(1)
| (a) |
The independent assessor has the power on receipt of a complaint or an allegation or on the ground of information that has come to his or her knowledge and which amounts to conduct such as referred to in section 45, to conduct an investigation for the purpose of determining— |
| (i) |
the merits of the complaint, allegation or information; and |
| (ii) |
the manner in which the matter concerned should be dealt with. |
| (b) |
The format and the procedure to be followed in conducting any investigation must be determined by the independent assessor with due regard to the PAJA, substantive fairness and the circumstances of the case. |
| (c) |
The independent assessor may direct that any category of persons or all persons whose presence is not desirable may not be present at any proceedings pertaining to any investigation or part thereof: Provided that in the event that the rights, interests or potential interests of a person so excluded may be affected by such proceedings, all information related to such excluded person obtained during the proceedings concerned must be made available in writing to him or her within a period not exceeding 14 calendar days after such proceedings in order to enable him or her to make written representations to the assessor if he or she so wishes. |
[Section 45A(1) substituted by section 20(a) of Notice No. 21, GG 40548, dated 17 January 2017]
| (2) |
Notwithstanding anything to the contrary contained in any law, no person may disclose to any other person the contents of any document in the possession of the independent assessor or the record of any evidence given to the independent assessor during an investigation, unless the independent assessor determines otherwise: Provided that such document or evidence must be made available— |
| (a) |
for purposes of, or during, proceedings before a court, tribunal or forum; and |
| (b) |
to a person, or his or her union representative or legal representative, in the event that the rights, interest, or potential interests of that person may be affected by such document or evidence. |
[Section 45A(2) substituted by section 20(a) of Notice No. 21, GG 40548, dated 17 January 2017]
| (3) |
The independent assessor may, at any time prior to or during an investigation, request any person contemplated in section 48 to assist him or her in the performance of his or her functions with regard to a particular investigation or investigations in general. |
(4)
| (a) |
For the purposes of conducting an investigation the independent assessor may in writing direct any member of the council, employee, student or service provider of the higher education institution or any other person or representative of an entity with a business or other relationship with the institution to submit an affidavit or affirmed declaration or to appear before him or her to— |
| (ii) |
produce any document— |
| (aa) |
in his or her possession; or |
| (bb) |
under his or her control, |
which has a bearing on the matter being investigated, and may interview such person.
| (b) |
The independent assessor or any person contemplated in section 48 and duly authorised thereto by the independent assessor may request an explanation from any person whom he or she reasonably suspects of having information which has a bearing on a matter being, or to be, investigated. |
[Section 45A(4) substituted by section 20(b) of Notice No. 21, GG 40548, dated 17 January 2017]
| (5) |
A directive referred to in subsection (4) must contain particulars of the matter in connection with which the person concerned is required to appear before the independent assessor and must be signed by the independent assessor and served on the person either by— |
| (b) |
delivery executed by a person contemplated in section 48, |
to the concerned person’s last known address as registered with the public higher education institution.
[Section 45A(2) substituted by section 20(b) of Notice No. 21, GG 40548, dated 17 January 2017]
| (6) |
The independent assessor may require any person appearing as a witness before him or her under subsection (4) to give evidence under oath or after having made an affirmation. |
| (7) |
The independent assessor or any person contemplated in section 48— |
| (a) |
must be appointed as a commissioner of oaths in accordance with the relevant Justices of the Peace and Commissioners of Oaths Act, 1963 (Act No. 16 of 1963), prior to administering an oath to, or accepting an affirmation from; and |
| (b) |
may administer an oath to, or accept an affirmation from, any person contemplated in subsection (6). |
[Section 45A(7) substituted by section 20(c) of Notice No. 21, GG 40548, dated 17 January 2017]
(8)
| (a) |
If it appears to the independent assessor during the course of an investigation that any person is implicated in the matter being investigated and that— |
| (i) |
such implication may be to the detriment of that person; or |
| (ii) |
an adverse finding pertaining to that person may result, the independent assessor must give such a person notice of the detrimental implication or possible adverse finding, as the case may be, and provide such person with all the relevant documentation and evidence affecting the rights, interests or potential interests of such person obtained during the investigations conducted by the independent assessor and afford such person the opportunity to respond in connection therewith, in a manner that is expedient under the circumstances. |
| (b) |
If such implication forms part of the evidence submitted to the independent assessor during the proceedings contemplated in section 45A(1)(c) or during an appearance in terms of the provisions of subsection (4), such person must be afforded the opportunity to be heard in connection therewith by way of giving evidence. |
[Section 45A(8) substituted by section 20(c) of Notice No. 21, GG 40548, dated 17 January 2017]
| (9) |
The independent assessor must allow a legal representative or a representative from a trade union of which a person is a member to assist the person contemplated in subsection (1)(c), (2), (4) or 8). |
[Section 45A(9) substituted by section 20(c) of Notice No. 21, GG 40548, dated 17 January 2017]
Special Investigating Units and Special Tribunals Act, 1996
