EVIDENCE OBTAINED BY EMPLOYEES OF THE ZONDO COMMISSION MAY NOW BE MADE AVAILABLE TO LAW ENFORCEMENT AGENCIES.

In 2018, the Zondo Commission (commonly known as the State Capture Commission) was established in terms of the Commissions Act. The purpose of the Commission is to conduct an Inquiry into Allegation of State Capture, Corruption and Fraud in the Public Sector, including Organs of State.

On 28 July 2020, regulation 11 of the Regulations governing the Commission of Inquiry were amended. Prior to their Amendment, regulation 11 prohibited any employee from communicating any knowledge obtained in relation to the Inquiry to any other person. The employees of the Zondo Commission were further prohibited from allowing any other persons access to records and documentation relating to the Commission and written permission was required for the sharing or distribution, publication and perusal of any document submitted to, or destined to be submitted to the Chairperson of the Commission, Deputy Chief Justice, Raymond Zondo.

This meant that only the employees (and other directly involved persons including the witnesses) of the Commission had access to the information and documentation relating to the Inquiry and were prohibited from sharing any such information with other Law Enforcement Agencies. Notably, prior to the amendment of regulation 11, only the Commission could recommend an investigation into persons who were subject to the Commission’s inquiry, after the conclusion of the work of the Commission was complete.

The Amended Regulations now provide that, upon the conclusion of the Inquiry, employees of the Commission may be employed or appointed as consultants by other state Law Enforcement Agencies, and upon such employment or appointment, are no longer prohibited from disclosing information, records or documents obtained during the performance of their duties in connection with the functions of the Commission.

This will enable Law Enforcement Agencies to employ, or appoint, highly skilled, knowledgeable and experienced persons who are no longer prohibited from sharing information obtained in relation to the Inquiry. This flow of information and access to resources may serve to speed up the investigations and prosecutions conducted by Law Enforcement Agencies.

The effect of this change in the regulatory framework will mean that information which ordinarily would not fall within the terms of reference of the Zondo Commission, which came to the knowledge of the employees of the Zondo Commission whilst they were working for the Commission, can be disclosed to other law enforcement agencies, who may investigate and prosecute on the basis of the information received from the employees of the Commission.

Notably, these new regulations have yet to be challenged since their publication, however at this time there are concerns that the amended regulations may offend the right against self-incrimination contained in section 35 of the Constitution as the information which is received by the Zondo Commission is largely received on the basis of a subpoena having being issued by the Commission, which subpoena cannot be avoided without good cause. The fact that a person would incriminate themselves in supplying the requested information is not good cause for refusing to submit information requested by the Zondo Commission.

APA Africa will continue to provide updates as developments occur on the subject.