The Special Tribunal has no active judges and has not issued a ruling since May
16 July 2024 - 09:31
byRaymond Joseph
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The presidency and the department of justice are scrambling to resuscitate theSpecial Tribunal, which has effectively collapsed following the resignation of its head, judge Lebogang Modiba.
Apart from Modiba’s departure, another Tribunal judge has retired and four others have been inactive for most of 2024.
Yet action is only now being taken to appoint a new head of the Tribunal, as well as new judges. This comes three-and-half months after Modiba handed in her resignation at the end of March — which was effective from the end of June.
One of themost effective weaponsin the government’s anti-corruption arsenal, the Tribunal was established in 2019 to hear applications by the Special Investigating Unit (SIU) to freeze and confiscate the proceeds of corruption, including money, properties and vehicles.
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.
President Cyril Ramaphosaestimatedthat by March 2022, the value of civil litigation to recover money lost to corruption referred to the Special Tribunal and High Courts “amounted to R75bn”.
In his February 2023 statement, Ramaphosa said the amount was “roughly equivalent to what was budgeted for the child support grant this year.”
GroundUp understands that the SIU has several high-profile matters, including cases involving lottery corruption, ready to take to the Tribunal. But it has held back because of the lack of capacity to hear them.
The SIU was guarded in responding to a query about how the serious issues facing the Tribunal would affect the unit.
In a one-paragraph response, SIU spokesperson Kaizer Kganyago said: “We have engaged the department of justice about this matter as it has the potential of impacting on our work as the SIU.”
A founding member of the Tribunal, Modiba has also been its driving force since being appointed its President in 2022, handling case management and juggling judges to hear matters. She is also a judge in the Gauteng High Court and in the Electoral Court.
Modiba has personally heard 78 out of 107of all mattersbrought before the Tribunal during its five years of existence. Of the Tribunal’s seven judgments so far in 2024, Modiba hashandledsix.
The Special Tribunal falls under the department of justice but, operationally, the justice department funds its day-to-day operations. Tribunal staff are department of justice employees, and its websiteis hostedon the department’s website.
GroundUp was told that Modiba sent her letter of resignation directly to (then) justice minister Ronald Lamola in March, giving a full term’s notice of her resignation. It is unclear what he did about it.
What is clear is that the department was caught by surprise when they learnt only at the end of June that Modiba had resigned. This was three months after she had tendered her resignation.
The department only briefed the department of justice a week later.
“Someone in the [former] minister’s office [Ronald Lamola] dropped the ball badly on this,” a source told GroundUp.
“The department was informed at the end of June 2024 (when she left office) of the resignation of Special Tribunal President Modiba and processes have been under way to capacitate the Special Tribunal,” Tsekiso Machike, spokesperson for the justice department said.
“In this regard, a memorandum on the recommendation of the appointment of Special Tribunal President and members is being processed to the minister for approval and with subsequent submission to the president for consultation with the chief justice, whereafter the president will make an appointment.”
The ministry only learnt of Modiba’s resignation a week later, according to Machike.
“The ministry was briefed on Monday, 8 July about the capacity challenges for the Special Tribunal and the ministry was informed that processes are under way to address same,” he said.
“This includes the appointment of four members of the Special Tribunal, including the President of the Tribunal.”
A meeting between the deputy director-general of court administration, and the head of SIU is scheduled for July 31 to discuss the Tribunal and matters ready for hearing, he said.
Justice department spokesperson Kgalalelo Masibi referred questions to the SIU’s Kganyago.
There is widespread speculation over why Modiba, quit. GroundUp was told it was partially the result of frustration at a lack of resources and support from the department of justice.
Several sources also pointed to allegations that Modiba had tried to influence theappointment of a registrarin her office, which was leaked to the media.
Another issue that affected the Tribunal was aConstitutional Court judgmentthat it was technically not a court but had the power to “adjudicate legality reviews”.
Tribunal judges serve in different High Court divisions and are not paid extra for their Tribunal services, which is seen as a prestigious judicial appointment.
“It was the beginning of the end for the Special Tribunal because for the judges it did not have the status of higher courts and fewer and fewer judges put up their hands to get involved,” a source said.
This is not the first time that staffing issues at the Tribunal have affected the fight against corruption. In 2022, GroundUp reportedhow for almost two months — from March 4 to May 1 — the Tribunal couldn’t hear new cases because the three-year contracts of the judges had expired and President Cyril Ramaphosa had not renewed them.
The president, in consultation with the chief justice, is responsible for the appointment of Tribunal judges in terms of theSIU and Special Tribunals Act. He also hasdiscretionas to the length of Tribunal judges’ contracts.
