DEPARTMENT OF JUSTICE ANO CONSTITUTIONAL OEVElOPMEHl"
SPECIAL TRIBUNAL
CNR AMANOAAVENUE & lllflf AANGt ROAD, OAKDEN£
~ir°'ah JJt of
C/A No: One
REGISTRAR
IN THE SPECIAL TRIBUNAL ESTABLISHED IN TERMS OF SECTION 2(1)
OF
THE SPECIAL INVESTIGATING UNIT AND
SPECIAL TRIBU NALS ACT 74 OF 1996
(REPUBLIC OF SOUTH AFRICA)
CASE NO.: GP09 /2019
In the matter between:
THE SPECIAL INVESTIGATING UNIT
THE MINISTER OF POLICE
THE MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES
And
KGOSISEPH UTHABATHO GUST AV LEKABE
Consolidated with:
CASE NO: GP22/2021
First Plaintiff
Second Plaintiff
Third Plaintiff
First Defendant
THE SPECIAL INVESTIGATING UNIT
THE MINISTER OF POLICE
THE MINISTER OF HEAL TH
THE MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES
And
HASSAN EBRAHIM KAJEE
JUDGMENT
Victor J
First Plaintiff
Second Plaintiff
Third Plaintiff
Fourth Plaintiff
Second Defendant
''There ca11 be no gainsayi11g that corruption threatens to fell a.I the knees virtually everything we hold
dear and precwus i11 our hard-won constit11tional order. It blatantly undermilles the democratic ethos,
the institutwns of democracy, the rule of law and tl,e fu11damental values of our nascent constitutio,ia/
project. It fuels mtlladministratw11 and public fraudulence aml imperils the capacity of the state to
fulfil its obligations to respect, protect, promote and fulfil all tlte rights enshrined ill the Bill of Rights.
When corruption and organized crime flourish, sustainable development a11d eco11omic growtlt are
stunted. A11d in tum, the stability a11d security of society is put at risk." 1
Introduction
[ 1] The plaintiffs in this matter seek to amend their particulars of claim to include a
cause of action relating to a future situation that may arise if at the trial, the Speical
Tribunal might find that the 547 payments made to the second defendant, Mr Kajee
(Kajee) by the , State Attorney, totalling R64 169 944.00 were as a result of
administrative action. Then in that event the plaintiffs seek an order that all instructions
given and authorisation of payments made to Kajee be reviewed and be set aside.
The plaintiffs' submissions
[2] The intended amendment notwithstanding, the plaintiffs continue to assert that
as a direct consequence of the first defendant, Mr Lekabe (Lekabe) being involved in a
collusive and corrupt relations1:rip with Kajee. Lekabe knew or ought to have known
1 Glenister v Preside/It of the Republic ofSouthAJHca and Others 2011 (3) SA 347 (CC)
2
that Kajee charged for professional services not rendered at all, or by double charging
for similar work done in a specific matter, or charging for work not done, and/or by
double invoicing the office of the State Attorney and/ or overreaching in his fee invoices
delivered to the office of the state attorney over the period 2014 to 2018.
[3] The Plaintiffs contend that the Special Tribunal hearing the matter in due course
may come to the conclusion that such conduct should be reviewed and set aside and that
Kajee and Lekabe be jointly and severally liable to repay the said amounts to the
plaintiffs, then in that event the plaintiff requires the assurance of having pleaded in the
alternative. Hence the need for the amendment.
[ 4] In justifying the amendment, some four years after the institution of the action,
the plaintiffs contend that once Lekabe delivered heads of argument in respect of the
special pleas raised by him, it became necessary to seek the amendment. Lekabe pleads
that the particulars of claim are premised on administrative action but that a review
order was not pleaded by the plaintiffs.
[5] According to the plaintiffs Lekabe only raised this defence on 28 August 2025.
That is two weeks before the commencement of the trial in his heads of argument. As a
result, thereof, the plaintiffs decided that it would be prudent that should the Special
Tribunal find that Lekabe's conduct did indeed constitute administrative action then in
that event the legality review should be pleaded.
