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South Africa’s judicial commission investigating decades-long delays in the prosecution of cases recommended for prosecution by the Truth and Reconciliation Commission kicked off its work today with a further delay.

After Day One’s proceedings were deferred for two weeks, when the commission will hear evidence on an application for the recusal of its evidence leader, the commission’s spokesperson told media that commissioners were aware that Advocate Ishmael Semenya’s résumé included advising the NPA on prosecutorial policy amendments 20 years ago but “did not think it would be a problem”.

The “problem” is that the policy amendments, later struck down as unconstitutional by the Gauteng High Court, sought to regularise precisely what the NPA is accused of doing irregularly over the intervening two decades: not prosecuting certain cases. The NPA’s reasons for not prosecuting these cases are the reasons that the President established the commission.

The reasons for the High Court's rejection of the proposed amendments included that the proposed policy sought to reopen the TRC amnesty process, confer discretionary powers on the NPA to not prosecute cases despite the existence of sufficient evidence, and remove victims’ rights to see justice served.

One might have expected the commission of inquiry headed by retired Constitutional Court Judge Sisi Khampepe to have considered that the appointment as evidence leader of the very senior counsel who advised the State on an unconstitutional prosecutions policy, which it evidently went ahead and implemented informally, might indeed be considered conflictual, if not downright insensitive.

Judge Khampepe’s two-week postponement of the commission, following a submission by the NPA that it felt “unsettled” by Semenya’s role, which felt “inappropriate”

The commission was established by the President after 22 victims’ families sued the State for R167 million in damages for its alleged mismanagement of the prosecutorial system.

For the record, Advocate Semenya’s professionalism or integrity is not in dispute. But the conflict in his leading evidence at an inquiry into alleged selective prosecutions, having advised the NPA on formalising just such a policy, is obvious. If not a legal conflict, then it is a glaring case of emotional callowness.

Delaying an inquiry into delays rubs salt into old wounds. When the commission finds a conflict, as it must, it will occasion a further delay for the appointment of a new evidence leader.

Issued by Brett Herron, Unite for Change Leadership Council member and GOOD member of the Western Cape Provincial Parliament