By Selby Makgotho
Eighteen months into its establishment to fast track cases of malfeasance, fraud and corruption arising out of the investigations by the Special Investigating Unit (SIU), the Special Tribunal has been hard at work to discharge on its statutory mandate.
The Special Tribunal idea was first mooted 20 years ago when the Parliament enacted the SIU and the Special Tribunals Act 74 of 1996 to recover the monies largely identified as from the proceeds of unlawful activities which result in the bleeding and bankruptcy of the State.
It was only 19 years later in 2019 that President Cyril Ramaphosa resuscitated the Special Tribunal on a three-year trial and publicly committed it to recover an estimated amount of R14.9-billion lost to corruption over the past years.
Ramaphosa identified eight High Court Judges drawn from the different Provincial Divisions across the country to execute this task for the country.
The statutory mandate of the Special Tribunal is to institute civil recovery proceedings on matters investigated by the SIU and make appropriate orders as deemed fit to recover the evidence. The proceedings before the Special Tribunal are mainly civil in character and the proceedings follow the same route as those in the High Courts.
Two principles apply: the weight of the evidence on record and the balance of probabilities for a fair and equitable order to be granted.
The Special Tribunal provides expeditious litigation. It is common cause that before the establishment of the Special Tribunal, the SIU would queue in the High Courts like any other litigant and matters took up to several years before conclusion. This is not the case with the Special Tribunal. There are about 60 matters in the High Courts that have been filed as early as 2013 and have not been finalised.
The Nkandla swimming pool matter where the R155-million is alleged to have been unlawfully spent is one such example. It has been moving forward and backward in the Pietermaritzburg High Court since 2014.
Entered the Special Tribunal, the matter is nearing completion with the trial dates set for September 27 to October 1 2021. Attempts to transfer all the previous cases that are currently in the High Courts to the Special Tribunal for speedy conclusion have been met with cold feet, mainly by the respondents.
As soon as the SIU approaches the Special Tribunal the matter is immediately allocated to a Judge for case management. This entails a pre-trial procedure where the parties (applicants and respondents) are called together to eliminate all the possible and anticipated delays so that once it is set down for hearing, all are ready.
It was not long that the Special Tribunal was established that the Covid-19 hit South Africa. This was a test and defining moment for the Special Tribunal. While there was no hint of the pandemic when the Special Tribunal was promulgated it, however, found itself at the centre stage having to grant orders and freezing bank accounts in an effort to stop the involved Government officials from engaging in alleged corrupt practices.
First on its list of Covid-19 related orders was the controversial R139m Personal Procurement Equipments (PPEs) involving the Department of Health in the Gauteng Province. It was the Special Tribunal that interdicted the rolling out of the tender and to recover the monies already paid into the bank accounts of the various beneficiaries.
The further blow-by-blow account of who authorized the transactions are expected to be unveiled when the former Chief Financial Officer, Kabelo Lehloenya, goes on trial before the Special Tribunal from August 16 until the 20th.
Summonses have also been issued against the former Head of Department, Mkhululi Lukhele, who too, is expected to provide answers on his alleged involvement in the saga.
The R40m Beit Bridge Border Post Fence involving the Department of Public Works is also a case in point as to the strength of the Special Tribunal. At first, the respondents, namely Caledon River Properties (CC) trading as Magwa Construction and ProfTeam CC, argued unsuccessfully against the jurisdiction of the Special Tribunal to adjudicate on the dispute citing constitutional incapacity (of the Special Tribunal).
The application was dismissed and the matter is set down for trial from October a until 8th. Of the R40m, an amount of R21.8m was interdicted and the Department stopped from further rolling out the contract pending the finalization of the civil recovery proceedings. In dismissing the plea of lack of jurisdiction, Judge Lebogang Modiba emphatically stated that there should never be any confusion on the legal effects of the orders of the Special Tribunal as it forms an essential matrix of the country’s jurisprudence with equal powers to those of the High Courts.
At the moment, the Special Tribunal is ceased with the R431m decontamination tender by the Department of Education in Gauteng. Based on the evidence on record before the Special Tribunal, the cumulative amount of R60m has been interdicted and ordered to be recovered as it is alleged to have been made without following constitutional and legislative prescripts governing procurement in public institutions. It should however be understood that the Special Tribunal grants orders and it is up to the SIU to enforce the orders.
The most recent and widely publicised R150m Digital Vibes is before the Special Tribunal. As matters stand, the SIU has been granted an order to freeze the bank accounts of the various beneficiaries based on the evidence they have and presented to the conviction of the Special Tribunal. It is expected that within the next few weeks the SIU will come back with an application to review and set aside the contract.
*Advocate Selby Makgotho is the spokesperson of the Special Tribunal.
**The views expresses here are not necessarily of IOL.
IOL