[6] The plaintiffs contend that the principle of legality, the rule of law and
constitutional principles of transparent and accountable governance by public officials
such as Lekabe who was head of the office of the State Attorney, is a primary
consideration of the intended amendment that is contained in a notice dated 2 September
2025.
[7] Kajee did not object to the amendment. In fact, he refuses to attend the trial
allegedly on medical grounds. A medical specialist from the Helen Joseph Hospital
3
testified that Kajee was perfectly capable of attending the trial before the Special
Tribunal.
[8] Lekabe objects to the proposed amendment in that it is belated and out of time.
He also asserts that the amendment is defective in that it is not accompanied by an
affidavit addressing the issues raised by him, and that the amendment introduces a new
claim which is not supported by the averments filed in the original particulars of claim.
He also argues that the amendment should have been brought by way of a substantive
application. It is noted that the plaintiffs did subsequently bring a substantial application
to amend. He claims further that the new claim has prescribed and made in bad faith.
Lekabe contends that the plaintiffs have had knowledge of this particular special plea
for more than four years
[ 9] The plaintiffs insist that it was Lekabe' s heads of argument that raised this point
for the first time on the 28th of August 2025. This is the first time that the reasoning for
his fourth special plea was explained.
[ 1 O] The plaintiffs argue that lateness does not deter the intention to amend in terms
of tribunal rule 15 (I) and if successful would be entitled to do so by way of rule 15( 4)
of the Special Tribunal Rules.
[ 11] The plaintiffs contend that the cause of action and claim remain exactly the same
and that the relief sought is only in the event of the Special Tribunal finding that the
payments to Kajee were as a result of administrative action. All the witnesses to testify
remain the same and the facts will remain the same. The plaintiffs continue to assert
that Lekabe in his capacity as head of office of the State Attorney owed a duty of care
to perform his functions in a proper manner and a lawful manner. In particular the South
African taxpayers' money is involved. The plaintiffs plead that this unlawful collusive
action between Lekabe and Kajee took place from 2014 and October 2018 when Lekabe
action between Lekabe and Kajee took place from 2014 and October 2018 when Lekabe
was suspended. The plaintiffs contend that Lekabe knew or ought to have known that
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Kajee was charging for professional legal services not rendered, double charging,
double invoicing and overreaching.
[ 12] These facts were pleaded in the particulars of claim and accordingly the plaintiffs
contend it is not a new cause of action. In the original particulars of claim as against
Lekabe and Kajee before the consolidation of the actions, the causes of action seek
repayment of the monies as the plaintiffs have suffered damages because of Lekabe's
wrongful and unlawful breach of its statutory duties as head of the office of the State
Attorney alternatively that his conduct was negligent and resulted in losses of millions
of Rand to the State. The plaintiffs submit that it matters not whether the claim is one
for damages or a legality review, the goal is unchanged.
[ 13] Clearly the plaintiffs' original claim has its genesis in damages arising out of the
conduct of the attorney/counsel relationship. It is important to note that as behveen
Lekabe and Kajee the relationship was one of attorney and client. The relationship is of
a contractual nature as between attorney and counsel. It is essentially a contractual
relationship of a collaborative nature.
[ 14] The plaintiffs submit the same evidence will be led, and the same witness will
testify in the trial. The essential elements of a legality review in essence refers to the
process of evaluating the legality and compliance of actions, decisions, contracts,
: policies, or practices with applicable laws, regulations, and legal principles. In this case
a review would aim to ensure that the actions or decisions made in this case by a state
body does not violate legal requirements or infringe on the rights of others. It involves
checking whether certain actions or procedures are legally pennissible under the
jurisdiction's laws and ensuring that proper legal procedures are followed. A breach of
a contractual relationship is very different to a legality review and in the result, it is
a contractual relationship is very different to a legality review and in the result, it is
clear that the legality review introduces a new cause of action.
[15] The relationship as between Lekabe and Kajee is really contractual in nature.
