Fighting back against corruption: Introducing the Special Tribunal

The Special Tribunal is a new court with judges to recover money lost to corruption

While most judges are appointed to sit as judges of the Superior Courts (the High Court, up to and including the Constitutional Court), a small group has been designated to sit in the Special Tribunal. This is a special court to deal with the consequences of endemic corruption by clawing back stolen public money. Judges Matter takes a deep dive into this new age court.

ABOUT THE SPECIAL TRIBUNAL

The Special Tribunal is a specialised court set up to decide civil cases arising out of investigations by the Special Investigating Unit (SIU). The Special Tribunal adjudicates the civil cases filed by the SIU when it seeks to recover public funds siphoned from the fiscus through corruption, fraud, and illicit money flows.

Criminal cases arising out of these illegal activities are investigated by the Hawks and prosecuted in the Specialised Commercial Crimes Court by the National Prosecuting Authority (with asset seizures by the Asset Forfeiture Unit).

President Cyril Ramaphosa set up the Special Tribunal in 2019 through a proclamation in terms of section 2(1)(b) of the Special Investigating Units and Special Tribunals Act 74 of 1996 (the ‘SIUST Act’).

The status of the Special Tribunal

The Special Tribunal is equivalent in status to the High Court of South Africa. This was confirmed in the case of Special Investigating Unit v Caledon River Properties (Pty) Ltd t/a Magwa Construction. The case involved the unlawful award of the contract for the restoration of the border fence between South Africa and Zimbabwe. One of the parties had argued that the Special Tribunal was not a ‘court’ as defined by the Constitution, and therefore had no power to declare the contract dispute as unconstitutional and invalid. In that case, Judge Lebogang Modiba analysed the features of the Special Tribunal (discussed more fully below) and found that they mirror those of the High Court. She therefore concluded that the Special Tribunal is a court of equivalent status to the High Court, as contemplated in section 166(e) of the Constitution.

The Special Tribunal’s procedural features

The Special Tribunal follows the same uniform rules of procedure as the High Court (although it has some rules uniquely applicable to it). However, the procedure of the Special Tribunal is generally more flexible and inquisitorial than the High Court, especially at the pre-trial stage.  This allows the Tribunal to quickly get to the real issues of the dispute and decide the case more efficiently. In SIU v Mazibuko, a complex case involving a senior Eskom executive accused of amassing huge wealth through corruption, Judge Thina Siwendu was able to hand down a final order attaching R11 million worth of assets in less than a year since the case was filed.

One of the unique features of the Special Tribunal is that it does not have ‘general’ jurisdiction (the power and authority to hear cases) which would allow it to deal with all civil cases as the High Court would. Instead, its jurisdiction is limited to only those cases arising out of SIU investigations into corruption, fraud, maladministration or illicit money flows in the government and public administration, including state-owned companies.

The Special Tribunal commonly uses the Case Management procedure. This is where the judge intervenes at an early stage and clears the procedural hurdles caused by lawyers’ antics, ensuring that the case gets to the trial stage as quickly as possible. This has been used to great effect when the Special Tribunal had to deal with cases coming out of the Covid-19 Personal Protective Equipment fraud and corruption scandal.

Judgments of the Special Tribunal are equivalent to judgments of a single judge of the High Court. They may therefore only be appealed to a Full Bench of three judges, or to the Supreme Court of Appeal.

COMPOSITION OF THE SPECIAL TRIBUNAL

Hearings and trials in the Special Tribunal are presided over by judges of the High Court (although, in terms of the SIUST Act, magistrates and senior lawyers may also be appointed).

The current members of the Special Tribunal were appointed by President Ramaphosa on 24 February 2019 for a period of three years, which will terminate in February 2022.

Judges of the Special Tribunal

Judge Mlindelwa Makhanya heads up the Special Tribunal as president and is assisted by 7 other judges who serve as associate members. The current members of the Special Tribunal Judge Lebogang Modiba and Judge Thina Siwendu from Johannesburg, with Pretoria Judge Billy Mothle completing Gauteng High Court contingent. Judge Kate Pillay is based in Durban, while Judge Siraj Desai is based in Cape Town. The remaining members are Eastern Cape Judges David van Zyl and Johannes Eksteen, both based in Gqeberha.

Most of the Special Tribunal’s hearings are held at the state-of-the-art Booysens Court Complex in Johannesburg, although, because of the pandemic, many more have been held virtually.  The judges of the Special Tribunal are stationed at high courts across South Africa, where they can also hold hearings.

So far, most Special Tribunal trials and hearings have been held in Johannesburg, with Judges Modiba, Siwendu, and Mothle presiding, and only one in Durban where Judge Pillay has presided. Although there are 8 judge-members of the Tribunal, it is curious that the overwhelming majority of cases have been handled by only Judge Modiba.

Operational staff

The Special Tribunal is run by Judge Mlindelwa Makhanya as chairperson and several additional judges. He is assisted by a staff complement including the Registrar and assistant registrars, who oversee the administration of the Tribunal. There’s also a communications director and spokesperson, and secretaries who assist the judges in carrying out their functions.

