This blog was co-authored with Felix Le Roux, Candidate Attorney

On 10 March 2023 the Constitutional Court held that the Special Tribunal, established in terms of section 2(1)(b) of the Special Investigating Units and Special Tribunals Act, 1996 (the SIU Act) to adjudicate civil proceedings emanating from an investigation by the Special Investigating Unit (SIU), has jurisdiction to conduct legality reviews.     

The Special Tribunal had declared a procurement contract awarded by the Gauteng Department of Health for personal protective equipment (PPE) unlawful and set it aside.  The Constitutional Court was required to decide whether the Special Tribunal is a court with judicial review powers. 

The Constitutional Court highlighted the following characteristics of the Special Tribunal which indicated that it is not a court:

  • The Special Tribunal’s jurisdiction is confined to civil matters arising from an investigation and referral by the SIU;
  • The Special Tribunal is established on an ad hoc basis and only the President is empowered to refer matters to the SIU or establish an SIU;
  • Members of the Special Tribunal are often not judges; and
  • The members of the Special Tribunal do not enjoy security of tenure as the President determines their period of appointment.

In addition, the list of courts in section 166 of the Constitution does not include tribunals.  Accordingly, the Constitutional Court ruled that the Special Tribunal is not a court.  

The Constitutional Court interpreted the definition of a tribunal in section 1 of the Promotion of Administrative Justice Act, 2000 (PAJA) to mean that the Special Tribunal is not empowered to adjudicate PAJA reviews as it has not been established for the purpose of reviewing administrative action in terms of PAJA.  However, the Constitutional Court ruled that the broad remedial powers of the Special Tribunal in section 8(2) of the SIU Act to adjudicate upon any civil proceedings emanating from an SIU investigation do not exclude the power to conduct a review under the principle of legality.  The Constitutional Court indicated that the Special Tribunal’s power to conduct legality reviews is consistent with the objective of the SIU Act to establish structures that address the scourge of corruption in our country.    

The Constitutional Court’s judgment has the curious effect that the same administrative act would be subject to a legality review in the Special Tribunal and primarily a PAJA review in the High Court, which leads to a further bifurcation of our administrative law.  Nevertheless, the Constitutional Court’s confirmation that the Special Tribunal is empowered to review and set aside unlawful procurement contracts is a positive development in the country’s efforts to eliminate corruption.

Ledla Structural Development (Pty) Ltd and Others v Special Investigating Unit (CCT 319/21) [2023] ZACC 8 (10 March 2023)