Support our award-winning journalism. The Premium package (digital only) is R30 for the first month and thereafter you pay R129 p/m now ad-free for all subscribers.
Ronald Lamola let anti-corruption body collapse
The Special Tribunal has no active judges and has not issued a ruling since May
The presidency and the department of justice are scrambling to resuscitate the Special Tribunal, which has effectively collapsed following the resignation of its head, judge Lebogang Modiba.
Apart from Modiba’s departure, another Tribunal judge has retired and four others have been inactive for most of 2024.
Yet action is only now being taken to appoint a new head of the Tribunal, as well as new judges. This comes three-and-half months after Modiba handed in her resignation at the end of March — which was effective from the end of June.
One of the most effective weapons in the government’s anti-corruption arsenal, the Tribunal was established in 2019 to hear applications by the Special Investigating Unit (SIU) to freeze and confiscate the proceeds of corruption, including money, properties and vehicles.
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.
President Cyril Ramaphosa estimated that by March 2022, the value of civil litigation to recover money lost to corruption referred to the Special Tribunal and High Courts “amounted to R75bn”.
In his February 2023 statement, Ramaphosa said the amount was “roughly equivalent to what was budgeted for the child support grant this year.”
GroundUp understands that the SIU has several high-profile matters, including cases involving lottery corruption, ready to take to the Tribunal. But it has held back because of the lack of capacity to hear them.
The SIU was guarded in responding to a query about how the serious issues facing the Tribunal would affect the unit.
In a one-paragraph response, SIU spokesperson Kaizer Kganyago said: “We have engaged the department of justice about this matter as it has the potential of impacting on our work as the SIU.”
A founding member of the Tribunal, Modiba has also been its driving force since being appointed its President in 2022, handling case management and juggling judges to hear matters. She is also a judge in the Gauteng High Court and in the Electoral Court.
Modiba has personally heard 78 out of 107 of all matters brought before the Tribunal during its five years of existence. Of the Tribunal’s seven judgments so far in 2024, Modiba has handled six.
The Special Tribunal falls under the department of justice but, operationally, the justice department funds its day-to-day operations. Tribunal staff are department of justice employees, and its website is hosted on the department’s website.
GroundUp was told that Modiba sent her letter of resignation directly to (then) justice minister Ronald Lamola in March, giving a full term’s notice of her resignation. It is unclear what he did about it.
What is clear is that the department was caught by surprise when they learnt only at the end of June that Modiba had resigned. This was three months after she had tendered her resignation.
The department only briefed the department of justice a week later.
“Someone in the [former] minister’s office [Ronald Lamola] dropped the ball badly on this,” a source told GroundUp.
“The department was informed at the end of June 2024 (when she left office) of the resignation of Special Tribunal President Modiba and processes have been under way to capacitate the Special Tribunal,” Tsekiso Machike, spokesperson for the justice department said.
“In this regard, a memorandum on the recommendation of the appointment of Special Tribunal President and members is being processed to the minister for approval and with subsequent submission to the president for consultation with the chief justice, whereafter the president will make an appointment.”
The ministry only learnt of Modiba’s resignation a week later, according to Machike.
“The ministry was briefed on Monday, 8 July about the capacity challenges for the Special Tribunal and the ministry was informed that processes are under way to address same,” he said.
“This includes the appointment of four members of the Special Tribunal, including the President of the Tribunal.”
A meeting between the deputy director-general of court administration, and the head of SIU is scheduled for July 31 to discuss the Tribunal and matters ready for hearing, he said.
Justice department spokesperson Kgalalelo Masibi referred questions to the SIU’s Kganyago.
There is widespread speculation over why Modiba, quit. GroundUp was told it was partially the result of frustration at a lack of resources and support from the department of justice.
Several sources also pointed to allegations that Modiba had tried to influence the appointment of a registrar in her office, which was leaked to the media.
Another issue that affected the Tribunal was a Constitutional Court judgment that it was technically not a court but had the power to “adjudicate legality reviews”.
Tribunal judges serve in different High Court divisions and are not paid extra for their Tribunal services, which is seen as a prestigious judicial appointment.
“It was the beginning of the end for the Special Tribunal because for the judges it did not have the status of higher courts and fewer and fewer judges put up their hands to get involved,” a source said.
This is not the first time that staffing issues at the Tribunal have affected the fight against corruption. In 2022, GroundUp reported how for almost two months — from March 4 to May 1 — the Tribunal couldn’t hear new cases because the three-year contracts of the judges had expired and President Cyril Ramaphosa had not renewed them.
The president, in consultation with the chief justice, is responsible for the appointment of Tribunal judges in terms of the SIU and Special Tribunals Act. He also has discretion as to the length of Tribunal judges’ contracts.
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