The Madlanga Commission of Inquiry is facing scrutiny over its ability to enforce witness attendance, following the failure of two key witnesses to appear before it. North West businessman Suliman Carrim and former senior Crime Intelligence officer Feroz Khan have ignored subpoenas, with the commission opting to file criminal charges against them. This approach differs from the one taken in the case of former president Jacob Zuma, who was sentenced to 15 months in prison for contempt after defying a court order to appear before the Zondo Commission.
According to Constitutional law expert Professor Pierre de Vos, a commission cannot force someone to testify if they choose not to, as it does not have the power to arrest or bring them to testify. De Vos explained that if parties refuse to honour the commission's order, only a court can find them in contempt. The Madlanga Commission has referred the matters to the prosecuting authority, which now has to decide whether to charge or not. This process may lead to a delay in enforcing the commission's orders.
The Commissions Act provides that a witness who fails to attend an inquiry on the date and at the place specified in the summons, or who does not remain until the conclusion of the proceedings or until excused by the chairperson, is guilty of an offence. Despite this, Khan and Carrim have still not been arrested, formally charged in court, or compelled to appear before the commission. The commission's spokesperson, Jeremy Michaels, did not respond to questions about the status of the cases.
De Vos noted that the difficulty with cases like this is that a person can only be punished after the fact for contempt. The National Prosecuting Authority (NPA) must establish whether there is a case to answer and then decide whether to press charges. If that happens, the person will have to appear in court, either through arrest or voluntarily. This process may create a loophole for witnesses to ignore subpoenas, especially if they believe that sick notes are sufficient.
The Health Professions Council of South Africa recently defended doctors' integrity, stating that alleged fraudulent or inadequate medical certificates account for only about 2% of complaints against doctors. However, the issue of sick notes and their potential misuse remains a concern. The commission's approach to enforcing witness attendance may need to be reviewed in light of these challenges.
The cases of Carrim and Khan have raised questions about the effectiveness of the commission's powers to enforce witness attendance. While the commission has opted to file criminal charges, the delay in enforcing these charges has raised concerns about the potential for witnesses to ignore subpoenas with impunity. The NPA and SAPS are yet to provide updates on the status of the investigations.
The Madlanga Commission's challenges in enforcing witness attendance highlight the complexities of investigating high-profile cases. The commission's ability to gather evidence and testimony from key witnesses is crucial to its success. However, the current approach may need to be reviewed to ensure that witnesses are held accountable for ignoring subpoenas.
Key points
- The Madlanga Commission of Inquiry faces challenges in enforcing witness attendance despite setting a criminal charge against two key witnesses.
- Constitutional law expert Professor Pierre de Vos notes that a commission cannot force someone to testify if they choose not to.
- The commission's approach to enforcing witness attendance may create a loophole for witnesses to ignore subpoenas.
