by Josefa Dengler: Intern, Centre for Constitutional Rights – 17 September 2019
On 9 July 2019, Advocate Andy Mothibi, head of the Special Investigating Unit (SIU), announced the establishment of a Special Tribunal by October 2019. The Tribunal’s purpose is to recoup money looted from the State, opening yet another chapter in South Africa’s fight against State capture and corruption.
Estimates on the amount of monies lost through corruption amount to R1.5 trillion over the past four years alone, according to media reports. Despite the many anti-corruption mechanisms in place already, recovery of the monies lost has proven extremely difficult. The recovery of small sums, if compared to the total sums lost, already appears as a cause for celebration. Just recently, for example, Justice Minister Ronald Lamola announced that the National Prosecuting Authority’s Asset Forfeiture Unit (AFU) had recovered R115.9 million in terms of the Prevention of Organised Crime Act during June and July of 2019. This includes State monies lost through fraud and corruption. In light of this situation, the Special Tribunal’s effectiveness in recovering State money will be key in determining how the government’s newest anti-corruption campaign will go down in history.
The establishment of the Special Tribunal is based on the Special Investigating Units and Special Tribunals Act (the Act). The Act empowers the President to establish Special Investigating Units (SIUs) to investigate serious malpractice or maladministration relating to State institutions, State assets and public money, as well as any conduct which may seriously harm the interests of the public. The current SIU was established in 2001 and, at present, is leading more than 50 investigations. However, there is concern with regard to the effectiveness of the SIU, which has been battling with a number of problems, including a lack of funding and a lack of transparency.
The Act also provides for the Special Tribunal. Its function is to adjudicate civil proceedings emanating from the investigations of a SIU. SIU investigations typically result in civil litigation if they lead to the finding that a government contract has to be set aside. The Special Tribunal’s function thus is a complementary one, enforcing the legal outcome of SIU investigations.
In July 2019, Advocate Mothibi announced that the Special Tribunal will have its seat at the South Gauteng High Court. It is chaired by High Court Judge Gidfonia Mlindelwa Makhanya, who functions as Tribunal President. Seven additional members are: Judges Kantharuby Pillay, Johannes Eksteen, Selewe Peter Mothle, Lebogang Modiba, Thina Siwendu, David van Zyl and Sirajudien Desai. The Tribunal is established for a period of three years and has jurisdiction to recover an estimated R14.7 billion. It has substantive powers to perform its task, such as the issuing of subpoenas, arrest warrants and detention orders. The Tribunal will adjudicate civil proceedings resulting from the Zondo Commission and other commissions, such as the Nugent Commission into SARS. This includes the ESKOM, Esidimeni and Bosasa cases, as well as litigation against former President Zuma’s architect, Minenhle Makhanya, in the controversial security upgrades of his Nkandla homestead.
The Nkandla lawsuit, in fact, may have sparked Mothibi’s announcement to establish the Special Tribunal. Although President Ramaphosa had already proclaimed the establishment of such a Tribunal in February 2019, and appointed its members in March of 2019, the project hereafter seemed to have disappeared into oblivion. The renewed efforts – in July 2019 – to establish the Tribunal came just after the delay of the trial date in the Nkandla case. In 2014, the SIU brought a civil action against former President Zuma’s architect Makhanya for authorising the controversial security renovations to the Nkandla homestead. The R155 million lawsuit has been dragging on ever since and is not expected to be resolved in the near future. In June 2019, Makhanya was given more time to prepare his defence, which implies that the trial will most likely not start before 2020.
In light of these recent events, the need to fast-track the recovery of State money seems greater than ever. There is concern, however, that the Special Tribunal may not be able to live up to these expectations and may, in fact, face problems similar to those of the SIU.
The lack of information on the Special Tribunal is the greatest problem, rendering it almost impossible to assess its effectiveness as an anti-corruption tool. Since President Ramaphosa announced its establishment in February 2019, very little information has been made available on the Tribunal. At a committee meeting on 9 July 2019, the Portfolio Committee on Justice and Correctional Services expressed their concern in this regard. Advocate Mothibi, however, failed to provide more substantive information on the functioning, funding and the specific cases the Tribunal will handle.
It thus remains unclear, amongst other things, whether the Special Tribunal will face the same funding issues as the SIU, which relies on SIU-invoiced services to State entities it has investigated for as much as 40% of its funding. On 9 July 2019, the outstanding sum owed to the SIU by State entities amounted to R493 million, leading to high vacancy rates and long investigation turnaround times. Similar issues would put an end to the Special Tribunal’s mission to speed up the recovery of State money lost through corruption. The funding structure may also affect the independence of anti-corruption bodies. The SIU itself has found that its funding model potentially poses a conflict of interest. The Act acknowledges the importance of independence and objectiveness for an anti-corruption mechanism, stipulating that the Special Tribunal must be “independent and impartial and perform its functions without fear, favour or prejudice and subject only to the Constitution and the law”. However, as long as the Tribunal’s funding structure is not clear, concern as to the independence of the Tribunal cannot be ruled out.
Progress, however, seems to have been made in the establishment of the Tribunal. According to recent media reports, Justice Minister Ronald Lamola confirmed that the Department of Justice has been working on setting up the body since its formal establishment in March. He is also quoted as saying that the regulations and rules of procedures for the Tribunal are being drafted, and that the Tribunal will come into effect once they have been passed.
In light of the open question as to the functioning and financing of the Tribunal, it remains to be seen whether the Special Tribunal will be an effective tool in fighting corruption or yet another institution to fight State capture that fails to live up to its expectations. It is hoped that the Tribunal will, in fact, be operational by October and resolve all doubts raised in this article.