Konyn and Others v Special Investigating Unit

• Jurisdiction: South Africa
• Judgment Date: 19 March 1998
• Citation: 1999 (1) SA 1001 (TkH)

Konyn and Others v Special Investigating Unit
1999 (1) SA 1001 (TkH)

1999 (1) SA p1001

Citation	1999 (1) SA 1001 (TkH)
Case No	A550/97
Court	Transkei High Court
Judge	Somyalo JP, Madlanga J, Locke AJ
Heard	February 13, 1998
Judgment	March 19, 1998
Counsel	S Alkema (with him GJJ Beukes) for the appellants; GW Visagie for the respondents

Flynote : Sleutelwoorde B

Special Investigating Unit — Special Investigating Unit established by President in terms of Special Investigating Units and Special Tribunals Act 74 of 1996 — Functions of — Validity of — Unit instituting proceedings against appellants before Special Tribunal established in terms of s 2(1) of Act — Special Investigating Unit not having C authority to institute proceedings in Special Tribunal, as power so to institute proceedings not conferred by terms of reference, even though provision made in Act for such Special Investigation Units to institute civil proceedings in Special Tribunal.

Special Investigating Unit — Special Investigating Unit established by President in terms of Special Investigating D Units and Special Tribunals Act 74 of 1996 — Special Tribunal established in terms of s 2(1) — Semble: Parties brought before Tribunal entitled to 'fair public hearing' as contemplated in s 34 of Constitution of the Republic of South Africa Act 108 of 1996. E

Special Investigating Unit — Special Investigating Unit established by President in terms of Special Investigating Units and Special Tribunals Act 74 of 1996 — Regulations made in terms of s 11 of Act and published in Government Notice R420 of 1997 — Semble: Minister entitled to make regulation after consultation with heads of Special Investigating Units and Special Tribunals — Heads of Special Investigating Unit and Special Tribunal F appointed on 12 March 1997 and thus in existence when regulations made — Regulations not made after consultation with them — Regulations ultra vires.

Special Investigating Unit — Special Investigating Unit established by President in terms of Special Investigating Units and Special Tribunals Act 74 of 1996 — Special Tribunal established in terms of s 2(1) — Semble: Rules G regulating conduct of proceedings in Special Tribunal published in Government Notice 894 of 1997 in Government Gazette 18054 of 6 June 1997 — Object of such rules set out — Having regard to ss 9 and 11 of Act, regulations made in terms of s 11 of Act and published in Government Notice R420 of 1997 not intended to H prescribe process, or form and content thereof, by which proceedings to be brought before Special Tribunal — To extent that regulations purport to do so, they would be ultra vires enabling legislation.

Special Investigating Unit — Special Investigating Unit established by President in terms of Special Investigating Units and Special Tribunals Act 74 of 1996 — Special Tribunal established in terms of s 2(1) — Rules regulating I conduct of proceedings in Special Tribunal published in Government Notice 894 of 1997 in Government Gazette 18054 of 6 June 1997 — Semble: Such rules read with reg 7 of regulations made in terms of s 11 of Act and published in Government Notice R420 of 1997 so vague as to preclude right to fair trial. J

1999 (1) SA p1002

Special Investigating Unit — Special Investigating Unit established by President in terms of Special Investigating A Units and Special Tribunals Act 74 of 1996 — Special Tribunal established in terms of s 2(1) — Civil proceedings instituted before Tribunal — Semble: Fundamental to process of adjudication of such disputes that material facts of cause of action be clearly pleaded — Unless Special Investigating Unit pleads its cause of B action with required particularity, defendants unable to prepare defences properly — Such would infringe right to fair hearing.

Headnote : Kopnota

The respondent had been established by the President in terms of s 2(1) of the Special Investigating Units C and Special Tribunals Act 74 of 1996 ('the Act'). During May 1997 the respondent served notices on the appellants, indicating its intention of instituting proceedings against them in a Special Tribunal (also establsihed in terms of s 2(1)) as contemplated in ss 4(1)(a), 4(1)(c) and 5(5) of the Act. The appellants instituted proceedings in the High Court to interdict the respondent from continuing with its proceedings against the D appellants before the Special Tribunal. The application was dismissed on the basis that the matter had first to be determined by the Special Tribunal. The respondent then commenced proceedings against the appellants in the Special Tribunal, which decided the matter against the appellants. The appellants accordingly appealed to a Full Bench of the High Court in terms of s 8(7) of the Act.

