Retired Constitutional Court Justice Yvonne Mokgoro wants to know if a decision has been made on whether suspended deputy prosecutions boss Nomngobo Jiba should be prosecuted for fraud and perjury cases.
"The parties should confirm whether or not a decision has been made and if so, furnish us... by today (Wednesday)," she said.
This comes after Jiba's legal team raised concerns about a statement before the commission, by senior prosecutor Jan Ferreira, who was tasked with prosecuting Jiba on fraud and perjury cases.
Jiba's advocate, Thabani Masuku, SC, told Mokgoro that they were told that a decision had been made. However, he said his client hadn't been informed about it.
Masuku raised concerns about Ferreira's statement, saying the decision on Jiba's prosecution may "inform on how far we go with him [during cross-examination]".
"The decision may well be that the criminal trial must proceed or must not proceed. If the prosecution proceeds, we have a problem because it informs how far we go with him, especially if he is reappointed as the prosecution in the case," Masuku said.
"We don't want to put statements to him that will affect our rights when we appear in the criminal case," he said.
"What we have today is a witness who is a potential prosecutor in a potential criminal case against advocate Jiba. There should be fitness questions raised about advocate Jiba... .we say it is not fair to even ask advocate Jiba to respond to a potential prosecutor," Masuku said.
Masuku said they needed the inquiry to "encourage" the National Director of Public Prosecutions (NDPP) to announce a decision.
Advocate Masuku for Jiba said they are faced with difficulty relating to how they will cross-examine Ferreira. He says there is a decision that still needs to be taken which relates to pending criminal case and that the decision sits in the office of the acting NDPP.
"Do we know if a decision has been taken?" Mokgoro asked.
"This is what we want the inquiry to establish... ," Masuku responded.
Mokgoro ordered the parties to submit brief heads of argument on Thursday morning, providing details about how the right to a fair trial could be impacted.
In August 2015, former NDPP Shaun Abrahams withdrew charges of perjury and fraud against Jiba.
Masuku says the inquiry should "encourage the NDPP to release the decision on whether to prosecute or not".
The charges related to her decision to prosecute Johan Booysen, the former head of the Hawks in KwaZulu-Natal, for racketeering.
In 2017, the Gauteng High Court in Pretoria set aside the decision to withdraw the charges.
National Prosecuting Authority (NPA) spokesperson Luvuyo Mfaku previously told News24 that the NPA withdrew its application for leave to appeal the high court ruling that set aside Abrahams' decision.
"We have complied with the order of the court. The former NDPP referred the matter to the [director of public prosecutions] in the North West to have the matter considered there so we realised there is no point in pursuing the appeal," Mfaku said at the time.
The commission is looking into Jiba's fitness to hold office and that of former special director of public prosecutions Lawrence Mrwebi.
The inquiry continues on Thursday.