This as the department grapples with the circumstances leading to the delay in the commencement of the Commission of Inquiry into Criminality, Political Interference, and Corruption in the Criminal Justice System – known as the Madlanga Commission.

The Minister made the announcement during a media briefing on Tuesday afternoon.

She explained that she was notified on Friday that the commission would not be able to commence hearings on 1 September as previously announced due to delays on the side of the department.

“It was clear at the end of the day that it is practically impossible to intervene in procurement process without compromising what is required by law as compliance with PFMA and SCM policies.

“I immediately reported the situation to…President [Cyril Ramaphosa] who was travelling…[and] we immediately agreed that I will do a full report to him which was done by Friday.

“In the process, the President then delegated to the Minister of Justice…powers to institute disciplinary proceedings against the [DG] and this decision has been communicated to him this afternoon,” Kubayi said.

The department’s ICT Deputy Director General (DDG), Jabu Hlatshwayo, has also been placed on immediate suspension pending an investigation and disciplinary process.

“This is because of the failures and lapses on the system and also not being able to do due diligence in ensuring that the commission starts on time,” she added.

Ploughing ahead

Kubayi emphasised that despite these delays, the commission “has commenced with preliminary work that includes interaction with their witnesses”.

“We remain committed to ensuring that the commission begins its work without further delays and to strengthening the operational efficiencies of the department to prevent similar setbacks in the future,” Kubayi said.

During the question-and-answer session, the Minister expressed disappointment that the commission would not begin hearings as previously announced.

“I am disappointed like many South Africans. If you remember, General Mkhwanazi made reference even to prosecutors. What we are looking for, including myself as the Minister, is to look at rebuilding the brand of NPA [National Prosecuting Authority] for example and also building confidence in the JCPS [Justice, Crime Prevention and Security Cluster].

“If this [commission] is not done and concluded in time, it will continue to have a cloud over our heads and it will also impede on our work. It can act as demoralising for the men and women who are committed in the [cluster] to work effectively.

“The President is committed and that’s why he…asked us to go public and explain in the most transparent and accountable manner to say what has led to where we are and the consequences. [We are] rebuilding public confidence in our work,” Kubayi said.

A look back

The establishment of the commission – chaired by retired Constitutional Court Justice Mbuyiseli Madlanga – was announced by President Ramaphosa following allegations made by KwaZulu-Natal Police Commissioner Lieutenant General Nhlanhla Mkhwanazi.

Mkhwanazi made several allegations about an alleged criminal syndicate that has spread influence into law enforcement, the NPA and intelligence services.

Mkhwanazi also made allegations against the Police Minister – alleging that Mchunu colluded with criminal elements to disband the Political Killings Task Team based in KwaZulu-Natal.

Mchunu has since been placed on leave of absence with Professor Firoz Cachalia sworn in as Police Minister earlier this month.

The commission’s hearings will be held at the Brigitte Mabandla Justice College starting at a date to be announced by the commission.

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Victor was not consulted when the decision to move the Tribunal was initiated as it was before she was appointed in November last year, according to a response to questions by the Department of Justice and Constitutional Development (DOJCD).

She was apparently also not consulted about the contents of the gazette notice, even though it was issued in her name.

The gazette reads: “the Special Tribunal President has made the following amendment”.

DOJCD spokesperson Kgalalelo Masibi told GroundUp, “The relocation was initiated based on recommendations from the former President of the Tribunal [Judge Lebogang Modiba], with the Department of Public Works and Infrastructure (DPWI) registering the request.”

The minister was briefed and approved the relocation in February 2025, she said.

The decision aligned with the DOJCD’s “broader strategy to improve access to justice, strengthen institutions, and enhance the functionality of key entities like the Special Tribunal”, said Masibi. She claimed that space at the current office had become “increasingly constrained”.

The Centre Walk Building in the Pretoria city centre was identified as a suitable option as it offered “ready-to-occupy space that aligns with the operational and administrative needs of the Tribunal”, said Masibi.

“For physical hearings, any appropriate court, including Booysens, can still be used when necessary”.

The decision to relocate the court from the government-owned Booysens Magistrates’ Court in southern Johannesburg to a privately owned office in a building in the centre of Pretoria has drawn criticism.

