CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 319/21
In the matter between:
LEDLA STRUCTURAL DEVELOPMENT
(PTY) LIMITED First Applicant
RHULANI LEHONG Second Applicant
KGODISHO NORMAN LEHONG Third Applicant
and
SPECIAL INVESTIGATING UNIT Respondent
Neutral citation: Ledla Structural Development (Pty) Ltd and Others v Special
Investigating Unit [2023] ZACC 8
Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Mlambo AJ, Theron J and Tshiqi J
Judgments: Mhlantla J (unanimous)
Heard on: 24 May 2022
Decided on: 10 March 2023
Summary: Special Tribunal established in terms of section 2 of the Special
Investigating Units and Special Tribunals Act — Special Tribunal
is not a court but has the jurisdiction to adjudicate legality reviews
ORDER
On appeal from the Special Tribunal held at the High Court of South Africa, Gauteng
Division, Pretoria:
1. Leave to appeal is granted.
2. The appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
MHLANTLA J (Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mlambo AJ, Theron J
and Tshiqi J concurring):
Introduction
[1] This is an application for leave to appeal against a ju dgment and order of the
Special Tribunal held at the High Court of South Africa, Gauteng Division, Pretoria .
The Special Tribunal is established in terms of section 2 of the Special Investigating
Units and Special Tribunals Act 1 (SIU Act). The Special Tribunal reviewed and set
aside an unlawful contract. It issued an interdict and a forfeiture order in respect of
monies held in terms of a preservation order . The central question in this matter is
whether the Special Tribunal is a court and has review powers as well as the powers to
grant preservation and forfeiture orders.
1 74 of 1996.
MHLANTLA J
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Parties
[2] The first applicant is Ledla Structural Development (Pty) Ltd (Ledla). The
second and third applicants are Ms Rhulani Lehong and Mr Kgodisho Norman Lehong,
respectively. They are the directors and co-chief operations officers of Ledla. The
respondent is the Special Investigating Unit (SIU), an organ of state established in terms
of section 2(1)(a)(i) of the SIU Act.
Background
[3] The following background is largely taken from the judgment of the
Special Tribunal. In December 2019, the world was introduced to COVID-19.2
The first confirmed case of COVID-19 in South Africa was reported on 5 March 2020.3
The unanticipated emergence of COVID-19 prompted the South African government
to take active measures to prevent the further spread of the coronavirus and, as far as
possible, mitigate its effects. 4 One such measure was the procurement of pers onal
protective equipment (PPE), a task that was to be perfor med by the various
provincial departments of health.
[4] On 27 March 2020, the Chief Operations Officer of the Gauteng Department of
Health (Department) presented a report that revealed a PPE shortage of R1.7 billion for
the entire Department. The report was informed by a decision of the Department that
was taken to assess and project the impending PPE shortage , as well as the quantities
required to ensure that frontline health workers would be protected. As a result of this
2 The World Health Organisation (WHO) declared COVID-19 a pandemic on 11 March 2020. See Cucinotta and
Vanelli “WHO Declares COVID -19 a Pandemic” (2020) 9 Acta Biomed at 157. See also Nyamutata “Do Civil
Liberties Really Matter During Pandem ics? Approaches to Coronavirus Disease (COVID -19)” (2020) 9
International Human Rights Law Review 62 at 70; Allam Surveying the Covid-19 Pandemic and its Implications
(2020) Elsevier Inc at 1-2; and Huang et al “Clinical Features of Patients Infected with 2019 Novel Coronavirus
in Wuhan, China” (2020) 395 The Lancet at 497.
3 Herman “Coronavirus: SA’s First Positive Case of Covid -19 Confirmed” News24 (5 March 2020), available
at https:/www.news24.com/SouthAfrica/News/breaking-sas-first-positive-case-of-covid-19-confrmed-
20200305.
4 Sobikwa and Phooko “An Assessment of the Constitutionality of the COVID -19 Regulations Against the
Requirement to Facilitate Public Participation in the Law-Making and/or Administrative Process in South Africa”
(2021) 25 Law, Democracy and Development 309 at 311, 326-7.
MHLANTLA J
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report, a decision was taken to procure PPE stock. Ms Mantsu Kabelo Lehloenya, the
Chief Financial Officer of the Department, was appointe d as the chairperson of the
Bid Adjudication Committee and was placed in charge of the procurement process for
the Department.
[5] For reasons of exigency, the Department authorised a deviation from compliance
with the normal tender processes. It is worth noting that this deviation was adopted by
the Department, notwithstanding Note No 8 of 2019/2020 that was issued in terms of
section 76 of the Public Finance Management Act 5 (PFMA) on 19 March 2020 by the
National Department of Treasury. Note 8 was issued to, among other things, support
effective and efficient service delivery , as well as to curb possible abuse s of supply
chain management systems during the period of managing COVID-19. Clause 2.3 of
Note 8 emphasises that in procuring COVID -19 items, state institutions we re required
to comply with the PFM A and the applicable emergency provisions of the
Treasury Regulations.6 Regulation 16A6.4 of the Treasury Regulations provided that
if it was impractical to invite competitive bid s, the accounting officer may procure the
required goods and services by other means, provided that the reasons for deviation
from inviting competitive bids were recorded and approved by the accounting officer.
Although the Department did not advertise the tender or call for bids, as it would in the
ordinary course, it received bids from various individuals and businesses.
[6] The Department received two bids to supply mask s, disposable bags and
sanitisers from Royal Bhaca (Pty) Ltd (Royal Bhaca ), whose sole d irector was
Mr Thandisizwe Diko – a close family friend to Dr Bandile Masuku, the then Member
of the Executive Council for Health in Gauteng. Mr Diko secured two contracts
(PPE contracts) with the Department to the value of R125 million. When the
relationship between Mr Diko and Dr Masuku became public knowledge, Royal Bhaca
was substituted with Ledla.
5 1 of 1999.
6 Treasury Regulations, GN R225 GG 27388, 15 March 2005.
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[7] On 25 March 2020, Ms Thandy Pino w as appointed a s Chief Director of
Supply Chain and Asset Management in the Department . Five days after her
appointment, Ms Pino signed commitment letters for PPE contracts valued at
R125 million. It is common cause that Ms Pino did not have the necessary authority to
sign off on procurement contracts that exceeded the value of R30 000. Ms Pino advised
the SIU that Ms Lehloenya had instructed her to sign the letters of commitment.
[8] On 13 April 2020, Ms Lehloenya received a quotation from Ledla for several
PPE items amounting to R139 million. According to the SIU’s investigation, the
quotation was created by Mr Diko and modified by Ms Lehloenya. On 20 April 2020,
the quotation was accepted by Ms Lehloenya and the amended commitment letter was
sent directly to Mr Diko. On 30 April 2020, Ms Lehloenya sent two emails to Mr Diko.
