Page 6 - Business Sense

COMMISSIONS OF INQUIRY COMMERCIAL AND

– A TOOTHLESS HOUND? CONSTRUCTION

LAW
Philip Thompson, Partner & be run and to some extent, what thwart the effectiveness of a COI.
Marikah Calo, Candidate Attorney, it should uncover.
Cox Yeats Attorneys Importantly, a COI is not a
A COI is a fact-finding mission, court of law. Those not familiar he Hay Team, headed regularly acts as an arbitrator
ver the past six years there gathering and evaluating as with COIs often mistake a by Senior Partner, and presents seminars on the
have been a multitude of much evidence as possible commissioner as having the TAlastair Hay, specialises subject. He is also listed as a
OCommissions of Inquiry to allow the commissioner authority to make binding rulings predominantly in Commercial specialist in Corporate Law
(‘COI’) convened to inquire into to make findings and give or judgments akin to a judge. The and Construction Law. in the global publication Best
various scandals. COIs steal recommendations. Further, commissioner’s power is, however, Lawyers (www.bestlawyers.
the limelight and are almost a COI may also serve the restricted to only making findings The team comprises Alastair, com) published in the United
inescapable in the news. purpose of healing past wounds on where the fault may lie and to Philip Thompson, Marikah
and making reparation for make recommendations as to the States.
We need to reflect, however, wrongdoing, which was a manner of redress. Further, as Calo and Abigail Dunlop.
on what purpose a COI serves prevalent theme in the Truth the report is not legally binding, Alastair has been with the Philip is a partner who
other than to keep the news and Reconciliation Commission, the President is entitled to act specialises in construction
interesting. It is, after all, tax and more recently, the Marikana on or ignore the findings and firm since 1977 and became litigation and alternative
payer’s money being spent. While Commission. recommendations as he deems fit. a partner in 1980. He is a dispute resolution.
it is worthwhile to have matters Fellow of the Association
of public concern thoroughly At the conclusion of the COI, Although the importance of of Arbitrators (Southern Marikah is in her second year
investigated and reported on – if the commissioner is expected to uncovering fraud and corruption Africa), current Chairman of of articles. Abigail commenced
the procedure is nothing more deliver a report to the President, cannot be understated (as is the KwaZulu Natal Chapter her articles at the beginning of
than a toothless hound, what is detailing his/her findings currently being highlighted of the Association and Vice the year. n
the point? Knowledge is power, regarding the issues at hand in the Zondo Commission) it Chairman of the national body.
but it is what we do with that and making recommendations is important to reflect on the They can be contacted on
power that counts. on how to address those outcomes of the various COIs He is a member of the Tel: 031-536-8500
findings. The evidence given convened over the past years International Bar Association Email: ahay@coxyeats.co.za
The power to appoint a COI by witnesses during the COI and whether they have in fact and a recognised expert in the pthompson@coxyeats.co.za
lies with the president (or the may be admissible in criminal achieved anything worthwhile. field of Construction Law. He mcalo@coxyeats.co.za
premier of a province). The proceedings. The power and adunlop@coxyeats.co.za
president is empowered by the authority to lay charges against To the extent that no real action
Commissions of Inquiry Act witnesses and others implicated is taken in the wake of a COI that
8 of 1947 to appoint a COI to in a COI lies with the National reveals wrongdoing, it is only the
investigate any matter of public Prosecuting Authority. public that suffers. Once the dust
concern. The president sets settles in the Zondo Commission,
the regulations and points of It may be years before a COI is we can only hope that appropriate
reference for the COI, which concluded and even longer for legal steps are taken against
accordingly guides the way it will a report to be released. This can those implicated. n

Alastair Hay, Philip Thompson, Marikah Calo, Abigail Dunlop,
Partner Partner Candidate Attorney Candidate Attorney

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