The cause of action sounds in damages. The plaintiffs in seeking the amendment are
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clear that they do not relinquish or concede that the payments to Kajee were as a result
of administrative action. It is trite that an amendment which introduces a new cause of
action where it is distinct from the original cause of action are separate despite both
causes of action arising from the same conduct of the defendants. The facta probantia
required to prove a legality review are not the same as those already pleaded for the
damages action. Facts necessary to prove the legality review have not been pleaded.
[ 16] The plaintiffs contend that their replication denying that the payments were made
as a result of administrative action stands. The amendment will enable the Special
Tribunal to deal with what is a constitutional issue that it is in the interest of justice that
the amendment be allowed.
[17] The plaintiffs relied on a number of cases in support of the principle that
substantial latitude should be granted in allowing amendments. 2 The plaintiffs contend
that there is no prejudice to the defendants and that they will not be worse off if the
amendment is granted. The plaintiffs rely on case law to argue that that even if the
amendment may cause the other party to lose its case, it should not dissuade a court
from granting it. It matters not that the amendment is sought at a late stage. In this case
the amendment was sought during the week that the trial when Lekabe sought to have
his special pleas argued first.
[18] It was submitted that an appropriate cost order can remedy any prejudice. The
modern trend is to allow the proper ventilation of the dispute between the parties. In
relying on the case of Macduff 3, it is the plaintiffs' case no matter whether there is a
blunder however negligent or careless, the omission may be, the amendment should be
allowed because of the public interest.
2 Moo/man v Estate Moo/man 1927 CPD 27
3 Macduff & Co v Johrumesburg Consolidated Co. Ltd., 1923 T.P.D. 309, Macduffl923 TPD 309
6
Lekabe's submissions
[ 19] Lekahe objected on the basis the amendment sought was an ambush as he had
intended to argue his special please first before the commencement of the trial. It was
not brought by way of a substantive application, it was an ambush, it was made in bad
faith and for the purpose of seeking a postponement. The plaintiffs had knowledge of
the special plea for more than four years. The question of delay in bringing a legality
review is fatal to the amendment. Lekabe urges that he is entitled to just administrative
action. Lekabe quoted the provisions of the Constitution and P AJA in great detail. He
submitted that the Special Tribunal should interpret the conduct as. administrative
action. Reliance was placed on the case of Sentrachem vs Prinsloo 4 to deal with what
is a new cause of action. Based on the dicta Lekabe argues that the legality eview is by
no means even close to the original cause of action pleaded. Placing reliance on the case
to submit that an amendment is simply not there for the asking. Ultimately as stated by
Ngcobo J in Affordable Medicines 5
" ... the question in each case, therefore, is, what do the interests of justice demand?"
The claims
[20] I do not deal with all the grounds of objection. It seems to me that the most
important substantive objection relates to the difference in the original cause of action.
[21] Whilst a lot of latitude is granted in relation to amendments, the question is
whether that same latitude should be applied in relation to legality reviews which
constitute a clear and separate cause of action. It has been the basic jurisprudential
principle that the greatest latitude is allowed in granting amendments.6 But this
principle is not without limitations.
[22] It is necessary to analyse the pleaded particulars of claim in their present form.
4 Senlrachem v Prirzsloo 1997 (2) SA l(A) para 151 -166
5 Affordable Medicines Trost & Others v Minister of Health & Others 2006 (3) SA 247 para 9
5 Affordable Medicines Trost & Others v Minister of Health & Others 2006 (3) SA 247 para 9
6 Whittaker v Roos and Bateman; Monmt v Roos and Bateman 1912 AD 92:
7
The claims arising out of the direct relationship between the plaintiff and Lekabe and
Kajee are pleaded as follows:
22. l Claim A The State Attorney briefed Kajee in 17 matters at the rate of
Rl 450.00 per hour and R14 5000.00 per day. The total amount paid was
R3 705 002.00. Kajee charged in excess of 10 hours per day. He over reached,
double charged for legal services he did not render and rendered double invoices.
