Procedural irregularities will not exonerate VBS accused

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Procedural irregularities will not exonerate VBS accused

‘One of the most often utilised and effective methods used by implicated people to defend themselves is to argue that the person who investigated a matter or compiled a report that implicated them in wrongdoing or corruption did so in a procedurally unfair manner. Often, the implicated person threatens to go to court, either to sue the person making the allegations for defamation or to challenge the procedure used to compile the report.’ In an analysis on his Constitutionally Speaking blog, constitutional law expert Professor Pierre de Vos argues this is a tactic which is being used by some individuals implicated in Advocate Terry Motau’s ‘Great Bank Heist’ report about the looting at Vele investments and VBS Bank. Because Motau chose not to interview all the implicated persons, he says, some have argued that the conclusions and recommendations in the report should be ignored because the process followed was procedurally unfair and hence unlawful. He says this argument fails to address the larger question – whether the allegations or findings contained in the report are true or not. ‘Even when an investigative process was not procedurally fair, the findings could still be correct.’ While investigators have to comply with the procedural fairness requirements contained in the Promotion of Administrative Justice Act (PAJA), the Constitutional Court – in Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd and Another – held that it would depend on the facts of each case whether the rules of procedural fairness would apply to an investigation. According to De Vos, the court held that an investigation which ‘pronounces on the culpability’ of an individual or organisation would have to be afforded the opportunity to that individual – in terms of PAJA – to make whatever representations they may wish to make. Similarly, if the individual or organisation were ‘found guilty’, then the relevant provisions of PAJA would have to be invoked before an appropriate sanction is considered and imposed. He says the findings contained in the VBS report might be set aside on procedural grounds, but it would not erase the criminal activity detailed in the report and would not exonerate any of the people implicated in the report from wrongdoing. ‘Never forget that,’ he says.

Full analysis on the Constitutionally Speaking blog

Great Bank Heist report

Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd and Another

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