One of them cancelled the two contracts with Royal Bhaca and t he other was an
acceptance of the quotation on behalf of the D epartment. The second email also
contained the amended letter of commitment attached to an email dated 20 April 2020.
Thereafter, Ms Lehloenya resigned from the Department on 1 May 2020.
[9] On 3 August 2020, the Department deposited an amount of R38 758 155 into
Ledla’s bank account. Between 3 and 5 August 2020, Ledla transferred a large portion
of this amount into various bank accounts. K Manufacturing and Supply (Pty) Ltd
(K Manufacturing) received an amount of R16.5 million. Mr Sangoni, who was neither
a director nor an employee of Ledla, but a relative of Mr Diko’s wife, instructed
K Manufacturing to transfer R8.5 million to his company, Zakheni Strategic Solutions
(Pty) Ltd. From the remaining money, K Manufacturing distributed various amounts
to five companies and three individuals.7 Mediwaste Packaging (Pty) Ltd (Mediwaste),
received R3 470 000 from Ledla . On the next day, Mediwaste transferred various
7 The five companies were: Hall mann Worldwide Logistics (Pty) Ltd; Double Click BTC (Pty) Ltd; Skyline
Contractors (Pty) Ltd; Home Vision Projects (Pty) Ltd; and XC Logic (Pty) Ltd. The three individuals were Mpho
Mafenyane, Yuchang Xiao and Ronen Barashi.
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amounts into the bank account s of nine other business entities and three individuals .8
Another company, Atturo Tyres (Pty) Ltd, received R1 426 000 from Ledla and it also
distributed it to various business entities and individuals.9
[10] Mr Jonathan Maake, the managing director of Mediwaste, filed an affidavit
before the Special Tribunal in which he alleged that , on 3 April 2 020, he was
approached by Mr Lehong and Ms Lehong, as representatives of Royal Bhaca, seeking
to place orders for the supply of disposable bags and health care boxes . Mediwaste
charged 75 cents for each disposable bag. The total for a million disposable bags came
to R750 000. Royal Bhaca charged the Department R7 per bag, totalling R7 million for
the million disposable bags. Royal Bhaca, therefore, made a profit of R6 250 000 on
the disposable bag transaction.
[11] According to Mr Maake, while Mr Diko was attending at Mediwaste to facilitate
a certain payment, Mr Diko proposed that Mediwaste and Royal Bhaca enter into a
partnership. This partnership, in terms of the proposal, was to be capitalised by securing
a loan for the amount of R30 million from the Industr ial Development Corporation.
Upon securing the loan, this amount would be shared between the two entities ,
whereafter Mediwaste would file for bankruptcy.
[12] Several complaints were made regarding allegations of corruption in the
procurement of PPE. The Head of Department referred the allegations to the Office of
the Premier. A preliminary investigation was conducted by the Office of the Premier.
The investigation revealed violations of procurement prescripts and impropriety in the
processing of payments. The media widely reported on the award of two contracts to
Royal Bhaca and suggested that the awards may have been as a result of Mr Diko’s
proximity to political power. As a result, the President of the Republic of South Africa
8 The nine businesses were: Xingyu Plastic Recycling (Pty) Ltd; Mortz Marketing Enterprise CC; Injemo
Engineering and Plas tic Products (Pty) Ltd; Buhle Waste (Pty) Ltd; Api Property Group (Pty) Ltd; Sasol South
Africa Limited; Mutasa Tool and Die Engineering (Pty) Ltd; Empiru (Pty) Ltd; and Boxlee (Pty) Ltd.
9 Atturo distributed the funds to the following entities and individ uals: Jamac Technological CC; Manikensis
Investments 6 (Pty) Ltd; Angelic Juliana Groenewald; Michael Gerad Rofail; and Patrick John Kalil.
MHLANTLA J
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issued a proclamation in t erms of the SIU Act, authorising the SIU to investigate acts
of maladministration, corruption and breaches of procurement procedure s relating to
COVID-19 and for remedial steps to be taken.
[13] The SIU conducted investigations and concluded that Ms Lehloenya was central
to the conclusion of the unlawful contract and authoris ation of the payment of
R38 758 155 to Ledla. This was based on email correspondence between Ms Lehloenya
and Mr Diko, as well as evidence from other parties. The SIU ’s findings prompted it
to approach the Special Tribunal for urgent relief relating to the contract awarded to
Ledla.
Litigation history
Special Tribunal
Urgent application
[14] In August 2020, the SIU launched an ex parte urgent application against Ledla
and various other business entities and individuals for relief in three parts:
(a) cancellation of the contract between the Department and Ledla; (b) a preservation
order against various banks which held the amount of R38 758 155 paid to Ledla; and
(c) an interdict prohibit ing the Government Employees Pension Fund and the
Government Pensions Administration Agency from releasing monies held in pension
and retirement benefits due to Ms Lehloenya. The interim order was granted and a rule
nisi was issued.
Return date
[15] On the return day of the rule nisi, the SIU applied for the contract concluded by
Ledla and the Department to be reviewed and set aside for being unlawful. It also
applied for the amount of R38 758 155 which was subject to a preservation order, to be
forfeited to the state. The respondents opposed the relief sought on several grounds .
These included that: (a) the Special Tribunal is not a court and does not have review
powers to grant the orders sought; (b) the SIU lacked locus standi; (c) the funds had
MHLANTLA J
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mixed with other monies in the bank and thus became the property of the bank
(commixtio); and (d) they sought a proper interpretation of rule 26 of the Rules for the
Conduct of Proceedings in the Special Tribunals (Special Tribunal Rules).10
[16] The Special Tribunal had to determine whether: (a) the contract entered into
between Ledla and the Department should be reviewed and set aside; (b) the amount of
R38 758 155 should be declared as the proceeds of unlawful activity and forfeited to
the state; and (c) the interdict should be extended.
[17] On the first issue, the Special Tribunal considered the Instruction Notes issued
by the National and Provincial Treasury for PPE procurement and found that, on the
evidence, it appear ed that Royal Bhaca submitted a qu otation for the supply of
bio-hazard health care box es and bags valued at R47 million and the Department
awarded it the contract for that amount. The next day, Royal Bhaca submitted a
quotation for the supply of masks and hand sanitisers valued at about R78 million and
the Department also awarded it the contract for that amount. Both quotations were
accepted through commitment letters that were signed by Ms Pino. She alleged that it
was Ms Lehloenya who had instructed her to sign the commitment letters and who
personally invited the suppliers to submit bids. Ms Lehloenya disputed these
allegations.
