The role of the Special Tribunal
In a country rife with corruption and fiscal mismanagement, the establishment of the Special Tribunal on October 1, 2019, is not merely a procedural formality but a necessary evolution in the fight against 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.
The genesis and purpose of the Special Tribunal
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. 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.
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.
The structure of 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. These members are selected from experienced judges, magistrates, attorneys, and advocates with at least seven years in the administration of justice. For instance, in 2024, following the effective collapse of the Tribunal as a result of the resignation of former President of the Tribunal, Judge Lebogang Modiba, due to various concerns and struggles regarding the status and capacity of the Tribunal, President Cyril Ramaphosa appointed retired Judge Margaret Victor as the new President of the Tribunal. Judge Victor was appointed alongside five additional judges, namely: Judge Thandi Victoria Norman of the Eastern Cape High Court; Judge David Makhoba of the Gauteng High Court; Judge Brian A. Mashile of the Mpumalanga High Court; Judge Andre Henry Petersen of the North West Division of the High Court; and Judge Chantel Moira Jennifer Fortuin of the Western Cape High Court. All of the appointments were for a three-year term.
Functions of the Special Tribunal
Section 8 of the Act outlines the functions of the Special Tribunal, which include adjudicating any civil proceedings brought by the SIU, either in its name or on behalf of a state institution or an interested party, as defined in the regulations stemming from SIU investigations. The tribunal’s powers are limited to issuing suspension orders, interlocutory orders, and interdicts upon application by the SIU or other interested parties. It can also make orders deemed necessary to enforce its rulings or appropriate cost orders.
The Special Tribunal’s procedural features
What sets the Special Tribunal apart from ordinary civil courts is its unique procedural approach. The Tribunal follows the same uniform rules of procedure as the High Court (although it has some rules uniquely applicable to it). Notably, the Tribunal operates with a greater degree of flexibility and expedience, characterized 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. This efficiency is vital in a country where delays in the justice system can often undermine the public’s faith in legal processes.
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 Tribunal is designed to manage civil proceedings exclusively, focusing on the recovery of misappropriated funds and assets. Criminal matters, although related, are referred to appropriate prosecuting authorities such as the Hawks and the Special Commercial Crimes Unit within the National Prosecuting Authority. This separation ensures that while the tribunal addresses the civil repercussions of corruption, criminal prosecutions are conducted with the thoroughness required for criminal law.
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
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. Moreover, the SIU reported in its 2023/2024 Annual Report that in the 2023/2024 financial year the Special Tribunal and High Court of South Africa had set aside contracts worth over R2.13 billion.
Is the Special Tribunal a court?
In Ledla Structural Development, Judge Mothle held that since the Special Tribunal is presided over by judges and has the power to issue binding orders, it functions like a civil court and is therefore a court. This view was supported by Judge Modiba, who stated that the Special Tribunal fits the description of a court as contemplated in Section 166(e) of the Constitution. Furthermore, Judge Modiba emphasized that the Tribunal is empowered to issue just and equitable relief under Section 172 of the Constitution, similar to the High Court with inherent jurisdiction derived from the Constitution.
The status of the Special Tribunal as a court and its powers to adjudicate reviews and issue forfeiture orders were scrutinized by the Constitutional Court. The Constitutional Court conducted a plain reading of Section 166(e) of the Constitution and concluded that this section does not apply to tribunals, and further analysed the constitution of the Special Tribunal and determined that its members are not always judges. The SIU Act grants the President the authority to appoint members and determine their tenure, which lacks the security of tenure enjoyed by judges. Based on this, the Constitutional Court ruled that the Special Tribunal is not a court.
Regarding the Tribunal’s competency to adjudicate reviews, the Constitutional Court referred to the Group Five judgment, which dealt with the review powers of the Competition Tribunal. In that case, the Court held that the Competition Tribunal and the Competition Appeal Court have exclusive jurisdiction over certain matters under Section 62(1) of the Competition Act, but not over those in Section 62(2), which fall under the Competition Appeal Court and the High Court. The power to conduct reviews under PAJA and legality reviews does not extend to the Competition Tribunal. However, the Constitutional Court found that the SIU Act does not similarly limit the Special Tribunal’s powers. Sections 8(2) and 4(1)(c) of the SIU Act and its preamble indicate that the legislature intended the Special Tribunal to have a broad scope for civil proceedings, including legality reviews.
The Court held that while the Special Tribunal is not a court, it does have the authority to adjudicate legality reviews. The question of whether the Tribunal can issue forfeiture orders was not addressed, as it was not within the scope of the application before the Court.
The need to properly capacitate the Special Tribunal
Currently, the Tribunal relies on judges drawn from other courts, which strains resources and delays case resolutions. The Tribunal has also historically suffered from insufficient capacity and institutional support from the Department of Justice, under which the Tribunal falls. The judges appointed to the Tribunal, in addition to adjudicating Tribunal matters, also hear matters on the rolls of their respective High Court divisions, if they are not retired. This drastically diminishes the capability of the judges to dedicate the necessary time to deal with Tribunal matters.
Providing the Tribunal with the necessary resources and institutional capacity would thus enable the judges appointed to sit at the Tribunal to deal more capably with Tribunal operations. This will further ensure that Tribunal matters are dealt with expeditiously and progress is made in tackling corruption.
There is also the need to ensure that the judges appointed to the Tribunal build the necessary expertise in the complex field of public procurement, which mixes administrative law, contract law, commercial law and constitutional law, so the implementation of policies to assist with the development of this expertise is necessary.