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If the creation of the president's special tribunal to recover monies lost to corruption passes constitutional muster, a host of questions still remain: Will ordinary high court procedure be followed, asks Serjeant at the Bar.
The recent announcement by President Cyril
Ramaphosa of the establishment of a Special Investigating Unit (SIU) Special Tribunal
to expedite hearings for cases designed to recover monies lost to the state
from corruption or irregular spending has raised the issue of the
constitutionality of this tribunal, the commendable motivation for its
For this reason it is necessary to review
the findings of the Constitutional Court in the case of South African
Association of Personal Lawyers v Heath. The case dealt with the legality of a SIU
headed by a judge, Willem Heath.
To show how little things have changed, in
an early passage of his judgment, Chief Justice Arthur Chaskalson, wrote thus: "Corruption
and maladministration are inconsistent with the rule of law and the fundamental
values of our Constitution. They undermine the constitutional commitment to
human dignity, the achievement of equality and the advancement of human rights
and freedoms. They are the antithesis of the open, accountable, democratic
government required by the Constitution."
The Heath case involved a judge who was
appointed as head of the SIU, a unit which investigated corruption, could refer
matters for prosecution and refer matters for civil claims to a special
tribunal which fell within the SIU. The question arose as to whether a sitting
judge could head such a unit.
The Chief Justice said the following: "Ultimately
the question is one calling for a judgement to be made as to whether or not the
functions that the judge is expected to perform are incompatible with the
judicial office, and if they are, whether there are countervailing factors that
suggest that the performance of such functions by a judge will not be harmful
to the institution of the judiciary, or materially breach the line that has to
be kept between the judiciary and the other branches of government in order to
maintain the independence of the judiciary. In making such judgement, the court
may have regard to the views of the legislature and executive, but ultimately,
the judgement is one that it must make itself."
In Heath the Constitutional Court found
that it was not legal for a judge to head a unit such as the SIU. The basis for
this conclusion is to be found in the following passage of the judgment of the chief
"They include not only the undertaking
of intrusive investigations, but litigating on behalf of the state to recover
losses that it has suffered as a result of corrupt or other unlawful practices.
Judges who perform functions such as presiding over a commission of inquiry, or
sanctioning search warrants, may also become involved in litigation. But that
is an unwanted though possibly unavoidable incident of the discharge of what
are essentially judicial functions. One of the purposes of the Act is to
provide special measures for the recovery of money lost by the state, and in the
case of the head of the SIU therefore, litigation on behalf of the state is an
essential part of the job.
"The functions a judge who heads the
SIU has to perform are all related to the purpose of recovering money for the
state, if necessary through litigation. By their very nature, such functions
are partisan. The judge cannot distance himself or herself from the actions of
the SIU's investigators. The evidence in this case provides illustrations of
partisan conduct on the part of investigators of the SIU, which are
inconsistent with the judicial office."
If President Ramaphosa's announcement means
that the tribunal will be separate from the SIU and will be headed by a judge, it
is possible to argue that this differs from the Heath case as the function of
the tribunal is not that of investigation nor collection of moneys for the
state but purely the adjudication of cases involving claims.
The problem might still arise that the tribunal
appears to be a part of the SIU and that the judges are appointed by the president
for fixed terms without any contribution from the Judicial Service Commission (JSC)
which makes the creation of such a tribunal even more problematic.
But, if the creation of the tribunal passes
constitutional muster, a host of questions still remain: Will ordinary high
court procedure be followed? Will the judges sit in panels or as single benches
and will the tribunal members now be permanently assigned to this body for the
full three years so that they are removed from their courts? How many cases are
But the larger question remains as to why
this is needed. Surely the large high courts could have been employed. The
respective judge presidents could have been asked to arrange expedited hearings
presided over by experienced commercially orientated judges (which should not
be interpreted to mean that the judges appointed to the tribunal are anything
other than competent to do this work save that they could do so within their
As the proposal stands it is likely that as
the stakes will be high, most decisions will be taken on review to the high court
which will subvert the aim of expedition. Sometimes the tried and tested way works
best: in this case the use of the high courts on the basis of expedited
- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.
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