OPINION: Litigated parties are increasingly putting a spoke in the wheels of justice where the civil recovery proceedings have commenced to recover the stolen monies.
By Advocate Selby Makgotho
Dubiously awarded state contracts worth more than R300 million have been declared unlawful, irregular, and awarded in contravention of the Constitution and legislative means, bringing to a total of just over R9 billion monetary value of recoveries from corrupt public officials.
The Special Tribunal is continuing to make significant strides in the fight against malfeasance executed by public officials through private companies controlled by friends and cronies and procuring at exorbitant and inflated prices or against the law.
While at it, litigated parties are increasingly putting a spoke in the wheels of justice where the civil recovery proceedings have commenced to recover the stolen monies.
The jurisdiction of the Special Tribunal to adjudicate upon civil proceedings in the context of Section 172 of the Constitution is under attack. A number of pursued respondents before the Special Tribunal have consistently maintained that the Special Tribunal is not a court of law and as such have not constitutionally recognised jurisdiction to declare certain orders which is the exclusive terrain of the courts recognised in terms of Section 166 of the Constitution. It is common cause that the Special Tribunal has been repeatedly invited to grant orders suspending and setting aside the multimillion-rand contracts granted in disregard to the constitutional principles of fairness, equitability, transparency, competitiveness and cost-effectiveness as regulated by Section 217.
The jurisdiction of the Special Tribunal on the declarations of constitutional invalidity of contracts is increasingly been questioned and the litigated respondents reluctantly appear before the Special Tribunal.
The Special Tribunal held in the case of SIU v Caledon River Properties t/a Magwa Construction that is a court of law recognised under Section 166 of the Constitution and as such forms an integral part of the judicial matrix in our country’s jurisprudence. Ledla Structural Development (Pty) Ltd raises this constitutional point in the leave to appeal in its Constitutional Court submissions. Ledla, the first respondent in the review and setting aside of the R139 million contract awarded by the Gauteng Department of Health, questions the legal standing and effects of the Special Tribunal in the country’s jurisprudence. The matter is currently before the Constitutional Court and the decision on this important aspect will be made in due course. The clarity by the Constitutional Court will provide the much-needed clarity.
Amid the challenge, the Special Tribunal continues to discharge its judicial obligations of correcting the defects and decisions adversarial to the public funds. Another perception that exists that the Special Tribunal is for the Special Investigating Unit (SIU) and only rules in favour of the unit is not true. While established in terms of the same Act, the SIU and the Special Tribunals Act 74 of 1996, the two are independent of one another and render completely different functions. The SIU performs an investigative responsibility upon being granted Proclamation to do so by the President of the Republic and the Special Tribunal performs a judicial function guided primarily by the interests of justice, weight of evidence and balance of probabilities as in any other civil proceedings.
Last week, the Special Tribunal granted an urgent ex parte application in the matter of SIU v Alfred Nevhutanda and Others, the former chairperson of the National Lotteries Commission Board, and preserved the R27 million worth house as well as other assets pending the institution and finalisation of the review application expected within the next 60 days. Mr Nevhutanda and a few other respondents are alleged to have committed a series of irregularities that saw the commission bleeding financially to the ground.
Hamilton Ndlovu, who rose to notoriety following his social media postings with the parading of the luxuriously, yet costly, vehicles was before the Special Tribunal during this term. In SIU and Another v Hamilton Ndlovu and Others, the Special Tribunal found Mr Ndlovu to have unlawfully benefited from the R172 million personal protective equipment (PPE) contracts in the wake of the Covid-19 pandemic.
Of the R172 million, the evidence pointing to the alleged irregularities was R158 million which he was declared to repay and forfeit some assets to the State. These include the luxury vehicles, monies held in various bank and investment accounts, as well as those in possession and control of his business associates.
Mr Ndlovu has filed an application for leave to appeal the judgment, shouting on paper that the Special Tribunal misdirected itself when making the decision. He, too, questioned the Special Tribunal’s authority to order him to repay the money. The way forward on the Ndlovu appeal matter will be determined after the July 15, 2022 once he, and the SIU, have filed their heads of argument. The PPE procurement irregularities remain at the centre stage as the recovery efforts are intensified.
In SIU v Zakheni Strategic Supplies (Pty) Ltd and Another, the R103 million contract awarded by the Gauteng Department of Health was reviewed and set aside due to procurement irregularities. Another adverse finding was made earlier in SIU v Phathilizwi and Another. In this case, officials of the OR Tambo District Municipality and the service provider cited as Phathilizwi connived to siphon funds and secretly created an emergency procurement in the form of a Communication Strategy to fight the Covid-19 pandemic among rural communities. The court found that the document only existed on paper and no communication campaign was held that warranted the release of funds to the tune of R4.5 million. The fictitious invoices billed to the municipality were subsequently cancelled.
The five proposed respondents in the joinder application in the case of SIU v Digital Vibes have sought leave to appeal the judgment that joined them to be part of the review application in the R150 million contract awarded by the National Department of Health. Judgment in this interlocutory application will be handed down in the coming weeks and will further determine the conduct of the proceedings in the main application.
*Advocate Selby Makgotho is the Spokesperson of the Special Tribunal and a PhD candidate in Public International Law with the University of South Africa.