioned on various matters that are subject of the Commission’s investigations. Mr Zuma attended the Commission’s proceedings on 16 and 17 November 2020. On 16 November 2020, during his attendance at the Commission’s proceedings, Mr Zuma moved an application for the recusal of the Chairperson.
The ruling was given on 19 November 2020 and the Chairperson dismissed the recusal application. Thereafter, Mr Zuma’s legal team informed the Chairperson that Mr Zuma had decided to “excuse himself” from the proceedings. The proceedings adjourned for a break, after which it transpired that Mr Zuma and his legal team had left without the Chairperson’s permission. This led to the Commission’s urgent application in this Court.
The Commission sought to compel Mr Zuma to comply with the summons issued by the Secretary of the Commission, directing him to appear before the Commission on specified dates in January and February 2021. It also sought an order declaring Mr Zuma’s conduct, leaving the Commission without permission in November 2020, to be unlawful and in breach of section 3(1) of the Commissions Act.
In a unamious judgment penned by Jafta J, this Court granted direct access on the ground of urgency. In doing so, it considered the prejudice in the public interest in the Commission’s investigations, the fact that the matter was not opposed and that it bore reasonable prospects of success. The Court held that section 3 of the Commissions Act empowered the Commission to compel witnesses to appear before it and that failure by those summoned to obey laws that govern the Republic amounted to a direct breach of the rule of law, one of the values underlying the Constitution and which forms part of the supreme law.
The Court further held that Mr Zuma was entitled to the privileges envisaged in section 3(4) of the Commissions Act, including the privilege against self-incrimination. However, Mr Zuma was not entitled to the right to remain silent, as this right, guaranteed by section 35 of the Constitution, is only available to arrested and accused persons, and not witnesses appearing before a commission of inquiry. The Court directed that Mr Zuma appear and testify at the Commission.
The applications for admission as amicus curiae by the Council for the Advancement of the South African Constitution and the Helen Suzman Foundation were granted.
Advocate Ngalwana SC’s application to be admitted as amicus curiae was dismissed as it sought relief that differed materially from that sought by the Commission and introduced facts that were not already on record.”