OPERATIONS OF THE SPECIAL TRIBUNAL

The Special Tribunal is headquartered at the Booysens Court Complex in Johannesburg, where it runs most of its operations. Cases are filed in physical form at the registry office at the court but they may also be filed online on the Caselines system.

Performance of the Special Tribunal

Over the course of twenty years since the enabling legislation was passed, the SIU treated its cases as ordinary civil lawsuits and therefore took them to the High Court in different provinces. However, since its establishment in 2019 most SIU cases now go to the Special Tribunal.

According to data from the SIU (see government report here) in the period between October 2019 – when the Special Tribunal started operations – and December 2020, the SIU filed over 46 civil lawsuits in the Special Tribunal, with the value of R6.9 billion. This is compared to the 50 civil lawsuits with a value of R9 billion filed in the High Court since 2008.

A practical example is useful in illustrating the value of the Special Tribunal to the SIU’s performance. In 2014 the SIU filed a civil lawsuit against architect Minenhle Makhanya for his role in the now-infamous scandal of security upgrades to former President Zuma’s Nkandla home. The case snaked through the High Court for several years until it was ultimately transferred to the Special Tribunal, where it has now reached the trial stage through strict case management by Judge Kate Pillay.

From March 2020 – when the Covid-19 pandemic struck – to December 2020, the SIU instituted in the Special Tribunal 11 civil lawsuits with the value of R259 million. These cases largely relate to unlawfully awarded contracts for Covid-19 personal protective equipment. Within weeks of the SIU concluding its investigation into the infamous Digital Vibes scandal, Judge Lebogang Modiba at the Special Tribunal ordered the freezing of R22 million worth of assets. This scandal involved friends and relatives of Health Minister Dr Zweli Mkhize who were unlawfully awarded a contract worth R150 million for Covid-19 communications. The Tribunal hearing is likely to be in early 2022.

UPDATE (17 JULY 2024):

THE SPECIAL TRIBUNAL IS NOT A ‘COURT’

There have been some developments since this article was originally published on 15 December 2021.

Above, we explain that, according to the Caledon River judgment of February 2021, the Special Tribunal is a court of a status equivalent to the High Court. However, in March 2023 the Constitutional Court ruled that the Special Tribunal is not a ‘court’ as envisaged by section 166 of the Constitution. This ruling is in judgment of Ledla Structural Development (Pty) Limited v Special Investigating Unit [2023] ZACC 8 (10 march 2023).

From paragraph 42 of the Ledla judgment the Court explains that the Special Tribunal does not have the features of a court of law and thus cannot be called a ‘court’ in the true sense. The features the Court identified as making the Special Tribunal different from a court was that the Special Tribunal operates on an ‘ad hoc’ basis, as and when it is needed. In addition, the members of the Tribunal are not only limited to judges, as most courts are, but they include acting judges, advocates and attorneys. Furthermore, members of the Special Tribunal do not security of tenure, and the president determines their period of appointment.

However, at paragraph 53 of the Ledla judgment the Constitutional Court emphasizes that the Special Tribunal still retains important powers of judicial review.  This is the power for judges to scrutinise and invalidate corrupt government contracts (or tenders) or maladministration in government affairs. Therefore, the Special Tribunal still retains its ‘teeth’ as an adjudicative body in the fight against corruption.

Significantly, the Constitutional Court did not make any finding on the limits of the Special Tribunal to issue remedial orders (i.e. court orders that flow from a ruling that a government contract or action in invalid). That means the Special Tribunal may still issue orders for the preservation and forfeiture of assets, and the disgorgement of profits in cases of alleged corruption in the awarding of government tenders. This means that the tribunal may still authorise the Special investigating Unit to attach assets and take away the profits of corrupt or unlawful government tenders.  This is yet another affirmation of the ‘teeth’ of the Special Tribunal in the fight against corruption.

DO JUDGES MATTER AT THE SPECIAL TRIBUNAL?

The serious problem of endemic corruption in government and general society is eating at the foundations of democratic South Africa. The Special Tribunal is a new tool in the arsenal for fighting against corruption. As a new-age adjudicatory tribunal, equipped with state-of-the-art technology, it holds tremendous potential for achieving this mandate. Based on information about its performance (where assets worth hundreds of millions of Rands have been recovered), it is already showing early signs of success. This is assisted by the high calibre of judges who preside in its cases. No doubt, judges matter at the Special Tribunal.

It is concerning that, in recent years (see here and here) there have been several controversies over the appointment (or non-appointment) of Special Judges. This needs to be urgently addressed through a new piece of standalone legislation that will affirm the Special Tribunal’s judicial and operational independence. Or better yet, the permanent transfer of Special Tribunal’s functions to be the specialised civil asset recovery section of the High Court. Judges Matter will keep a close watch.

Mbekezeli Benjamin is research and advocacy officer at Judges Matter.