[18] The Special Tribunal held that there was a lin k between Royal Bhaca and
Ledla – in essence Ledla became a substitute for Royal Bhaca in the amended contract
signed by Ms Lehloenya on 20 April 2020. Mr Diko, Mr Lehong and Ms Lehong were
acting in concert with officials from the Department to supply PPE at inflated prices.
The prices quoted were in excess of the maximum prices set by Treasury , none of the
10 Rule 26(1) of the Special Tribunal Rules regulates forfeiture orders and states:
“At the conclusion of the proceed ings and on final determination of the dispute, depending on
the outcomes on the unlawful activities of the respondent or the defendant, as the case may be,
the Tribunal shall make a final order for forfeiture to the State of the property held under a
restraint order or property preservation order where a respondent has been found to have
partaken in unlawful activities.”
MHLANTLA J
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senior officials negotiated these prices and a cost comparison was never undertaken. In
conclusion, the Special Tribunal held that one or more senior officials at the Department
acted in concert with Mr Diko and, therefore, the contracts awarded to Royal Bhaca and
Ledla were unlawful and fell to be set aside.
[19] On the second issue, the Special Tribunal held that Mr Diko had been implicated
by documentary evidence. Ms Lehloenya sent two emails to Mr Diko just before she
resigned: one that cancelled the contract with Royal Bhaca and another that contained
the amended letter of commitment to Ledla. The significance of this, according to the
Special Tribunal, is that it was strange that an “amended” letter of commitment would
be sent to Ledla, when no previous co mmitment had been made . Further, the
Special Tribunal questioned why the email was sent to Mr Diko, who had nothing to do
with Ledla.11 The Special Tribunal held that the unlawful contract was the basis for the
payment of R38 758 155. Therefore, it was irrelevant that Ms Lehloenya had resigned
by the time the payment was made. 12 The Special Tribunal extended the interdict
pending the finalisation of the action proceedings under case number GP/11/2020 in the
Special Tribunal.
[20] Regarding the question whether the Special Tribunal is a court, it was held that
the Special Tribunal, although sui generis (of its own kind), performs the functions of
a civil court.13 A decision by the Special Tribunal is appealable to the Full Court of the
High Court and, therefore, fits the description of a court as contemplated i n
section 166(e) of the Constitution. The Special Tribunal held that , although the SIU
was wrong to rely on the Special Tribunal Rules to found a cause of action, there is a
cause of action under the SIU Act.14 It further held that the review and setting aside of
improper or unlawful conduct by employees of any state institution arising out of an
11 Ledla Structural Development (Pty) Ltd v Special Investigating Unit , unreported judgment of the
Special Tribunal, Gauteng Case No GP 07/2020 at para 39 (Special Tribunal judgment).
12 Id.
13 Id at para 46.
14 Id at para 48.
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investigation in section 2(2) of the Act is competent relief that may be sought within
the meaning of civil proceedings in the SIU Regulations.15 It held that the SIU has the
necessary locus standi to institute proceedings in the Special Tribunal.16 The
Special Tribunal also dismissed the defence that, since the funds had been deposited in
the various bank accounts, the funds had mixed with other monies in the bank and thus
became the property of the bank.17
[21] The Special Tribunal considered the evidence against each of the cited
respondents to determine whether forfeiture was appropriate , given this Court’s
decisions in Botha18 and Mohamed,19 and the right not to be arbitrarily deprived of
property. The Special Tribunal said that rules 24 and 26 of the Special Tribunal Rules
mirror the provisions of the Prevention of Organised Crimes Act 20 (POCA) in respect
15 Id at para 50.
16 Id at para 52.
17 Id at para 59.
18 In National Director of Public Prosecutions v Botha N.O. [2020] ZACC 6; 2020 (1) SACR 599 (CC); 2020 (6)
BCLR 693 (CC) at paras 108-9, this Court held:
“If the person opposing forfeiture persuades the High Court that forfeiture should not be granted,
it should not grant the order. Where that person establishes that she has legally acquired interest
for consideration in the proceeds of unlawful activities, the Court may exclude such interest in
the operation of the forfeiture order.
It is evident from the scheme emerging from sections 48-52 of [Prevention of Organised Crimes
Act] that proceeds of unlawful activities may be forfeited to the state unless a party opposing
forfeiture has legally acquired them for consideration. If the acquisition occurred after January
1999, she must al so show that she did not know or had no reasonable grounds to suspect that
the property in which she acquired interest was the proceeds of unlawful activities.”
19 National Director of Public Prosecutions v Mohamed N.O. [2003] ZACC 4; 2003 (4) SA 1 (CC);
2003 (5) BCLR 476 (CC) at paras 18-9, this Court held:
“Prior to the forfeiture stage of the proceedings there is an opportunity for affected parties to
have preservation orders set aside or varied. So, section 47(3) provides that a High Court shall
rescind a preservation order made in respect of immovable property ‘if it deems it necessary in
the interests of justice’ to do so. Section 47(1) provides, in respect of movable property, that a
High Court may vary or rescind the preservation order, but in much more limited circumstances
than in the case of immovable property.
At the forfeiture stage of the proceedings an owner can claim that he or she acquired an interest
in the property in question legally and for value, and that he or she neither knew nor had
reasonable grounds to suspect that the property constituted the proceeds of crime or had been
an instrumentality in an offence (‘the innocent owner’ defence).”
20 121 of 1998. Rule 24 of the Special Tribunal Rules regulates preservation orders. It provides:
“(1) Any interested person or party including the SIU may by way of an ex parte application
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of preservation and forfeiture. Relying on the decisions of this Court relating to POCA,
the Special Tribunal said its approach to forfeiture would be to ascertain whether the
Special Tribunal was persuaded that : (a) each respondent to whom the money was
apply to the Tribunal for an order prohibiting any person, subject to such conditions
and exceptions as may be specified in the order, from dealing in any manner wit h any
property.
(2) The application must demonstrate that the property concerned:
(a) is or has been [an] instrumentality of an offence referred to in schedule 1 of
[Prevention and Combating of Corrupt Activities Act]; or
(b) constitutes the proceeds of unlawful activities emanating from the findings of
an investigation conducted by SIU, pursuant to a proclamation made by the
President relevant to that investigation, in terms of section 2(1) of the Act.
(3) The Tribunal at the time of granting a preservation order may at the same time make
an order authorising the seizure of the property concerned by a police official, and any
other ancillary orders that the Tribunal considers appropriate for the proper , fair and
effective execution of the preservation order.
(4) Property seized under this Rule shall be dealt with in accordance with the directions of
the Tribunal.