In so doing he made misrepresentations which were false and fraudulent. Kajee
overcharged by R692 350.00 and Kajee was unlawfully enriched by R692
350.00
22.2 Claim B During January to December 2015 Kajee was briefed to
appear in 37 matters at the rate of RJ 733.00 per hour and Rl 7 330.00 per day.
Kajee was paid a total amount of R5 710 176.00. He over reached, double
charged for legal services he did not render and rendered double invoices. In so
doing he made misrepresentations which were false and fraudulent. Kajee
overcharged by RI 265 047.06 and Kajee was unlawfully enriched by
RI 265 047.06.
22.3 Claim C for the period 2016 he was briefed in 67 matters at the rate of
R18 000.00 and R18 000.00. Kajee was paid and amount ofR13 839 062.00 and
overcharged by an amount of R5 231 027.00. The plaintiffs plead that Kajee
overcharged by charging in excess of 10 hours a day, over-reaching, he
overcharged, double charging which services he did not render on the dates
claimed. Kajee was enriched at the expense of the second plaintiff alternatively
the third alternatively the fourth plaintiff alternatively the State attorney. Kajee's
conduct was intentional or negligent misstatements or misrepresentations.
22.4 Claims D is relevant to the period January 2017 to December 2017 Kajee
was briefed in 79 matters at the rate of R2 250.00 per hour and R22 500.00 per
day. Kajee was paid R22 145 875 and paid allegedly overpaid RIO 952 937.00
8
22.5 Claim Eis relevant to the period 2018 at the rate of R2500.00 per hour
and R25 000.00 per day. Kajee was paid R15 423 750. 00. He was overpaid an
amount of R7 873 750.00. Kajee made false representations by way of his
invoices. The plaintiffs suffered damages in the said amount. Further Kajee was
unjustifiably enriched. Kajee was unjustly enriched in the said amount and the
second alternatively the third alternatively fourth plaintiff alternative the State
attorney was impove1ished.
22.6 Claim F Kunene Invoices. On 14 February 2018, Lekabe briefed Kajee
on behalf of the office of the state attorney to act on behalf of the second plaintiff
in the matter of Kunene vs The Minister of Police. Notwithstanding Kajee
charged for the period 18 December 2017 to 13 February 2018 and rendered
invoices to the Office of the State Attorney for alleged professional legal services
notwithstanding the fact that he did not render any services in the Kunene matter.
The total amount charged by Kajee R889 500.00
[23] Whilst not binding another Judge hearing this matter in due course, this cause
of action, as pleaded is based on the elements of a deli ct. The alleged conduct as pleaded
is a positive fraudulent act on the part of Kajee and an omission/or paiticipation by
Lekabe where a duty to act existed. The alleged conduct of both Kajee and Lekabe if
proven would be wrongful, intentional or in the case of Lekabe negligent alternatively
, intentional. The cause of the alleged damage has a direct link to the alleged conduct
[24] In terms section 5 of the Special Investigating Units and Special Tribunals No
74 of 1996. (The SIU Act), the SIU has the power, inter alia, to 'institute and conduct
civil proceedings in a Special Tribunal or any comi of law for - (i) any relief to which
the State institution concerned is entitled, including the recovery of any damages or
losses and the prevention of potential damages or losses which may be suffered by such
losses and the prevention of potential damages or losses which may be suffered by such
a State institution; (ii) any relief relevant to any investigation; or (iii) any relief relevant
9
to the interests of a Special Investigating Unit'. 7 The SIU also 'may institute and
conduct civil proceedings in its own name or on behalf of a State institution in a Special
Tribunal or any court oflaw'. 8
Underlining/or emphasis
[25] Accordingly a cause of action sounding in damages is permissible in terms of
the SIU Act. This is based on primary legislation and the cause of action does not arise
out of a Regulation or out of the Rules for Conduct of the Special Tribunal which
would amount to subsidiary legislation.
