Chief Justice Mogoeng Mogoeng chairs the ninth annual session of the executive bureau of the Conference of Constitutional Jurisdictions of Africa (CCJA) in Durban yesterday. Mogoeng is the president of the CCJA, which brings together African constitutional jurisdictions and aims to support and deepen democracy on the continent.
Durban - Chief Justice Mogoeng Mogoeng said he was sure President Jacob Zuma sought legal advice on his constitutional mandate - on whether to narrow or broaden the terms of reference in the commission of inquiry into state capture.

The Department of Justice and Constitutional Development issued a statement on Wednesday confirming that the terms of reference for the commission of inquiry into state capture allegations would be released on Thursday .

Mogoeng was speaking to The Mercury on the sidelines of the Conference of Constitutional Jurisdictions of Africa’s 9th Session of the Executive Bureau in Zimbali, north of Durban, on Wednesday.

“All I know is that the constitutional responsibility to determine the terms of reference rests with the president as the constitutional statutory authority that has to determine the terms of reference.

“It is neither for the chief justice nor for the chairperson of the commission to determine the terms of reference,” he said.

He added that he was not aware if Public Protector ­Busisiwe Mkhwebane had been approached to help with determining the terms of reference after she had made herself available to do so.

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Mkhwebane had suggested that the terms of reference be broadened. “I would imagine that in the process of determining the terms of reference, it is open for the president to approach anybody, who he thinks has the expertise to assist, to contribute in shaping up the terms of reference ­approximately,” Mogoeng said.

The terms of reference have been a contentious issue with criticism levelled against those, including Mkhwebane, who have called for them to be broadened and not only focus on former public protector Thuli Madonsela’s report into state capture.

Also read: #StateCapture: Deputy Chief Justice Zondo stalled by Zuma

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However, Mogoeng said Zuma was aware of Madonsela’s report and, with the benefit of legal advice, would know what his powers in relation to the appointment of the inquiry and the determination of the terms of reference were.

“Based on that legal advice, I’m sure he knows what his powers in relation to the appointment of the commission and the determination of the terms of reference are.

“Based on that advice and his understanding of his mandate, it would then be up to him to decide whether the terms are narrow or broad,” said Mogoeng.

Mogoeng said Deputy Justice Raymond Zondo had indicated that six months might be just too short a period to enable this commission of inquiry to execute this mammoth task to its completion.

The Mercury