Judges Matter legal researcher Mbekezeli Benjamin said, “It is worrying to see the relocation of the Special Tribunal in circumstances that do not seem justified. For the last six years, the Special Tribunal has functioned well at the Booysens Court, where its judges, staff and legal practitioners have had easy access.”

Relocating the Tribunal to Pretoria will “cause enormous inconvenience and be a further blow to its effectiveness”, he said.

Benjamin raised the concern that the Special Tribunal is dependent on DOJCD staff to administer it.

“The fact that such a decision seems to have been taken without sufficient consultation with the Tribunal’s judicial officers and staff underscores the urgency with which the Special Tribunal must now be established as an independent judicial Institution, with its own premises, staff and resources. A failure to do so places the fight against corruption at great risk,” said Benjamin.

Fixing what is not broken

Opened in 2019, the Booysens court has ten courtrooms and extensive office and parking facilities. The Tribunal has no problem with court availability for hearings, GroundUp was told.

The Tribunal has three full-time employees: Judge Victor and assistant director Mpho Mashitisho, who both reside in Johannesburg, and a secretary who lives in Pretoria.

The Tribunal’s new Pretoria office will be operational from 1 September, according to the gazette notice. But the office in Booysens has already been reallocated and all the Tribunal’s files moved to Pretoria.

This means that anyone wanting to file in-person complaints will be unable to do so until the new office is operational.

Furthermore, in Pretoria the northern division of the Gauteng High Court serves the entire northern part of the province as well as part of the North West province and has a heavy case load.

Also, the Pretoria central magistrates’ court is still not fully operational after a fire gutted part of the historic building in October 2010, destroying 17 court rooms.

Tribunal rebuilt after collapse

Judge Victor was appointed in November last year. Her appointment came months after the effective collapse of the Tribunal following the resignation of Judge Lebogang Modiba, the former head.

Besides Modiba’s resignation, another Tribunal judge had retired, and the other judges had not been active in hearing matters for some time. This left Modiba to handle the majority of matters before she left in June 2024, resulting in a backlog.

Because of the collapse of the Tribunal, the SIU was forced to take applications for preservation orders to the High Court, where it had to navigate busy court rolls.

President Cyril Ramaphosa eventually appointed Judge Victor and five other judges to hear cases brought before it by the Special Investigating Unit (SIU). The judges are based in different parts of the country and many of their matters are heard virtually.

Anti-corruption weapon

One of the most effective weapons in the government’s anti-corruption arsenal, the Tribunal was established to hear applications by the Special Investigating Unit (SIU) to freeze and confiscate the proceeds of corruption, including money, properties and vehicles. The Tribunal has been based in the Booysens Court since its inception.

The Tribunal is central to the work of the SIU and was established to ensure the unit could swiftly apply for preservation orders without having to navigate busy court rolls to get matters before the High Court.

The partnership between the SIU and the Special Tribunal is both symbiotic and statutory: the SIU investigates and initiates civil action; the Special Tribunal decides and enforces remedies.

This article was republished with permission from GroundUp, the original article can be found here.

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“It is inconceivable that 29 years after this section [of the Drugs and Drug Trafficking Act] was declared unconstitutional, it would still find application in a South African court,” Acting Deputy Judge President of Mpumalanga Takalani Ratshibvumo said in a recent ruling.

He ordered that the judgment be brought to the attention of the Chief Magistrate “to help identify areas in need of training and refresher courses”.

He also ordered court managers in the district to find out why it had taken four months to respond to queries from the review court and to report back to the High Court.

Celucolo Michael Mkhonza was convicted by the unnamed acting magistrate in the Mayflower Magistrate’s Court of dealing in drugs in May 2023. He was sentenced to three-years imprisonment, wholly suspended, and a fine of R5 000, alternatively 24 months in jail.

In September 2023, the matter came before the High Court in an automatic review. Queries were sent to the trial magistrate who only responded to them in February 2024.

Judge Ratshibvumo said from the record of the proceedings it was clear Mkhonza had pleaded guilty to being in possession of 3.26 kg of dagga.

Mkhonza had denied that he was “dealing”, saying that someone had given it to him to take to another person.

