1 November 2024
President Cyril Ramaphosa has appointed new judges to serve on the Special Tribunal, months after it effectively collapsed following the resignation several months ago of its head, Judge Lebogang Modiba. Photo: Brian Turner via Flickr (CC BY 2.0)
President Cyril Ramaphosa has appointed new judges to serve on the Special Tribunal, months after it effectively collapsed following the resignation several months ago of its head, Judge Lebogang Modiba.
The lack of Tribunal judges to hear new corruption matters lodged by the Special Investigating Unit (SIU) with the Tribunal has resulted in a large backlog.
The Tribunal is central to the work of the SIU and was established to ensure the unit could swiftly apply for preservation orders without having to navigate busy court rolls to get matters before the High Court.
Modiba handed in her resignation, which was effective from the end of June, at the end of March. At the time, she was carrying the majority of the Tribunal’s caseload.
Before leaving office, Modiba wrote to former justice minister Ronald Lamola to express several concerns about the Tribunal, including the lack of active judges at the time, the status of the Tribunal in light of a Constitutional Court judgment that it was technically not a court, and her personal workload. She also had a difficult relationship with the Department of Justice, under which the Tribunal falls, several sources told GroundUp at the time of her resignation.
President Ramaphosa’s spokesperson, Vincent Magwenya, confirmed at the beginning of August that the President had received a list from the Department of Justice of proposed judges to serve on the Tribunal and said the “appointments will be made as soon as possible so that the Tribunal can proceed with its work”.
It is unclear why it took almost three months to make the appointments.
In a statement yesterday, Magwenya said: “President Cyril Ramaphosa has appointed the Tribunal President and Judges of the Special Tribunal which has a statutory mandate to recover public funds syphoned from the fiscus through corruption, fraud and illicit money flows.” The appointments were made in consultation with Chief Justice Mandisa Maya, he said.
Retired judge Margaret Victor has been appointed president of the Tribunal, according to the 1 November media release by the Presidency. Also appointed to the Tribunal are 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 appointments are for three years.
Besides adjudicating Tribunal matters, these judges also hear matters on the rolls of their respective High Court divisions. But because she is retired, Judge Victor, unlike her predecessor, will be able to give the Tribunal her full attention, GroundUp was told.
Established in 2019 to hear applications by the SIU to freeze and confiscate the proceeds of corruption, including money, properties, vehicles and other assets, the Tribunal is one of the most effective weapons in the government’s anti-corruption arsenal.
Without a functional Tribunal, the SIU was forced to turn to the High Court to seek preservation orders in some matters. Nevertheless, a backlog of completed SIU investigations into corruption has built up following the virtual collapse of the Tribunal.
Modiba had personally heard about three-quarters of all matters brought before the Tribunal during its five years of existence. She handled the majority of the matters the Tribunal heard in 2024, with the other judges largely inactive.
GroundUp previously reported that Modiba, a judge in the Gauteng High Court and also in the Electoral Court resigned because of her heavy caseload, as well as “lack of support” from the Department of Justice, under which the Tribunal falls.
The Tribunal has heard no new cases since May, although several outstanding judgments have been delivered since then, the last one in August this year.
“This is very good news, as we have a lot of cases that we have already taken to the Tribunal that can now be allocated to the new judges,” said SIU spokesperson Kaizer Kganyago.
Matters already lodged with the Tribunal include several cases involving lottery corruption, he said.
Jodi Scholtz, the Commissioner of the Lotteries Commission, which has been working closely with the SIU and has also handed over several alleged corruption matters to the unit for investigation, welcomed the appointment of the judges. “That’s good news,” she told GroundUp.
Judges Matter legal researcher Mbekezeli Benjamin welcomed Judge Victor’s appointment and said: “We hope that this will revitalise the crucial anti-corruption work that the Special Tribunal has undertaken over the last five years, and which ground to a halt months ago.”
“However, some of the underlying causes of the collapse of the Special Tribunal related to the insufficient capacity and institutional support provided by the Department of Justice. With the Special Tribunal still wholly reliant on the department, and without any institutional or functional independence, we still fear this risk of collapse,” he said.
The three-year appointment [of the judges] posed “challenges of institutional independence and continuity of the Special Tribunal”, he said.
“A hallmark of judicial independence is security of tenure. If a president has free reign to establish or disestablish an adjudicative body dealing with corruption, fraud and maladministration that might implicate his allies, it runs the risk of undermining the independence of such body.”
“While most of the new members are senior, experienced High Court judges, most of the Special Tribunal’s cases are in the complex field of public procurement, which mixes administrative law, contract law, commercial law and constitutional law.
“Three years is too short a term for them to build the necessary expertise in this niche area and coherence around key principles. Again, this raises the urgent need for full reform of the legislation governing the Special Tribunal, and perhaps a need to establish this civil asset recovery function as a core division of the mainstream High Court.”
Benjamin said there were “compelling reasons” why the Special Tribunal’s civil asset recovery function should be relocated as a permanent feature of the mainstream High Court.
“These reasons include building capacity and expertise, efficient use of scarce judicial resources, and permanency and independence, among others. High Court judges routinely adjudicate public procurement cases, and it would be tapping into existing expertise if the Special Tribunal’s function is migrated to the High Court. It would also allow additional capacity to be built, as more judges could swiftly be rotated in, depending on the needs of the Tribunal at that time.”