Can the Special Tribunal order Asset Forfeiture? Landmark case tests South Africa’s anti-corruption powers
Background of the case
On 15 May 2025, the Special Tribunal dealt with a case that could redefine how South Africa recovers the proceeds of corruption.
Key question
In a case involving the Special Investigation Unit’s (SIU) multimillion-rand investigation into allegations of corruption, maladministration and fraud at the National Lotteries Commission (NLC), a key question arose: does the Special Tribunal have the power to freeze assets and bank accounts, and order their forfeiture to the state as proceeds of fraud and illegality?
Arguments from the parties
Mr Phillemon Letwaba, a former senior official at the NLC,
challenged the authority of the Special Tribunal to order the forfeiture of a
farm and several other assets based on the SIU’s investigation. Mr Letwaba and
other implicated parties argued that there was no legislative and
constitutional provision allowing the Special Tribunal to make such orders.
In response, the SIU, supported by the NLC, argued that the
Special Tribunal indeed had the power to freeze and order the forfeiture of
assets under the SIU Act, read together with regulations enacted by the
Minister of Justice and the Special Tribunal Rules. They also cited the
Constitutional Court’s judgment in Ledla, which stated that the Special
Tribunal has broad powers to review unlawful contracts and other state conduct
and issue remedial orders.
Role of the DGRU as Amicus Curiae
The University of Cape Town’s Democratic Governance and Rights Unit (DGRU) was appointed as amicus curiae (a neutral friend of the court) to assist the Tribunal in analysing the law on this issue. The DGRU argued that, in terms of the Constitution and the law, asset forfeiture is a carefully controlled power explicitly granted to specific state institutions, such as the National Prosecuting Authority (NPA). In terms of the SIU Act, it does not seem clear that the Special Tribunal has such a power of asset forfeiture. However, because of the Constitutional Court’s judgment in Ledla, the Tribunal does possess broad remedial powers, including the review of fraudulent state contracts and conduct. Specifically, the DGRU’s reading of the law, suggests the SIU must refer asset forfeiture matters to the NPA’s Asset Forfeiture Unit.
Recommendations and next steps
The DGRU proposed that the Minister of Justice be joined in the case, recommending a comprehensive review of the legislation governing the Special Tribunal and SIU to enhance their effectiveness in fighting corruption, especially regarding investigatory and asset recovery powers.
The initial hearing in this case occurred on 15 May 2025, with proceedings set to resume from 4 August 2025.
Update July 2025:
On 20 June 2025, the First to Third Respondents served a notice requesting the SIU and/or the National Lotteries Commission (NLC) to discover certain documents.
On 8 July 2025 the First to Third Respondents’ advised that they would no longer bring an application to strike out information in the NLC’s answering affidavits. On 21 July 2025, the NLC discovered (provided) the requested documents on 21 July 2025. The First to Third Respondents’ reply to the NLC’s answering affidavit is due on 4 August 2025.
The forfeiture application that was originally meant to resume on 4-8 August 2025 has been postponed without a date, but will likely resume before the end of the year.