(5) Where the Tribunal orders preservation of a property, the SIU shall, as soon as is
practicable after granting the order––
(a) give notice of the order to all persons known to the SIU to have an interest in
property which is subject to the order; and
(b) publish a notice of the order in the Gazette.
(6) A notice under this sub-rule 5 shall be served in the manner provided for in these Rules.
(7) Any person who has an interest in the property which is subject to the preservation
order may enter an appearance to apply for an order excluding his or her interest in the
property concerned from the operation thereof.
(8) An appearance under this Rule shall be delivered to the SIU and in the case of––
(a) a person upon whom a notice has been served under sub-rule 5, 14 days after
such service; or
(b) any other person, 14 days after the date upon which a notice under subsection
(1)(b) was published in the Gazette.
(9) An appearance under sub-rule 5 shall contain full particulars of the chosen address for
the delivery of documents concerning further proceedings and shall be acco mpanied
by an affidavit stating––
(a) full particulars of the identity of the person entering the appearance;
(b) the nature and extent of his or her interest in the property concerned; and
(c) the basis of the defence upon which he or she intends to rely in opposing a
forfeiture order or applying for the exclusion of his or her interests from the
operation thereof.”
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transferred acquired the rights to the money legally; (b) the acquisition was for value;
and (c) the respondents neither knew nor had any reasonable grounds to suspect that the
money was the proceed s of unlawful activity.21 The Special Tribunal found that the
three applicants that are before this Court had failed that test. The Special Tribunal also
declared the contract to be unlawful and set it aside . It extended the interim interdict
pending the finalisation of the action proceedings . It confirmed the preservation order
against Ledla, K Manufacturing, Ms Lehong and Mr Lehong and declared the money
forfeited to the state.
[22] Aggrieved by the decision of the Special Tribunal, the applicants applied for
leave to appeal. That application was dismissed.
Supreme Court of Appeal
[23] The applicants petitioned the Supreme Court of Appeal . That Court refused
leave to appeal.
In this Court
Applicants’ submissions
Jurisdiction and leave to appeal
[24] The applicants submit that this Court’s jurisdiction is engaged as this matter
requires this Court to determine: (a) the “proper interpretation and application of
instruments intended to give effect to s ection 217 of the Constitution” ; (b) the proper
interpretation and application of the right to a fair trial ; (c) the interpretation and
application of section 217 of the Constitution; ( d) the scope of the Special Tribunal’s
public powers to adjudicate judicial reviews, which – according to the applicants – is a
matter that falls within the exclusive preserve of the High Court; and (e) the powers of
the Special Tribunal to effect a deprivation of private property.
21 Special Tribunal judgment at para 72.
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[25] With regard to leave to appeal, the applicants submit that the application enjoys
reasonable prospects of success, as the relief sought by the SIU should have been
dismissed. The applicants further submit that it would be in the interests of justice for
this Court to hear this matter, as its adjudication will aid in providing certai nty on the
scope of the Special Tribunal’s powers and functions.
Merits
[26] The applicants submit that the Special Tribunal is not a court and, consequently,
the review proceedings and the forfeitu re orders it granted were a nullity, as they were
premised on a n incorrect assumption that the Special Tribunal is a court of law. The
applicants draw a distinction between the powers and functions of tribunals and courts,
and submit that tribunals have l imited powers and func tions which are conferred on
them. The applicants argue that the Special Tribunal is set up by the President of the
Republic of South Africa and the Legislature could not have contemplated conferring
unfettered discretion on the President to create a court.
[27] The applicants submit that the Special Tribunal does not have the powers to
“adjudicate judicial reviews of administrative action or any exercise of public power for
the contravention of section 217 of the Constitution” under any judicial review scheme.
They submit that a breach of section 217 can only elicit a jud icial review under two
avenues – the principle of legality (section 1(c)) or through the Promotion of
Administrative Justice Act22 (PAJA). On legality review, the applic ants contend that
the remedial action that may be taken by a court is in terms of section 172 of
the Constitution, which entitles a court to make a just and equitable order, inclusive of
a declaration of constitutional invalidity. The applicants submit that tribunals are not
authorised to exercise section 172 powers, as the se are reserved for the courts. Under
PAJA review, the applicants state that section 6(1) of PAJA empowers a “court or a
tribunal” to conduct a “judicial review of an administrative act ion”. The applicants
elucidate that PAJA defines a court as “a High Court or another court of similar status”
22 3 of 2000.
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and the “Magistrates ’ Court”, exclusive of a body akin to the Special Tribunal.
Therefore, a tribunal is excluded from the definition. The applicants submit that the
Special Tribunal acted beyond its powers when it engaged in a judicial review and, thus,
its decisions are a nullity. The applicants also reject the submission that the
Special Tribunal’s review powers are sourced from the Regulations of the
Special Investigating Units and Special Tribunals23 (SIU Regulations).
[28] The applicants submit that the Special Tribunal was not empowered by the
SIU Regulations or the Special Tribunal Rules to grant a preservation order. According
to th e applicants, the SIU Regulations do not permit civil forfeiture, unless the
preservation order, under which th e property is subject, is “legally competent”. The
applicants submit that legal competence is not conferred by the SIU Regulations but
must be p re-existing – the forfeiture powers must be conferred by an extrinsic
empowering instrument. In the absence of that instrument, a forfeiture of assets is
incompetent and not authorised. Additionally, the applicants submit that a n order
relating to the forfeiture of assets is a deprivation of property, which implicates
section 25(1) of the Constitution.24 The section 25(1) right may only be limited in terms
of a law of general application. The applicants submit that the Special Tribunal Rules
do not constitute a law of general application and cannot be interpreted as such.
[29] The applicants make several submissions to the effect that the Special Tribunal
erred in its factual findings. The applicants submit that the finding by the
Special Tribunal that the awarding of the contract to the first applicant was tainted with
corruption and fraud related to an issue that was not before it for adjudication. They
refute the finding that Ledla was unlawfully substituted for Royal Bhaca. They further
disavow the finding that the quoted prices were in excess of the maximum prices
23 Regulations: Special Investigating Units and Special Tribunals GN R360 GG25024, 14 March 2003.
24 Section 25(1) of the Constitution provides:
“No one may be deprived of property except in terms of law of general application, and no law
may permit arbitrary deprivation of property.”
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regulated in terms of Treasury Note s 5 and 8 as well as the finding that Ms Lehloenya
had acted alone and beyond her powers in the procurement process.
[30] The applicants seek an order setting aside the order of the Special Tribunal and
an order “discharging the rule nisi and dismissing the application with costs including
costs of two counsel”. The applicants further seek costs of the special application for
leave to appeal to the Supreme Court of Appeal, inclusive of costs consequent upon the
employment of three counsel.
