The Special Tribunal: Fighting Corruption in South Africa
In a country struggling with corruption and misuse of funds, the Special Tribunal set up on October 1, 2019, is a key player in fighting economic crimes. This institution, though not a traditional court of law, is vested with powers that make it a formidable tool in recovering public funds lost to fraud, corruption, and illicit financial flows. The public must understand its purpose, the mechanisms by which it operates, and why its existence is a critical step towards ensuring accountability and justice.
What is the Special Tribunal?
The Special Tribunal was created under the Special Investigating Units (SIU) and Special Tribunals Act of 1996.
Section 2(1)(b) of the Special Investigating Units (SIU) and Special Tribunals Act empowers the President to establish one or more Special Tribunals by proclamation. These Tribunals are designed to adjudicate civil disputes arising from investigations conducted by the SIU. These investigations look into serious wrongdoings involving state institutions and public money.
Similarly, under section 2(1)(a)(i) of the SIU Act, the President can establish the SIU to investigate any matter within the President’s directive. Sections 2(3) and 2(4) of the Act provide the President with the authority to define and amend the terms of reference for both the SIU and the Special Tribunal as deemed necessary.
Key functions of the Special Tribunal
The Special Tribunal’s key functions include:
- adjudicating civil disputes arising from SIU investigations,
- issuing suspension orders,
- interlocutory orders, and interdicts,
- and enforcing rulings and issuing cost
How does the Special Tribunal work?
What sets the Special Tribunal apart from ordinary civil courts is its unique procedural approach. It operates with greater flexibility and expedience, characterised by its inquisitorial nature and extensive pre-trial investigations. This method contrasts sharply with the often-protracted procedures of traditional civil courts, allowing for swifter adjudication and resolution of cases.
The Tribunal focuses solely on recovering misappropriated funds and assets, while related criminal matters are referred to authorities like the Hawks and the Special Commercial Crimes Unit within the National Prosecuting Authority. This separation ensures thorough criminal prosecutions while the Tribunal addresses the civil repercussions of corruption.
The Special Investigating Unit (SIU)
The SIU is an independent statutory body established under the SIU and Special Tribunals Act of 1996. Its primary mandate is to investigate serious allegations of corruption, malpractice, and maladministration in state institutions, assets, and public money, and to recover financial losses through civil litigation.
Key powers of the SIU:
- Subpoena witnesses, bank statements, and cellphone records.
- Search and seize evidence.
- Interrogate witnesses under oath.
- Litigate on behalf of the State.
The SIU receives allegations through a whistle-blower hotline, directly from state institutions, or from whistle-blowers via walk-ins, telephone calls, or emails. Upon completing investigations, the SIU submits a final report to the President with an overview of the findings and recommendations.
SIU expertise:
- Forensic Investigation
- Civil Litigation
- Forensic Data Analytics
- Forensic Accounting
- Cyber Forensics
- Legal Services
The SIU aims to be the State’s preferred and trusted anti-corruption, forensic investigation, and litigation agency. Learn more.
How do the SIU and Special Tribunal work together?
The SIU investigates corruption and malpractice, and if it finds enough evidence, it takes the case to the Special Tribunal or a High Court. The Tribunal then handles the civil proceedings to recover misappropriated funds and assets.
Who sits on the Special Tribunal?
The composition of the Special Tribunal is detailed in Section 7 of the SIU Act. The President, after consulting with the Chief Justice, appoints the President of the Special Tribunal and additional members including judges, magistrates, attorneys, and advocates with at least seven years of experience. For example, in 2022, Judge Lebogang Modiba was appointed as the President of the Special Tribunal, however she resigned in May 2024. On 1 November 2024, President Cyril Ramaphosa appointed Judge Margaret Victor as the new President of the Special Tribunal, along with five additional judges, ensuring the Tribunal’s leadership and operations continue effectively.
Unique features of the Special Tribunal
- Speed and Flexibility: Works faster due to its flexible and inquisitorial approach.
- Focus: Solely focuses on recovering stolen public funds and assets.
- Separation of Civil and Criminal Matters: Refers criminal matters to authorities like the Hawks and the NPA.
Why is the Special Tribunal important?
The establishment of the Special Tribunal comes at a time when South Africa is grappling with widespread corruption and maladministration, highlighted by the revelations of the State Capture Commission. The Tribunal’s role in this context is indispensable. By providing a dedicated forum for the swift resolution of civil disputes arising from corruption, the Tribunal helps to ensure that public funds are recovered and redirected to their intended purposes.
The Special Tribunal is a vital instrument in South Africa’s arsenal against corruption. It represents a pragmatic and necessary response to the systemic issues that have plagued the nation’s public sector. While its status as a non-traditional court might raise questions, its effectiveness in dealing with civil matters of corruption is beyond dispute. The establishment of the Special Tribunal is a welcome and much-needed intervention, reflecting a commitment to upholding justice and financial integrity in the country.