A landmark case before the Special Tribunal earlier this year tested the limits of South Africa’s anti-corruption framework: can the Tribunal order that assets suspected to be the proceeds of corruption be forfeited to the state?
In SIU v Letwaba & Others, the Special Investigating Unit (SIU) sought to freeze and eventually forfeit a farm in Limpopo, arguing that it was bought using lottery funds misappropriated through a web of shell companies and proxies. The respondents pushed back, claiming that the Special Tribunal had no legal or constitutional power to order such forfeiture.
To assist the Tribunal, the Democratic Governance and Rights Unit (DGRU) was appointed amicus curiae. In its submission, the DGRU made a critical distinction: while the Tribunal does have the power to review and set aside unlawful contracts and public decisions under the SIU Act and Tribunal Rules, the power to order asset forfeiture lies with the High Court and the Asset Forfeiture Unit of the National Prosecuting Authority (NPA). Any attempt to exercise forfeiture powers outside this framework risks undermining constitutional and statutory safeguards.
Constitutional researcher Dan Mafora, in his article “Whose Jurisdiction Is It Anyway?“, goes even further. Mafora raises a principled concern: the Tribunal is not a court as defined in Chapter 8 of the Constitution and thus cannot exercise powers reserved for constitutionally recognised courts, especially the kind of final, binding remedial powers envisaged in section 172(1). He argues that allowing a statutory body like the Tribunal to hand down orders equivalent to a High Court risks eroding South Africa’s constitutional order. To protect legal coherence, Mafora insists that Parliament must expressly grant such powers, and that the distinction between tribunals and courts must be preserved.
While Mafora’s analysis highlights the risks of institutional overreach, the DGRU’s position offers a constructive path forward: reform the law to clarify and strengthen the Tribunal’s powers, rather than assume or expand them by inference. Both agree that clarity is needed, but diverge on whether the Tribunal should ultimately be entrusted with forfeiture powers. The DGRU believes these powers are currently not available, but that Parliament could and should legislate to provide them.
The Progress Report’s view
At The Progress Report, we recognise the Special Tribunal as a vital tool in South Africa’s anti-corruption arsenal. It was created to ensure that civil recovery of public funds can happen faster and more affordably than through ordinary court processes. But as this case reveals, its powers are neither settled nor sufficient for the task at hand.
If we want a system that truly holds wrongdoers accountable and returns stolen funds to the public, Parliament must act; strengthen the SIU Act, clarify the Tribunal’s powers, and ensure it can operate with full legitimacy and effectiveness. This is not a call to sidestep constitutional boundaries, it’s a call to update our legal framework so that it reflects the urgency of the fight against corruption.
We’ll continue to track this and other key cases at the Special Tribunal, because accountability shouldn’t be delayed by ambiguity.