Madlanga defends early criminal referrals by commission

Retired Justice Mbuyiseli Madlanga has defended the referral of individuals for investigation, even if they have not yet appeared before the commission.

Madlanga says the commission’s terms and references empower the commission to do so.

The referrals to President Cyril Ramaphosa were submitted in an interim report in December.

On Friday, Madlanga reprimanded attorney Hartley Ngoato after he criticised the fact that his client had been referred for immediate criminal investigation and a possible decision on prosecution.

This was despite Ngoato's client having yet to appear before the inquiry.

The issue has divided legal minds, raising questions about fairness, due process and the purpose of commissions of inquiry.

Responding to concerns that witnesses may be reluctant to testify (and potentially incriminate themselves) after interim findings were made against them, legal expert Mpumelelo Zikalala says that argument doesn't hold any weight.

"The Act is very clear. If you have been invited, then you must come, and the level of protection you are going to get is through the Constitution. Once you are there, you can say, I'm not going to answer this question for fear of incriminating myself."

Zikalala says the law does not require a commission to hear from an individual before alerting authorities to potential criminal conduct.

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Security strategist Andy Mashaile says early referrals can be necessary in cases involving organised crime and corruption, where delays may allow evidence to disappear, or witnesses to be influenced.

"This commission was established as a result of the preliminary investigations before the commission, meaning the Political Killings Task Team (PKTT) has been able to unearth acts of criminality and wrongdoing."

It is now up to law enforcement agencies and the commission to take on further investigations, he says.

The commission continues to probe allegations of corruption, political interference and criminal infiltration within the justice system, with its approach now firmly under the spotlight.

To listen to Andy Mashaile, Dr Chris de Kock, and Mpumelelo Zikalala in conversation with 702's Clement Manyathela, use the audio player below: