South African Association of Personal Injury Lawyers v Heath and Others

• Jurisdiction: South Africa
• Judge: Coetzee AJ
• Judgment Date: 04 April 2000
• Docket Number: 11918/99
• Hearing Date: 04 April 2000
• Court: Transvaal Provincial Division
• Citation: 2000 JDR 0402 (T)

Coetzee, AJ

In terms of the Eastern Cape Provincial Notice No 10 of 1995 the first respondent, a judge of the High Court of South Africa, was appointed to head a commission of inquiry into matters relating to State property in the Province of the Eastern Cape. His task was to inquire into alleged malpractices in the former Ciskei. At the time he was a judge of the Supreme Court of Ciskei. The commission became colloquially known as "the Heath Commission." In November 1996 the Special Investigating Units and Special Tribunals Act, no 74 of 1996 ("the Act"), was promulgated. The English text was signed by the President and it became operative on 20 November 1996. This is an act:

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"To provide for the establishment of Special Investigating Units for the purpose, of investigating serious malpractices or maladministration in connection with the administration of State institutions, State assets and public money as well as any conduct which may seriously harm the interests of the public, and for the establishment of Special Tribunals so as to adjudicate upon civil matters emanating from investigations by Special Investigating Units; and to provide for matters incidental thereto."

In the third and fourth respondent's answering affidavit the fourth respondent sketches the background to the policies of the act and the policy considerations underlying its provisions as follows:

"11.2

It is a regrettable and notorious fact that the levels of crime in South Africa are unacceptably high. One aspect of crime which requires special investigative measures relates to corruption and unlawful conduct involving state institutions, state property and public money. Very often, such conduct is perpetrated by public servants and state officials. The experience of other countries suggests that the investigation of conduct of this nature requires special measures beyond the routine investigations conducted by conventional law enforcement agencies.

11.3

The need for special investigating units to investigate corruption flows, inter alia, from the fact that those under investigation are sometimes senior state officials,

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including policemen and policewomen and members of the law enforcement agencies. Experience in other countries, particularly the United States, suggests that the conventional law enforcement agencies are not best suited to conduct such investigations.

11.4

South Africa has a number of institutions in place which could be utilized to combat serious maladministration, corruption and misappropriation of state funds such as commissions of Inquiry, the Office for the Investigation of Serious Economic Offences (OSEO), the Public Protector and Courts of Law. While all these institutions may be utilized to some extent to curb such problems, they lack the necessary cohesion to produce satisfactory results and are inadequately equipped to deal with the problem. Commissions of Inquiry generally do not have the "teeth" to enforce their recommendations, and irregularities or delicts exposed by them may result in litigation that is both costly and can take years to finalise in the courts. OSEO is primarily involved in the investigation of criminal offences and does not form part of the prosecuting authority. The Public Protector deals primarily with hundreds of individual complaints and, although that office enjoys considerable powers of investigation, it can hardly be expected to provide the resources to deal with those matters in respect of which Commissions of Inquiry are appointed from time to time. It also lacks adjudicative powers to enforce its findings. Even the ordinary civil courts do not provide a speedy or cost-effective

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manner of dealing with corruption - such courts have to adjudicate upon thousands of disputes, and it may take a considerable period of time to have a matter placed on the court's roll.

11.5

another reason for the use of special investigative units concerns the sometimes sophisticated nature of corruption, maladministration and the like, and the need for people with the requisite expertise to investigate often complex matters involving financial fraud.

11.6

One of the prime tasks of the Special Investigating Unit is to conduct investigations into the matters within its mandate for the purposes of recovery of money or property which has been misappropriated. Since the investigations have an eye to ultimate recovery, it is also important that the Unit should be staffed by persons with the appropriate legal skills.

11.7

Without minimising the impact of crime generally, it should be emphasised that corruption, maladministration and misappropriation or abuse of public money affect society as a whole. When money designated for the essential running of state institutions such as hospitals and schools is misappropriated, society at large is made to suffer because there are less resources available for social upliftment. Inevitably, it is the poor and the vulnerable who suffer the most.

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11.8

Against this background, the Act seeks to create an extraordinary and comprehensive mechanism for dealing decisively with corruption. It contemplates the establishment of two innovative institutions: (a) a Special Investigating Unit, with powers to investigate allegations of corruption and maladministration; and (b) a Special Tribunal, with jurisdiction to adjudicate upon any civil disputes brought before it by the Special Investigating Unit. These two institutions give teeth to the government's commitment. to root out corruption, by ensuring that there will be effective investigation into malpractices and speedy remedial action. In short, the Act provides a mechanism through which allegations can be comprehensively and swiftly investigated, and through which remedial steps - which would ordinarily have to be pursued through the courts of law - can be taken swiftly and cost-effectively.

11.11

As a matter of policy, it was considered appropriate to ensure that the Special Investigating Unit should be headed by a person whose integrity was beyond reproach. This was especially important given the nature and ambit of the tasks which the Unit would be required to perform. It was for this reason that it was thought desirable that these tasks should be supervised by a judge or acting judge of the High court. Not only was the view taken that a judge or acting judge would

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be possessed of the necessary integrity, but it was also believed that a judge or acting judge would have the requisite skills and expertise to perform the functions envisaged by the Act."

Acting in terms of section 14 (1) of the Act, the former president of South Africa dissolved the Heath Commission by means of Proclamation R24 of 1997, and established, in its place, a special investigating unit, being the second respondent, headed by the first respondent, as well as a special tribunal. This proclamation reads as follows:

"SPECIAL INVESTIGATING UNITS AND SPECIAL TRIBUNALS ACT, 1996

(ACT NO 74 OF 1996)

1.

Under section 14 (1) of the Special Investigating Units and Special Tribunals Act, 1996 (Act no 74 of 1996), and upon the request of the executive authority of the Eastern Cape, and because I am of the opinion that the objects of the commission of Inquiry into Matters relating to State Property in the Province of the Eastern Cape established by Eastern Cape Provincial Notice No 10 of 1995, can better be achieved by a Special Investigating Unit and a Special Tribunal, I hereby dissolve the said Commission and establish a Special Investigating Unit and a Special Tribunal in its place.

2.

Under section 3 (1) of the said Act, I hereby appoint Mr Justice Willem Hendrik

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Heath as head of the Special Investigating Unit.

3.

Under section 7(2) of the said Act, I hereby, after consultation with the Chief Justice, appoint Mr Justice Gerhardus Petrus Christiaan Kotzé as Tribunal President.

4.

The terms of reference of the Special Investigating Unit are-

(1)

to examine and report to me on-

(a)

any acquisitive act, transaction, measure or practice, pending or concluded, having a bearing on State or public property or public money which belongs to or vests in a State institution or which, at any time prior to 27 April 1994, belonged to or vested in any former State or territory that now forms part of the Republic and which public property or public money, were it not for such acquisitive act, transaction, measure or practice, could have belonged to, or vested in, or could have been liable to be allotted to a State institution;

(b)

any interest in, or in respect of, any property contemplated in subparagraph (a);

(c)

any person, establishment, institution or society in or by which public property or public money contemplated in subparagraph (a) may be accumulated or may have been used; and

(d)

any real or personal right to property contemplated in

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subparagraph (a) or to the fruits of such property that have accrued or will accrue to any person, establishment, institution or society other than a State institution.

(2)

to inquire into, consider and report to me on matters contemplated in subparagraph (1) which has taken place between 26 October 1976 and the date on which the special Investigating Unit dissolved; and

(3)

to inquire into, consider and report to me on any matter contemplated in section 2 (2) of the said act, which is incidental to the matters referred to in subparagraphs (1) and (2) and which is revealed by any of the investigations of the Special Investigating Unit, and the generality of this subparagraph is not limited by subparagraphs (1) and (2).

5.

The seat of the Special Investigating Unit is King William's Town.

6.

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