Special Investigations Unit Tribunal: What Journalists Need to Know

February 25, 2019

South African President Cyril Ramaphosa has announced the establishment of a Special Investigations Unit (SIU) Tribunal in his ongoing bid to demonstrate faster movement in his fight against corruption.

The Special Tribunal will fast-track matters the SIU refers to it for civil litigation following the conclusion of their investigations. Image: thepraxisproject.org

 

What is an SIU Special Tribunal?

 

“A tribunal is a special court or committee that is appointed to deal with particular problems.”

- Collins Dictionary

 

The president gets the powers to establish a special tribunal from section 2 of the Special Investigating Units and Special Tribunals Act 74 of 1996.

 

According to the act, a Special Tribunal “shall be independent and impartial and perform its functions without fear, favour or prejudice and subject only to the Constitution and the law”.

 

Special Tribunals also have a range of powers similar to courts of law such as making rulings, issuing interdicts, and can subpoena people to appear them it to give evidence.

 

The Special Tribunal is even empowered to issue warrants of arrest and direct subpoenaed people to be brought before it.

 

How do journalists report on the work of the Special Tribunal?

 

Not a lot of detail has been fleshed out by the presidency on the nuts and bolts of this tribunal. The law, however, does give an idea of how it will conduct its business.

 

Special Tribunals established under the Special Investigating Units and Special Tribunals Act are open to the public.

 

For journalists this means court reporting rules apply. And like in other court proceedings, persons testifying before the tribunal also take an oath or affirmation before they can testify or be questioned during proceedings.

 

The law also requires that a record of the proceedings be kept.  The judgments and orders of the Special Tribunal, under normal circumstances, carry the same weight as the Supreme Court.

 

Can proceedings be held behind closed doors?

 

Yes. But the Special Tribunal must satisfy itself that this is done in the interest of justice.

 

This can also be done if there’s a likelihood that holding proceedings in the open will endanger any person. The person likely to be exposed to harm by open proceedings has to bring an application before the tribunal. This application is also heard behind closed doors.

 

What about media blackouts?

 

Unfortunately. But only partial blackouts can be directed by a Special Tribunal.

 

There must be good reasons to justify a ban on publishing information and they should relate to the possible harm referred to earlier. Under these circumstances, the Tribunal can put a gag order on information relating to proceedings held behind doors.

 

It also has the powers to bar anyone from publishing information, identifying witnesses or parties to the proceedings.

 

The gag order is not unconditional. It can only be put in place if the Tribunal authorises the publication of information in a manner that is deemed just and equitable.

 

Who is in the tribunal?

 

President Ramaphosa has appointed Judge Gidfonia Mlindelwa Makhanya as the President of the Tribunal for a term of three years. Ramaphosa had to consult Chief Justice Mogoeng Mogoeng to before he could make the appointment.

 

Judge Gidfonia Mlindelwa Makhanya is no newcomer to the administration of justice. Makhanya joined the Johannesburg Bar in 1990 and was appointed to the Transvaal Provincial Division in 1999.

 

In 2011 Judge Makhanya was appointed as a member of the Independent Electoral Commission (IEC). The Electoral Commission Act of 1996 requires that of the five commissioners of IEC one member must be a judge appointed by the president. His term at the commission ended in April 2018.

 

The act says additional members should be judges or acting judges; magistrates and advocates or attorneys of the Supreme Court of South Africa. They should have at least seven years of experience in the administration of justice.

 

Additional members to the Tribunal

Judge Icantharuby Pillay

Judge Johannes Eksteen

Judge Selewe Peter Mothle

Judge Lebogang Modiba

Judge Thina Siwendu

Judge David van Zyl

Judge Sirajudien Desai

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