Ramaphosa set to revive Special Tribunal

Four months after Judge Lebogang Modiba, the head of the Special Tribunal, announced her retirement, the Department of Justice has taken steps to replace her and other judges. Photo: Oupa Nkosi for Judges Matter (used with permission)

• The head of the Special Tribunal which hears applications for asset forfeiture by the Special Investigating Unit, left office at the end of June.
• Another Tribunal judge has also retired, and remaining judges have not been active.
• As a result, the SIU, tasked with combating corruption, has been unable to take new matters to the Tribunal.
• The President will now appoint new judges from the list provided to him.

A list of recommended judges to serve on the Special Tribunal, which has effectively collapsed, has been sent to President Cyril Ramaphosa, GroundUp has confirmed.

The Special 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.

Ramaphosa must now consult with the Chief Justice (currently Judge Raymond Zondo) before appointing new judges to the Tribunal.

It has taken four months since the resignation of Tribunal head Judge Lebogang Modiba at the end of March - which was effective at the end of June - for steps to be taken to appoint new judges and a head of the Tribunal.

Besides Modiba, another Tribunal judge has retired, and the other judges had not been active in hearing matters for some time, which left Modiba to handle the majority of matters before her resignation.

Before leaving office, Modiba advised former Justice Minister Ronald Lamola of a number of concerns, including the lack of active judges on the Tribunal, the status of the Tribunal in light of a Constitutional Court judgment that it was technically not a court, and her personal workload.

The Special Tribunal is one of the most effective weapons in the government’s anti-corruption arsenal, and its collapse has been a major setback for the SIU, as it has been unable to take new matters to the Tribunal.

Although the Tribunal has released at least two judgments since it stopped operating, both were outstanding from earlier hearings.

Special Tribunal judges are appointed by the President in consultation with the Chief Justice. But in practice, the Justice Ministry sources and compiles a list of judges which is forwarded to the President for his consideration.

Tsekiso Machike, spokesperson for the Justice Ministry, confirmed that a memorandum (compiled by the Ministry) containing the names of the recommended judges to serve in the Special Tribunal “has been sent to the Presidency”.

President Ramaphosa’s spokesperson, Vincent Magwenya, confirmed this and said: “The appointments will be made as soon as possible so that the Tribunal can proceed with its work.”

After GroundUp’s story appeared in mid-July, a Department of Justice source said there was a flurry within the department and the ministry, and within days a list was “floating around with judges’ names” to serve on the Tribunal.

The source, who would only speak on condition of anonymity, said the news of Modiba’s resignation took many people in the department and ministry by “complete surprise”.

“Not Lamola’s fault”

Sources close to the process blamed former Justice Minister Ronald Lamola, now the Minister of International Relations and Cooperation in the Government of National Unity, for not taking action on Modiba’s concerns.

But a source close to Lamola denied he had ignored Modiba. “The Minister was in contact with her and gave an assurance that the Department of Justice would attend to the issues she raised. He also referred the matter to the Department to handle,” the source said.

The Special Tribunal falls under the Ministry of Justice but, operationally, the Department of Justice funds its day-to-day operations. Tribunal staff are Department of Justice employees, and its website is hosted on the department’s website.

Tribunal judges serve in different High Court divisions and are not paid extra for their Tribunal services, which, before the Constitutional Court judgment, was seen as a prestigious judicial appointment.

Silence from Department of Justice

Department of Justice spokesperson Kgalalelo Masibi read but then ignored questions about the appointment of new judges, sent via WhatsApp. She also ignored a reminder about the questions.

When she was asked for comment on GroundUp’s previous story about the Tribunal debacle, Masibi referred questions to SIU spokesperson Kaizer Kganyago. But when it was pointed out to her that her department, not the SIU, was responsible for the Tribunal, she read the message but failed to respond.

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