Respondent’s submissions
Jurisdiction and leave to appeal
[31] The respondent submits that it would not be in the interests of justice for this
Court to grant leave to appeal. In support of its submissions, the respondent contends
that the applicants have no material defence, as the award of the tender to Ledla was
“manifestly unlawful and calculated to conceal the interests of Mr Diko”.
[32] The respondent also submits that the applicants have raised mostly novel issues
and arguments in their written submission s. These include the challenge to the status
or jurisdiction of the Special Tribunal . The respondent argues that these issues were
not raised by the applicants in the proceedings before the Special Tribunal or in the
application filed in the Supreme Court of Appeal or this Court. The respondent submits
that the challenge to the Special Tribunal’s status and jurisdiction is a far-reaching issue
of public importance, which could affect a range of respondents who have been and/or
will be subject to review proceedings. Thus, by adjudicating this matter, this Court will
be acting as a court of first and last instance, without the benefit of the respondent’s
adequately prepared submissions and in the absence of the Minister of Justice, who
ought to have been a party to the proceedings. The respondent further submits that the
applicants, in their application for leave to appeal in this Court, expressly accepted the
status of the Special Tribunal as a court and that it was entitled to grant an order
reviewing and setting aside the award of a tender.
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Merits
[33] The respondent submits that the Special Tribunal’s power to conduct reviews
and to grant forfeiture orders is not determined by its status as a court, “but by the proper
interpretation of the powers vested in it by the SIU Act and the Re gulations”. The
respondent further contends that nothing in the Constitution “precludes an independent
and impartial T ribunal” from exercising review powers, setting aside tender awards
and/or making forfeiture orders. Further, the respondent submits tha t the
Special Tribunal is a court. According to the respondent, the Special Tribunal may be
described as “any other court” in terms of section 166(e) of the Constitution and/or
qualifies as a court “established in terms of an Act of Parliament” – the Special Tribunal
was established pursuant to the SIU Act. The respondent also contends that it meets the
requirements of independence outlined in section 165 (2) of the Constitution . The
respondent submits that when determining whether the Special Tribunal is a court, its
functions and features must be taken into account. The respondent contend s that the
Special Tribunal functions on the same basis as a civil court, bearing in mind its
composition, the public participation in its proceedings and the effect of its decisions.
[34] On its composition, the respondent submits that the Special Tribunal is
composed of judges and magistrates who are already clothed with judicial authority.
On its functioning, the respondent submits that the Special Tribunal is independent and
impartial;25 specifically tasked with adjudicating civil proceedings and making orders
similar to a court; 26 empowered to issue warrants for persons who fail to honour a
subpoena; and makes decisions that are executed and appealed on the same basis as a
single judge of the High Court.27
25 See section 8(1) of the SIU Act.
26 See section 8(2) of the SIU Act.
27 See sections 8(7) and 9(7) of the SIU Act.
MHLANTLA J
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[35] The respondent submits that the Special Tribunal is empowered to adjudicate
civil proceedings in terms of section 8(2) of the SIU Act. It contends that the impugned
review proceedings were civil proceedings in terms of section 8(2), thus the
Special Tribunal has the necessary jurisdiction. The respondent further submits that
section 8(2) of the SIU Act accords with section 34 of the Constitution and PAJA.
[36] Additionally, the respondent argues that the contention that the Special Tribunal
does not have the jurisdiction to adjudicate reviews subverts the scheme of the SIU Act,
which was intended to investigate “serious malpractices or maladministration in
connection with the administration of state institutions”. The respo ndent submits that
review proceedings are “quintessential civil proceedings designed to remedy
malpractices and maladministration in connection with the administration of state
institutions”.
[37] The respondent contends that the Special Tribunal has the requisite authority to
grant forfeiture orders . In this regard, the respondent submits that the applicants
erroneously relied on the Special Tribunal Rules that were promulgated in 2020,
whereas the rules relied upon to seek the preservation order when the proceedings were
launched were promulgated in 2019. The respondent avers that rule 24 of the
2019 Rules was capable of supporting the preservation and forfeiture order s that were
granted by the Special Tribunal. It further submits that there is no merit in the
applicants’ contention that the Special Tribunal Rules are not a law of general
application, as they were published and apply to “all persons who found themselves
subject to proceedings before the Special Tribunal”.
[38] Lastly, the respondent argues that there is no merit in the allegation that the
Special Tribunal made incorrect factual findings. The respondent contends that it
presented substantial evidence about the material issues in the case, some of which were
unchallenged. The respondent further submits that the Special Tribunal’s findings were
premised on uncontroverted evidence. The respondent argues that the applicants’
version is contrived, and the evidence presented demonstrates that the first applicant
MHLANTLA J
18
was “unlawfully and irregularly awarded” the contract. Thus, the respondent seeks that
the application for leave to appeal be dismissed, or if leave is granted, the appeal be
dismissed with costs, including the costs of two counsel.
Issues
[39] The preliminary issue that must be determined is whether the jurisdiction of this
Court is engaged and, if so, whether leave to appeal should be granted. The main issues
that must be determined relate to the status of the Special Tribunal. In particular :
whether the Special Tribunal is a court of law; whether the Special Tribunal has powers
to adjudicate reviews and, if so, whether it may issue forfeiture orders; and whether it
is open to this Court to determine the correctness of the Special Tribunal’s factual
findings concerning the applicants’ conduct.
Jurisdiction and leave to appeal
[40] This matter is primarily centred on the determination of the scope and content of
the Special Tribunal’s status, powers and functions. This exercise also involves, to
some extent, the interpretati on of section 8 of the SIU Act. These are constitutional
issues as they concern an enquiry into the exercise of public power. Consequently, this
Court’s jurisdiction is engaged. Further, t he inquiry into the status, powers and
functions of the Special Tribunal raises a n arguable point of law of general public
importance, as envisaged in section 167(3)(b)(ii) of the Constitution. This Court is also
called upon to provide clarity on the competence of the Special Tribunal to adjudicate
reviews and make forfeiture orders.
[41] These are questions that have greater implications, not just for the litigants before
this Court, but also for other parties who may find themselves before the
Special Tribunal in similar cases. Therefore, it is in the interests of justice that leave to
appeal should be granted.
MHLANTLA J
19
Merits
Is the Special Tribunal a court?
[42] Before determining this issue, it is imperative to address the respondent’s
contentions that the questions surrounding the Special Tribunal’s status and powers
were raised for the first time in this Court and that the applicants made a concession on
the status of the Special Tribunal.