Delay
[26] The question now arises is whether the plaintiffs have delayed in bringing a
legality review A cause of action accrues at the time of the initiation of proceedings
it cannot accrue four years later triggered by what is stated in heads of argument. The
delay in pleading a legality review in this case is substantial. A further cause of
concern is that the Special Tribunal is not a court of law. 9 The case law is very
specific when it comes to assessing and applying the delay principles in legality
reviews. Eyery case on delay in legality proceedings refers to a court's inhe~ent
discretion. In terms of sl 72(I)(a) of the Constitution a court can declare invalid any
law or conduct that is inconsistent with the Constitution, to the extent of its
invalidity.10 The question is whether the Special Tribunal has the same powers as
those envisaged in s 172( I )(a) of the Constitution. Since the section refers to court
powers, those powers may not grant the Special Tribune same inherent powers to
achieve a just and equitable.
7 Section 4(1 )(c) of the SIU Act.
8 Section 5(5) of the STU Act.
9 Led/a Stmctural Development (Pry) Ltd and Others v Special Investigating Unit 2023 (2) SACR 1 (CC)
10 Buffalo City Metropolita11 Municipality v Asia Construction (Pty) ltd 2019 (4) SA 331 (CC) para 63 referring to Gijima
para 52.
10
[27] Notwithstanding the jmisprudence relating to delay in bringing legality reviews
it is incumbent on the Special Tribunal to apply the principles established by the
courts. The founding provisions of Constitution provide for the Supremacy of
Constitution as defined in section 2. The Constitution is the supreme law of the
Republic; and any law or conduct inconsistent with it is invalid, and the obligations
imposed by it must be fulfilled. Accordingly, despite the Speical Tribunal not being
a court of law the precedent on delay set by the Constitutional Court in Buffalo City
Metropolitan Municipality v ASLA Construction (Pty) Ltd 11 must be followed.
Buffalo endorsed the test followed in Gqwetha, 12 and later approved by the
Constitutional Court in Khumalo. 13 The Constitutional Court in Buffalo opined that
"the approach to delay in bringing a legality review, was, firstly, to examine whether the delay
was reasonable. This was to be answered by considering its explanation. If, indeed, the delay
was reasonable, the matter could be heard. But if the delay was unreasonable, the second
enquiry was whether the interests of justice required it to be overlooked, and the matter heard.
In that in assessing delay the first question to be determined is the reasonableness of the delay.
If the delay is found to be unreasonable, the next question is whether it should nevertheless be
overlooked in the interests of justice. 14
[27] Mabindla-Boqwana AJA in Special Investigating Unit And Another V
Engineered Systems Solutions (Pty) Ltd analysed very carefu1ly the principles and effect
of delay in legality reviews. The explanation for the delay must cover the entire period
and must be reasonable and justified.
"Where the delay is found to be unreasonable, there must be a basis for a court to exercise its
broad discretion to overlook it. This must be gathered from the available facts. In this evaluation
a number of factors must be taken into account. The first 'is potential prejudice to affected parties
as well as the possible consequences of setting aside the impugned decision. The potential
prejudice to affected parties and the consequences of declaring conduct unlawful may in certain
11 Buffalo City Metropolitan Municipality v Asla Co11stroction (Pty) Ltd 2019 (4) SA 331 (CC) para 48.
12 Gqwetha v Tra11skei Developmenl Corporations ltd a11d Others [2005] ZASCA 51; [2006) 3 AH SA 245; 2006 (2) SA 603
(SCA) para 33.
13 Khumalo and Another v Member of the Executive Council for Education, KwaZulu-Natal [2013) ZACC 49; 2014 (5) SA
579 (CC) para 49.
14 Buffalo paras 48 and 50.
11
circumstances be ameliorated by [the Court]'s power to grant a just and equitable remedy and this
ought to be taken into account'. The second factor to be considered is the nature of the impugned
decision. This entails 'a consideration of the merits of the legal challenge against that decision'.
