A re-evaluation of the special investigating unit and special tribunal in South Africa

Abstract

The main focus of this dissertation is to critically evaluate the functioning of the Special Investigating Unit ('SIU') and Special Tribunal in the execution of its mandate, which includes the fight against fraud and corruption on state institutions in South Africa. The dissertation seeks to explore the importance of a functional SIU and Special Tribunal in the eradication of maladministration, fraud and corruption on state institutions in terms of the Special Investigation Units and Special Tribunals Act 74 of 1996 ('the SIU Act'). The questions investigated by this dissertation is whether the Special Tribunal established in terms of the SIU Act is designed to perform administrative functions or purely judicial functions; how the SIU institutes civil proceedings on behalf of the state institutions and whether the SIU is completely functional in its present form. The main findings of the dissertation, among others are that the SIU Tribunal is a purely judicial tribunal. However, the SIU performs administrative functions relating to the mandate assigned to the SIU by the President in the proclamation. Furthermore, the SIU and Special Tribunal derive their mandate from the SIU Act and operate within the ambit of the terms of reference in the empowering proclamations. Based on these findings, among others, the dissertation concludes that although the Special Tribunal is presently not composed as is provided for in terms of s 7 of the SIU Act, or functional like the SIU Act envisages, the Special Tribunal is a purely judicial tribunal. This view is based on the fact that the Special Tribunal consists of officers of court ranging from judges; magistrates; advocates or attorneys of the Supreme Court of South Africa. The Special Tribunal may furthermore make any order which it deems appropriate to give effect to its decision. It functions in the same way as a court according to rules made by its President. The Special Tribunal has jurisdiction to adjudicate upon any justiciable civil disputes (arising out of civil proceedings instituted in that Special Tribunal) emanating from the investigations by the SIU. The SIU must have acted within the ambit of its terms of reference as set out in the proclamation referred to ins 2(3) of the SIU Act. The research, finally, finds that in the absence of a fully functional Special Tribunal, the SIU is not fully effective in the manner in which the legislature intended it to be as envisaged by the SIU Act. What was envisaged by the SIU Act was simply a fully functional Special Tribunal. Against this background, the main recommendation of this dissertation, among others, is that the SIU and Special Tribunal should amend their empowering legislation, namely the SIU Act in order to give them more powers for the proper performance of their functions. A fully functional Special Tribunal will provide benefits to the SIU by it being more effective, with improved turnaround times on investigations and civil litigation, and should be outcomes orientated.