[43] On the first contention – whether the questions surrounding the
Special Tribunal’s status and powers were raised for the first time in this Court – the
record before us reveals the following: in an affidavit filed at the Special Tribunal and
deposed to by the second applicant, the SIU’s authority to institute the review
proceedings and to seek a forfeiture of assets, as well as the Special Tribunal’s
jurisdiction over these matters, are challenged. The applicants allege d that the
appropriate remedy for confiscation and forfeiture could only be in terms of the POCA
or the Prevention and Combating of Corrupt Activities Act ,28 which may only be
brought by the National Prosecuting Authority. The applicants e xpressly argued that
the SIU does not have legal standing to prosecute a claim against the other respondents
and that the Special Tribunal does not have jurisdiction over the envisaged claim.
[44] The question w hether the Special Tribunal is a court and whether it has
jurisdiction to adjudicate reviews was also directly addressed by the Special Tribunal
in its judgment, in which it made a finding that its status fits the description of a court.
[45] On the second contention – whether the applicants made any concession on the
status of the Special Tribunal – due regard must be had to the applicants’ conduct. The
applicants have been consistent in their arguments and their challenge of the
Special Tribunal’s status and powers. Their conduct is not consistent at all with the
alleged concession. Furthermore, a concession on the status and jurisdiction of the
Special Tribunal amounts to a legal concession and it is well-established that legal
28 12 of 2004.
MHLANTLA J
20
concessions that have been erroneously made are not binding. In Matatiele, this Court
held that “[i]t is trite that this Court is not bound by a legal concession if it considers
the concession to be wrong in law”.29 In Dengetenge, this Court held that “a concession
made by counsel on a point of law may be withdrawn if the withdrawal does not cause
any prejudice to the other party”.30
[46] From this, it is evident that these issues were squarely pleaded by the applicants
and considered by the Special Tribunal. They were not raised for the first time before
this Court in the applicants’ written submissions. It is further evident that the alleged
legal concessions are not binding and are in any event also not dispositive of the live
issues before us. Thus, the respondent’s contentions in this regard do not gain traction.
[47] Now that the preliminary issues have been dispensed with, I will determine the
question whether the Special Tribunal is a court.
[48] The starting point is section 166 of the Constitution, which provides:
“The courts are—
(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Court of South Africa, and any high court of appeal that may
be established by an Act of Parliament to hear appeals from any court
of a status similar to the High Court of South Africa;
(d) the Magistrates’ Courts; and
(e) any other court established or recognised in terms of an Act of
Parliament, including any court of a status similar to either the
High Court of South Africa or the Magistrates’ Courts.”
29 Matatiele Municipality v President of the Republic of South Africa [2006] ZACC 2; 2006 (5) SA 47 (CC); 2006
(5) BCLR 622 (CC) at para 67.
30 Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd [2013] ZACC 48;
2014 (5) SA 138 (CC); 2014 (3) BCLR 265 (CC) at para 55.
MHLANTLA J
21
[49] A plain reading of section 166(e) reveals that it applies to a court established or
recognised in terms of an Act of Parliament. It also includes a court of similar status to
the High Court or the Magistrates’ Courts. It does not apply to a tribunal.
[50] The Special Tribunal is established and constituted on an ad hoc basis. In terms
of section 2(1) of the SIU Act, the President as Head of the Executive has been given a
discretion to issue a proclama tion establishing a Special Tribunal. Section 2(2) also
makes clear that only the President is empowered to refer matters to the SIU or to
establish a S pecial Investigating Unit in order to investigate a matter. These features
are not those of a court of law. The Special Tribunal’s jurisdiction is also restricted to
civil proceedings that arise from the investigations and referral by the SIU, in terms of
section 2(2) of the SIU Act.
[51] It is so that the presiding officer of the Special Tribunal is a judge or retired
judge. However, the other members of the Tribunal are not always judges. In terms of
section 7(3),31 the additional members may be appointed from the ranks of judges or
acting judges , magistrates and advocates or attorneys. Section 7(5) empowers the
President to determine the period of a ppointment of the members of the
Special Tribunal. This means that the members have no security of tenure, something
enjoyed by judges.
[52] In the result, these factors ineluctably point to only one conclusion ; that the
Special Tribunal is not a court.
31 Section 7(3) of the SIU Act reads:
“Additional members of the Tribunal may be appointed by the President from the ranks of--
(a) judges or acting judges; and
(b) magistrates and advocates or attorneys of the Supreme Court of South Africa who have
been involved in the administration of justice for a period of at least seven years. ”
MHLANTLA J
22
Does the Special Tribunal have the power to adjudicate reviews?
[53] Having determined that the Special Tribunal is not a court, the next question is
whether the Special Tribunal has review powers. Section 6(1) of PAJA states: “any
person may institute proceed ings in a court or a tribunal for the judicial review of an
administrative action”. Section 1 of PAJA defines a tribunal as “any independent and
impartial tribunal established by national legislation for the purpose of judicially
reviewing an administrat ive action in terms of this Act ”. On a plain reading of
section 6(1) of PAJA, the Legislature refers to a court or tribunal. The word “or” must
be read to imply that the tribunal is different from a court. The definition of a tribunal
must mean that the Special Tribunal has no power to adjudicate a review of
administrative action under PAJA. This is simply because it has not been “established
by national legislation for the purpose of judicially reviewing an administrative action
in terms of [PAJA]”.
[54] The question then becomes: c an a tribunal , more specifically the
Special Tribunal, conduct a legality review?
[55] Recently, in Group Five,32 this Court had occasion to consider questions similar
to the ones currently before this Court, specifically, whether the Competition Tribunal
has review powers in matters arising out of the interpretation and application of chapters
2, 3 and 5 of the Competition Act.33 In Group Five, t he C ompetition Commission
(Commission) referred a complaint against Group Five Construc tion Limited
(Group Five), one of the construction companies alleged to have been involved in
collusive conduct concerning the construction of stadia for the 2010 Soccer World Cup,
to the Competition Tribunal for possible collusive and anti -competitive conduct in
contravention of section 4(1)(b)(i) and (ii) of the Competition Act.34 In response,
32 Competition Commission of South Africa v Group Five Construction Ltd [2022] ZACC 36; 2023 (1) BCLR 1
(CC).
33 89 of 1998.
