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To avoid allegations of ‘capture’, the Special Tribunal should be under the Chief Justice

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

If we truly subscribe to the constitutional provision that in South Africa the judicial authority of the Republic lies with the courts through the Office of the Chief Justice, why then is the Special Tribunal located within the Department of Justice?

One of the purposes of the Special Investigating Units (SIU) and Special Tribunals Act 74 of 1999 is to “provide for the establishment of Special Tribunals so as to adjudicate upon civil matters emanating from investigations by SIUs”.  Based on this act,  President Cyril Ramaphosa introduced the Special Tribunal. 

The act is also the basis for the establishment of SIUs for the purpose of investigating “serious malpractices or maladministration in connection with the administration of state institutions, state assets and public money as well as any conduct which may seriously harm the interests of the public”.

The tribunal is one of the latest additions to the mushrooming measures designed to help in the upholding of the rule of law and cleansing the criminal justice system of the malaise and criminality the country is experiencing. Among the latest of its high profile cases, we have seen the tribunal having to tackle cases involving the MEC for the Free State Department of Treasury and others (FS01/2020) 31 January 2022 and Digital Vibes (Pty) Ltd and others (KN 03/2021) 17 June 2021.

Indeed, the maximum impact of the tribunal is gradually being witnessed. Spokesperson for the tribunal, Advocate Selby Makgotho, has written an opinion detailing some successes of the tribunal. Makgotho praises its efficiency, arguing that it “has helped in the turn-around time for the recovery of the monies lost to the State”.

He notes that, in its three-year existence, it has recovered amounts totalling R8.6-billion which had been lost to unscrupulous officials failing in their duties, not following applicable state contracting rules and regulation of contracts, and being involved in other unlawful and corrupt practices. Kudos to the Special Tribunal, it would seem from the report by Makgotho that it is having some impact and major successes.

One of the challenges the tribunal has had to deal with is whether it is a court in a true sense as envisaged in section 166(e) of the Constitution, as in the 2021 case of Special Investigating Unit and Another v Caledon River Properties (Pty) Ltd t/a Magwa Construction and Another. The Special Tribunal made it clear that it is part of the court system itself: “It is part of the matrix of courts that are recognised in terms of the Constitution and the Superior Courts Act,” held the Tribunal. 

Reference is made to section 170 of the Constitution that, in the words of the Special Tribunal, “specifically demarcates the constitutional jurisdiction of ‘other Courts’ referred to in s166(e).” The tribunal further made reference to section 172(1) of the Constitution recognising “the constitutional jurisdiction of courts when acting ‘within their power’… the Tribunal consists of a Judge and has in general terms the powers of the high court in relation to matters falling within its terms of reference (ss7,8,9). Appeals lie against a judgment of the tribunal to the Full Court or to this Court.”

Section 165(2) of the Constitution provides that “the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.” In this opinion, I would like to question the independence of the Special Tribunal and not its constitutionality or the constitutionality of the Act that established it. The latter is for later discussions.

The good work that the tribunal is doing, as reported by Makgotho, must be appreciated. However, several questions may be lingering around its independence. I am indebted to the 2018 decision of the European Court of Justice (ECJ) in Case C-64/16, Associação Sindical dos Juízes Portugueses v. Tribunal de Contas, ECLI:EU:C:2018:117 (Feb. 27, 2018), which held that  judicial independence is “essential” to this cooperative system. The ECJ explained the concept of judicial independence as follows:

“The concept of independence presupposes, in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions. [at Para:44]”

In light of the foregoing discussion, can it be said that the Special Tribunal is truly clothed in judicial independence as other judicial bodies in a manner envisaged by the Constitution? The Special Tribunal takes a view that it is independent and impartial in the same manner as other courts. It has argued this point as follows:

“The Special Tribunal bears the hallmarks of a court endowed with judicial authority as envisaged in s165 of the Constitution. S165 of the Constitution determines what a court is. It is an institution vested with judicial authority. Courts function independently, subject only to the Constitution and the law which they apply impartially and without fear, favour or prejudice. Interference with the functioning of courts is prohibited.

“S8(1) provides for the independence of the Special Tribunal, as well as the performance of its functions impartially and without fear, favour or prejudice, subject only to the law and the Constitution.”

Back to the question: how judicially independent is the Special Tribunal from the Department of Justice (DoJ)? Put differently, is the tribunal truly free from the executive and legislative branches of government directly or systematically interfering in its composition, powers, administration and functioning as part of the judicial branch?

This is a question that must be addressed once and for all because with the issue remaining undetermined by the Constitutional Court, its legitimacy from the point of independence will at some point become a serious issue. Interestingly, in some of the headline-making cases such as that of former president Jacob Zuma in the Pietermaritzburg high court, strong arguments are made condemning lack of impartiality and questionable judicial independence. 

If we truly subscribe to the constitutional provision that in South Africa, the judicial authority of the Republic lies with the courts through the Office of the Chief Justice (OCJ) heading the judiciary, why then is the Special Tribunal located within the DoJ?

Admittedly, the judges sitting on the bench of the Special Tribunal are employees of the Office of the Chief Justice. However, when they adjudicate Special Tribunal matters they become employees of the DoJ. Having the Special Tribunal housed within the apparatus of the Ministry of Justice and Constitutional Development may at some point be considered a red flag for questionable independence of the tribunal.

The facilities and personnel utilised by the Special Tribunal are that of the department. With tongue in cheek, the judges of the Special Tribunal with the current arrangement are like borrowed guns for the DoJ to collect illegal proceeds on behalf of the Executive. Locating the Tribunal in the DoJ instead of the OCJ on the face of it contradicts the common understanding of judicial independence and traits of such independence.

The judges are available to the Special Tribunal on a term basis. The Special Tribunal is fully funded by the DoJ. The prevailing circumstances are, in my view and standing to be corrected, antithetical to judicial independence from the Executive. As such, it can be argued that the tribunal is not truly independent from the executive and legislative branches of government.

The state president must consider relocating the tribunal to be under the OCJ, away from the DoJ, because the appearance may be that the DoJ had effectively taken control of the management of the tribunal and that the tribunal is not independent from the Executive. Perhaps any further proclamation by the president on the tribunal must de-link it from the DoJ.

Following his appointment as Chief Justice, Justice Raymond Zondo has strongly expressed that during his tenure he will prioritise judicial independence. The current setup of the tribunal is concerning in that it may fuel concerns and allegations that the judiciary is captured.

“It is not in the interests of anybody who loves this country to portray the judiciary as captured. If anybody has any evidence… they must come forward,” said Judge Zondo. DM

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