President Cyril Ramaphosa. Picture: GCIS
President Cyril Ramaphosa. Picture: GCIS

President Cyril Ramaphosa has established a special tribunal to fast-track the finalisation of more than R7bn in civil claims linked to corrupt or irregular state contracts, and ensure that looted taxpayers’ money is returned to the state.

The tribunal’s work will start once the rules of court have been published.

Ramaphosa’s decision, using the powers given to him by
the Special Investigating Units and Special Tribunals Act, comes after the Special Investigating Unit (SIU) in 2018 only managed to recover R34m in cash unlawfully spent by the state. This is while the SIU has been fighting in several courts to get back the billions wasted on allegedly invalid government contracts.

"Fast-tracking these matters through the special tribunal will enable the SIU to recover monies and/or assets lost by state institutions through irregular and corrupt means; thus ensuring that those who are responsible for the loss of monies and/or assets by state institutions are held accountable," presidency spokesperson Khusela Diko said in a statement on Sunday.

"The litigation process includes both public and private sector persons and entities."

The tribunal will sit in Johannesburg over the next three years and will be headed by Judge Gidfonia Mlindelwa Makhanya. Additional members are judges Icantharuby Pillay, Johannes Eksteen, Selewe Peter Mothle, Lebogang Modiba, Thina Siwendu, David van Zyl and Sirajudien Desai.

It will operate like a high court, but with its own case management system, rules of court and administration.

The tribunal will apply for matters that are pending in other courts to be transferred to it, and its judgments can be appealed against at the high court.

While the SIU can initiate court proceedings to cancel invalid contracts and recover the money spent on them, it is limited to only making recommendations on the action to take over allegedly illegal deals on those that it is investigating.

It has no power to order what action must be taken. In this respect, the SIU has less power than the public protector, who routinely refers certain cases to it for investigation.

The SIU’s struggle to recover money has to do not only with the normal pace of court litigation to declare certain state contracts illegal, but also difficulties in ensuring that the departments involved act on its recommendations with regard to unlawful deals.

The SIU’s annual report, released in October 2018, identifies "non-implementation of SIU remedial action" as
the unit’s single biggest strategic risk.

It is understood that certain departments have routinely failed to act on recommendations that they recover money allegedly illegally spent by government officials.

"There were a number of matters where potential recoveries were identified which we had hoped would be recovered during this financial year," the SIU said in its report.

The only person who can force those departments to comply with the SIU’s recommendations is the president,
as government ministers report to him.

It would now appear that Ramaphosa’s new tribunal aims to deal with this type of resistance, and potentially puts state officials in line for huge civil claims against them in their personal capacity.

The SIU achieved multiple successes in 2018, including preventing the loss of R407m in dodgy transactions involving the SA Post Office and the departments of public works and correctional services.

It also had three state contracts, totalling R797m, declared invalid and set aside in the past financial year.