34 Group Five above n 32 at para 4. Id.
MHLANTLA J
23
Group Five raised the defence that the Commission had previously granted it immunity
from prosecution through its Corporate Leniency Policy and that the Commissi on’s
referral was effectively oppressive, vexatious and mala fide.35
[56] Thereafter, Group Five launched a review application in the High Court against
the Commission’s decision to refer the complaint to the Competition Tribunal .36 In
response, the Commission sought an order to declare that the review proceedings
constituted an irregular step and, on that basis, to set them aside. The Commission’s
case was that the High Court lacked jurisdiction to hear the matter as it pertained to the
interpretation and application of Chapters 2, 3 and 5 of the Competition Act, matters
over which the Competition Tribunal has exclusive jurisdiction in terms of section 62
of the Competition Act.37
35 Id at para 5.
36 Id at para 6.
37 Id at para 7. See also section 62 which provides:
“(1) The Competition Tribunal and Competition Appeal Court share exclusive jurisdiction
in respect of the following matters:
(a) Interpretation and application of Chapters 2, 3 and 5, other than—
(i) a question or matter referred to in subsection (2); or
(ii) a review of a certificate issued by the Minister of Finance in terms
of section 18(2); and
(b) the functions referred to in sections 21(1), 27(1) and 37, other than a question
or matter referred to in subsection (2).
(2) In addition to any other jurisdiction granted in this Act to the Competition
Appeal Court, the Court has jurisdiction over—
(a) the question whether an action taken or proposed to be taken by the
Competition Commission or the Competition Tribunal is within their
respective jurisdictions in terms of this Act;
(b) any constitutional matter arising in terms of this Act; and
(c) the question whether a matter falls within the exclusive jurisdiction
granted under subsection (1).
(3) The jurisdiction of the Competition Appeal Court—
(a) is final over a matter within its exclusive jurisdiction in terms of
subsection (1); and
(b) is neither exclusive nor final in respect of a matter within its jurisdiction in
terms of subsection (2).
MHLANTLA J
24
[57] The High Court held that the matter pertained to the lawfulness and validity of
the referral, an issue that falls within the purview of section 62(2) (a) of the
Competition Act.38 The High Court further held that the Competition Tribunal only has
the powers afforded to it in the Competition Act, and these do not include the power to
conduct PAJA or legality reviews.39
[58] On appeal, the Supreme Court of Appeal held that the matter concerned the
lawfulness and validity of the initiation and referral of the Commission’s complaint, an
issue that is a jurisdictional question and thus a constitutional matter. 40
The Supreme Court of Appeal concluded that the High Court’s jurisdiction was not
ousted.41 Following the decision of the Supreme Court of Appeal, the Commission filed
an application for leave to appeal in this Court.
[59] In this Court , Majiedt J , writing for the majority, held that the
Competition Tribunal and Competition Appeal Court have exclusive jurisdiction over
matters that fall within the scope of section 62(1) of the Competition Act .42 However,
this does not extend to matter s referred to in section 62(2), over which the
Competition Appeal Court and the High Court have concurrent jurisdiction. 43 The
majority held that section 62(2), read together with section 62(3)(b), confers upon the
Competition Appeal Court and the High Court the jurisdictional power to decide
(4) An appeal from a decision of the Competition Appeal Court in respect of a matter
within its jurisdiction in terms of subsection (2) lies to the Constitutional Court, subject
to section 63 and its respective rules.
(5) For greater certainty, the Competition Tribunal and the Competition Appeal Court
have no jurisdiction over the assessment of the amount, and awarding, of damages
arising out of a prohibited practice.”
38 Group Five above n 32 at para 10.
39 Id.
40 Id at paras 11-7.
41 Id at para 18.
42 Id at para 125.
43 Id.
MHLANTLA J
25
“whether an action taken or proposed to be taken by the Competitio n Commission or
the Competition Tribunal is within their respective jurisdictions in terms of this Act”,44
as well as any constitutional matter. According to the majority, this is the power to
decide legality or vires challenges.45
[60] The majority further held that it is trite that both PAJA and legality review
applications are constitutional matters and that, by virtue of section 169(1)(a)(ii) of
the Constitution, the High Court had inherent jurisdiction to adjudicate them – a power
which is shared by the Competition Appeal Court owing to it having “a status similar
to that of the High Court” and by virtue of it being empowered by section 62(2) of the
Competition Act.46 The majority explicitly concluded that these powers – that is the
power to conduct PAJA and legality reviews – do not extend to the
Competition Tribunal.
[61] The majority elucidated that the Competition Act does not confer on the
Competition Tribunal the jurisdiction to deal with any of the matters in section 62(2).47
Thus, effectively, the Comp etition Tribunal does not enjoy any plenary review
jurisdiction.48 The judgment further stipulated that the Competition Tribunal does not
enjoy any review powers under PAJA in that section 6(1) of PAJA confines review
powers to a court or a tribunal and section 1 of PAJA defines “tribunal” as “any
independent and impartial tribunal established by national legislation for the purpose of
judicially reviewing an administrative action in terms of [PAJA]”. 49 The PAJA
definition of a tribunal therefore does not include a statutory body like the
44 Id at para 132.
45 Id at para 125.
46 Id at para 132.
47 Id at para 127.
48 Id at paras 118 and 127.
49 Id at para 131.
MHLANTLA J
26
Competition Tribunal.50 Ultimately, it was held that the Competition Tribunal does not
have the jurisdiction to adjudicate PAJA or legality reviews.51 Majiedt J stated:
“[T]he central issues here are not competition law issues, but legality or vires issues.
They fall squarely within the carve out in section 62(2)(a) – a question whether actions
are ultra vires the Commission. In this determination one must have regard to the
provisions of the Act, but that does not change the nature of the review, which remains
one of vires. And once the issue is one of vires, this is a matter over which the
Competition Appeal Court has concurrent jurisdiction with the High Court, to the
exclusion of the Tribunal.”52
[62] As I see it, the Special Tribunal is in the same position as the
Competition Tribunal – both are creatures of statute. As this Court said in Group Five,
“[the Competition Tribunal] is a creature of statute, limited in the exercise of its powers
to those afforded to it within the four corners of the Act. Absent any express powers in
the Act to do so, the Competition Tribunal has no authority in law to review the lawful
exercise of public power.”53
[63] Therefore, it is clear from the Group Five decision that we must consider the
legislation establishing the Special Tribunal to determine whether it is empowered to
make findings in respect of a legality review.
50 Id.
51 Id at para 125, it was held that—
“[T]he Competition Appeal Court’s non-exclusive jurisdiction may extend beyond a strict ultra
vires challenge. This legislative design is sensible because it is a court that must enjoy
supervisory jurisdiction over whether the Tribunal h as acted within its powers. The Tribunal
cannot itself decide that matter. In its wisdom, Parliament decided that questions of that kind
may be decided by the Competition Appeal Court and/or the High Court. The Tribunal cannot
be characterised as a cour t, because its actions ar e subject to review. The specialist nature of
the Tribunal and the Competition Appeal Court is important for the purposes of substantive
analysis and decision making, but that is not engaged in the same way when the question is one
of the lawful exercise of power. That is true generally in reviews concerning ultra vires issues.