Navsa JA in South African National Roads Agency Ltd v City of Cape Town15 highlighted the point
that the merits of the impugned decision are a critical factor in detennining whether it is in the
interests of justice to condone the delay. That 'wou ld have to include a consideration of whether
the non-compliance with statutory prescripts was egregious' . A third factor to be considered is the
conduct of an applicant. 16
[28] In Member of the Executive Council for Health, Eastern Cape and Another v
Kirland Investments (Pty) Limited t/a Eye & Lazer Institute, 17 Cameron J stated that:
' [T]here is a higher duty on the state to respect the law, to fulfil procedural requirements and to
tread respectfully when dealing with rights. Government is not an indigent or bewildered
litigant, adrift on a sea of litigious uncertainty, to whom the courts must extend a procedure
circumventing lifeline. It is the Constitution's primary agent. It must do right, and it must do it
properly.' 18
[29] Furthermore consideration must be given to the principle arising from Gijima is
that the court is obliged by virtue of the provisions of s 172( I)( a) of the Constitution to
declare invalid any law or conduct that is inconsistent with the Constitution, to the
extent of its invalidity. 19 The Constitutional Court in Buffalo held that this applies when
the unlawfulness is clear and undisputed.20 It further went on to state that the Gijima
principle should 'be interpreted narrowly and restrictively so that the valuable rationale
behind the rules of delay are not undermined' .21 ,
15 South African National Roads Agency Ltd v City of Cape Town [2016] ZASCA 122; [2016] 4 All SA 332; 2017 (1) SA 468
(SCA).
(SCA).
16 Special Investigating Unit and Another v Engineered Systems Solutions (Pty) Ltd 2022 (5) SA 416 (SCA)
17 Member of the Executive Council for Health, Eastern Cape and Another v Kirland Investments (Pty) Limited t/a Eye &
Lazer Institute [2014) ZACC 6; 2014 (3) SA 481 (CC) para 82.
18 Special Investigating Unit and Another v Engineered Systems Solutions (Pty) Lt.d (Case ,w 216/2020) [2021) ZASCA 90
(25 June 2021)
19 Buffalo para 63 refelling to Gijima para 52.
20 Bufalo para 66.
21 Buffalo para 71.
12
[30] In the result based on the above principles, I find the delay to be unreasonable.
The explanation given that this cause of action arises out of heads of argument filed by
the opposing party cannot justify the delay in these proceedings. Pleadings do not
depend on issues raised by an opponent. A litigant must grasp the nettle from the outset
and plead its cause of action. There is no sound factual basis in this case to justify the
delay in pleading a legality review. In my view the plaintiffs' explanation does not pass
muster and is therefore unsatisfactory. There is no basis to overlook the delay. The
plaintiffs have pleaded a cause of action as I have outlined above and done so in terms
of the SIU Act.
[3 1] The amendment to introduce a legality review is according! y denied.
Costs
[32] The costs must follow the result. I am going to allow the costs of Advocate
Brown's appearance and his preparation for the opposed hearing on the scale C. Mr
Lekabe is a litigant and his own attorney. Accordingly, I do not allow attorney's fees
for taxation.
Order
The following order is made:
I. The application for amendment is refused.
2. The plaintiffs are ordered to pay the costs of appearance and preparation of Adv
Brown on scale C.
JUDGE M VICTOR
PRESIDENT OF THE SPECIAL TRIBUNAL
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Appearances:
For the plaintiff: Adv DJ Joubert SC
Adv GVR Fouche
Instructed by: Gildenhuys Malatji Attorneys
For the first defendant: Adv D Brown
Instructed by: Mr K.G. Lekabe
For the second defendant: Mr H.E. Kajee (in person)
Date of hearing: 12 September 2025
Date of judgment: 15 January 2026.
Mode of delivery
DEPARTMENT Of JUSTICE AND COIISTITUTIONAL OEVELOPMEHT
SPECIAL TRIBUNAL
CNR AMANDA AVENUE & RIFLE RANGE ROIIO, OAKDfNE
2026 -01- 1 5
C/A No: One
IIEGISTRAR
This judgment is handed down by email transmission to the parties' legal
representatives, uploading on Caselines and release to SAFLII and AFRICANLII. The
time of delivery is deemed to be l 2H00.
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