Section 4(1) of the Act confers various functions on a Special Investigating Unit 'within the framework of its E terms of reference as set out in the proclamation referred to in s 2(1)', inter alia to investigate certain allegations (s 4(1)(a)), to perform such functions as the President might request (s 4(1)(e)), to report on the progress made in the investigation (s 4(1)(f)), to submit a final report to the President on conclusion of the investigation (s 4(1)(g)), and twice a year to submit a report to Parliament on the investigations by the Unit (s F 4(1)(h)). Section 2(2) contemplates various matters which might be subject to such investigation, inter alia, any alleged 'unlawful, irregular or unapproved acquisitive act, transaction, measure or practice having a bearing upon State property' (s 2(2)(d)). Section 4(1)(b) provides that it is the function of the Unit 'to collect evidence regarding acts or omissions which are relevant to its investigation and, if applicable, to institute G proceedings in a Special Tribunal against the parties concerned'. Section 5(5) of the Act provides as follows: 'A Special Investigating Unit may institute civil proceedings in a Special Tribunal if, arising from its investigation, it has obtained evidence substantiating any allegation contained in s 2(2).'

Acting in terms of s 2(1) of the Act, the President issued Proc R24 of 1997 governing the conduct of the H respondent. The terms of reference of the respondent therein set forth directed it to 'examine', 'inquire into', 'consider' and 'report' to the President on certain matters. The President had relied only on the ground mentioned in s 2(2)(d) of the Act for the establishment of the respondent. It was in pursuance of this investigation that the respondent had instituted proceedings against the appellants in the Special Tribunal. I

Held, that, as the functions of a Special Investigating Unit provided for in s 4 of the Act were limited by the terms of reference incorporated in the proclamation (to examining, inquiring into, considering and reporting to the President), the functions mentioned in s 4(1)(a), (f), (g) and the first part of s 4(1)(b) had accordingly been authorised by the terms of reference as set out in the proclamation. (At 1010H—I.) J

1999 (1) SA p1003

Held, further, that there was a clear intention on the part of the Legislature that certain functions could only A be exercised by a Special Investigating Unit if and when authorised thereto by the terms of reference as contained in a Presidential proclamation. (At 1010I/J.)

Held, further, that, as the respondent was only authorised 'to examine', 'to inquire into', 'to consider' and 'to report' on those matters mentioned in Proc R24, it had no authority to institute proceedings before a Special B Tribunal as it had purported to do. The respondent's power to institute proceedings before a Special Tribunal under s 4(1)(b) of the Act would only come into operation and could only be acted upon by it when those powers were specifically conferred on it by its terms of reference as set out in the proclamation and published in the Gazette. (At 1011E—H.) C

Held, further, as to the respondent's reliance on s 5(5) of the Act, to the effect that a Special Investigating Unit could institute civil proceedings in a Special Tribunal if, arising from its investigation, it had obtained evidence substantiating any allegation contemplated in s 2(2), that the powers of a Special Investigating Unit set out in s 5 specified how the functions referred to in s 4, as limited by the terms of reference published in the proclamation, could be performed. A Special Investigating Unit did not have unlimited powers to obtain D evidence 'substantiating any allegation contemplated in s 2(2)' (see s 5(5)). Those powers were also limited by the terms of reference as published in the proclamation. The power provided for by the Legislature in s 5(5) could not be read independently of ss 2(1), 2(3) and 4(1) of the Act. (At 1011H—1012A/B.) E

Held, further, that the Act clearly gave the President, by way of the setting out of the terms of reference of a Special Investigating Unit and such particulars regarding the establishment of a Special Investigating Unit as he might deem necessary, the right to (a) decide what matters contemplated in s 2(2) of the Act should be investigated and (b) what functions should be performed arising out of those investigations. F (At 1012C—D.)

Held, further, that in the present matter the President had clearly decided in the exercise of his discretion not to authorise the institution of proceedings by the respondent arising out of its investigations. The respondent first had to examine, inquire into and consider all the matters which it was required to investigate and then report on same to the President. (At 1012H—I.)

Held, accordingly, that the respondent had no authority to institute proceedings before the Special Tribunal as G it had purported to do. The proceedings instituted by the respondent were accordingly ultra vires and of...