For example, superior courts, like the High Court, the Supreme Court of Appeal and this Court
do not require special expertise to decide questions of vires in diverse fields like
telecommunications, information technology and fishing, to mention a few.”
52 Id at para 147.
53 Id at para 144.
MHLANTLA J
27
[64] In this regard we must consider the provisions of the SIU Act. The relevant
section in the case of the Special Tribunal is section 8(2) of the SIU Act which provides:
“A Special Tribunal shall have jurisdiction to adjudicate upon any civil proceedings
brought before it by a Special Investigating Unit in its own name or on behalf of a
State institution or any interested p arty as defined by the regulations, emanating
from the investigation by such Special Investigating Unit.”
[65] This, to me, is the first distinguishing feature of this case from Group Five as
there is no provision in the SIU Act which limits the powers of the Special Tribunal like
section 62 of the Competition Act. The Special Tribunal’s power of leg ality reviews
emanates from it s broad remedial powers in section 8 of the SIU Act . The wide
language employed in that section (“ any civil proceedings”) points to t he power of
legality review not being excluded from its power to adjudicate civil proceedings.54
[66] Secondly, the preamble of the SIU Act and section 4 make it abundantly clear
that the Act has as its objective, amongst others, the establishment of structures ,
including the Special Tribunal, to address the rampant corruption in all forms of
malfeasance in our country. The preamble of the SIU Act outlines its purpose as to—
“provide for the establishment of Special Investigating Units for the purpose of
investigating serious malpractices or maladministration in connection with the
administration of State institutions, State assets and public money as well as any
conduct which may seriously harm the interests of the public and of instituting and
conducting civil proceedings in any court of law or a Special Tribunal in its own name
or on behalf of State institutions; to provide for the revenue and expenditure of
Special Investigating Units; to provide for the establishment of Special Tribunals so as
to adjudicate upon civil matters emanating from investigations by Special Investigating
Units; and to provide for matters incidental thereto.”
[67] The functions of the SIU are set out in section 4(1)(c) of the SIU Act as follows:
54 My emphasis.
MHLANTLA J
28
“to institute and conduct civil proceedings in a Special Tribunal or any court 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 a State institution;
(ii) any relief relevant to any investigation; or
(iii) any relief relevant to the interests of a Special Investigating Unit.”
[68] From the preamble and section 4 of the SIU Act, it is clear that the legislative
intention was to cast a wide net over the scope of the proceedings the Special Tribunal
is empowered to adjudicate upon. Therefore, a legality review is not excluded from the
ambit of the jurisdiction of t he Special Tribunal as there is no ca rve-out of the powers
of the Special Tribunal to adjudicate over civil proceedings.
[69] In this regard, it is diametrically different to the Competition Tribunal to which
the carve-out in section 62(2) of the Competition Act applies, as this Court has held in
Group Five. Accordingly, t he Special Tribunal has the jurisd iction to adjudicate
reviews brought by the SIU and to grant an order setting aside an unlawful procurement
contract.
[70] In the result, I conclude that the Special Tribunal is not a court. However, it has
the power to adjudicate legality reviews.
Does the Special Tribunal have the power to issue forfeiture orders?
[71] The applicants have challenged the Special Tribunal’s powers to issue
preservation and forfeiture orders. They have asked this Court to interpret rule 26 of
the Special Tribunal Rules as well as regulation 5(c) of the SIU Regulations. Although
the applicants seek an interpretation in form, their argument in this respect is effectively
a constitutional challenge against rule 26 of the Special Tribunal Rules and
regulation 5(c) of the SIU Regulations. This Court has expressly refused to engage in
MHLANTLA J
29
an interpretative exercise where the effect thereof was to challenge the constitutionality
of the provision. In EFF,55 it stated:
“The applicants contend that a proper interpretation of the Trespass Act in conjunction
with PIE ought to yield a meaning that effectively renders it impermissible for one to
face criminal charges and a possible conviction flowing from an alleged violation of
section 1(1) of the Trespass Act where PIE applies or offers protection. It is also argued
that PIE has implicitly repealed the Trespass Act.
Since PIE owes its breath to section 26(3) of the Constitution, it is not unreasonable or
inappropriate to read a reference to PIE as a pointer to the inescapability of the role of
section 26(3) as the cardinal reference point in addressing this issue. The way the issue
was raised renders it unavoidable that the constitutionality of section 1(1) of the
Trespass Act be effectively pronounced upon, even if it might not be expressly referred
to as such. Truth be told, this is another way of seeking to have us declare this section
unconstitutional. This we will not do.
This approach, foisted upon us by the applican ts, is very difficult if not impossible to
manage to its intended end. They ought to have launched a frontal challenge to the
constitutionality of section 1(1). Nothing stopped them from doing so. But, they chose
not to. Instead, they opted for this intractable interpretive route. They would therefore
have to fall by their free choice.”56
[72] What was said in EFF equally applies in this matter. The applicants should have
launched a frontal attack o n the impugned rule and regulation and should have joined
the Minister of Justice to those proceedings, as oppose d to raising an interpretative
argument, which in substance is a constitutionality challenge. On this premise, this
Court cannot entertain this issue.
55 Economic Freedom Fighters v Minister of Justice and Correctional Services [2020] ZACC 25; 2021 (2) SA 1
(CC); 2021 (2) BCLR 118 (CC).
56 Id at paras 73-5.
MHLANTLA J
30
Did the Special Tribunal err in its factual findings?
[73] The applicants have enjoined this Court to make a determination on whether the
Special Tribunal erred in its factual findings concerning their conduct as it related to the
impugned procurement process. It is now trite that this Court will declin e to entertain
an appeal against the factual findings of a court where the dispute of fact is not
connected to “a separate constitutional issue”.57
[74] Having assessed the parties’ submissions on this aspect, it is plain that the factual
disputes arising out o f this matter are considerably divorced from the primary
constitutional issue on account of the fact that it is entirely possible to make a
determination on the status, powers and functions of the Special Tribunal without first
resolving the factual disputes. Consequently, there is no basis for this Court to consider
the factual findings of the Special Tribunal.
Conclusion
[75] In the result, the Special Tribunal is not a court. However, it has jurisdiction to
adjudicate legality reviews in terms of the SIU Act. It follows that the appeal must fail.
Order
[76] The following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed with costs, including the costs of two counsel.
57 Rail Commuters Action Group v Transnet Limited t/a Metrorail [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005
(4) BCLR 301 (CC) at para 52.
For the Applicants:
For the Respondent:
T Ngcukaitobi SC, M E Manala and
M D Sekwakweng instructed by MNM
and Associates Incorporated
M Chaskalson SC and G Ngcangisa
instructed by State Attorney, Pretoria