The magistrate, in handing down judgment, commented that although Mkhonza had “not directly admitted that he was dealing in drugs”, the presumption in the Act was “very clear that the weight of dagga that he was carrying is presumed that he was dealing in drugs”.

The magistrate had been asked to explain how he had come to this conclusion.

In his explanation, he said he had only now realised that that section of the Act, which deemed that a person in possession of drugs over a certain amount was guilty of dealing, had been declared unconstitutional.

Judge Ratshibvumo said almost three decades ago the Constitutional Court, in 1995, had ruled that section unconstitutional and of “no force and effect” because it imposed a “reverse onus of proof” on accused people caught with drugs, contrary to their fair trial rights.

The judge said it was only right that Mkhonza’s conviction and sentence be set aside.

“This may however be too little comfort for the accused who may have suffered substantial injustice at this stage,” he said, noting that while Mkhonza had been given a wholly suspended sentence, it was not known if he had paid the additional fine, or had begun serving the 24-month sentence attached to that.

Regarding the excessive delay in the provision of reasons by the magistrate, Judge Ratshibvumo said the magistrate had indicated that he had only received the record from the review court four months after it had been dispatched from the High Court.

“With the advent of technology, requesting and advancing reasons from the trial court should be possible within 24 or 48 hours by means of email communication. Presenting a case for review after the accused has served the sentence, defeats the whole purpose of review.

“It is the duty of all officers involved within the Department of Justice and Constitutional Development and the Office of the Chief Justice to give effect to the legislative provision and the court directors meant to protect an accused’s rights.”

He directed that court managers must compile reports within 30 days identifying the source of delay and indicating steps taken to avoid similar delays in future.

Mbekezeli Benjamin of Judges Matter said it was troubling that the magistrate had not known the law.

“It is a basic step in the legal research process to check if the law relied upon is still good law. It is notable that once the concerns were raised with the magistrate, he conceded his error and asked the review judge to correct it. We support Judge Ratshibvumo’s order that the Chief Magistrate identify areas where refresher training might be needed,” he said.

This article has been reposted with permission from GroundUp, and the original article can be found here.

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President Cyril Ramaphosa assented to the NPA Amendment Act in May, and on Thursday 15 August signed a proclamation bringing the Act into operation.

The establishment marked a “significant milestone in our fight against corruption,” said Minister Simelane, adding that “unlike the previous Investigating Directorate, IDAC’s permanence ensures its independence and the necessary parliamentary oversight.”

The NPA Amendment Act provides the IDAC with criminal investigation powers, with the Minister stating it would “enhance our capacity to combat complex corruption.”

It will further allow IDAC to “implement decisions from commissions of inquiry and uphold the recommendations of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption, and Fraud in the Public Sector.”

The Minister noted the “necessary regulations for section 19D(3) and section 22A(4) of the NPA Act have been prepared and will be published on 19 August 2024. Additionally, we are finalising regulations under section 8, which will allow for the appointment of a retired judge to oversee complaints related to IDAC investigators.”

Having held a successful meeting between business stakeholders and government earlier this month, the Minister announced that a commitment had been made to collaborate in setting up a digital evidence unit.

“The unit will extract and analyse data from encrypted devices such as cellphones and laptops to come up with the evidence needed to prosecute criminal cases of corruption successfully, specifically [in] cases related to state capture,” said the Minister.

Clarifying on who would have access to such data, the Minister stated that “the Department of Justice and Constitutional Development is the legal custodian of the Commission’s assets, including its data, on behalf of the South African State, government, and people. Law enforcement agencies have priority access to the data but do not have exclusive access or ownership.

“To facilitate this, the Commission amended its Regulation 11 to grant special access to its data,” noted the Minister, adding that the Commission had trained over 20 NPA investigators with the necessary skills to access its digital forensic platforms.

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The department said, “inaccurate media reports” allege that the NPA ID has not been “able to access critical information from the erstwhile State Capture Commission’s (SCC’s) Data Centre”.

“We wish to clarify that the cooperation between the Ministry and Investigating Directorate of the NPA remain cordial and professional. On the 31st of July 2024, the Ministry met with several of the entities of the department, and it pledged its unwavering commitment to support the work of the NPA and its Investigative Directorate.

“The Department of Justice and Constitutional Development is the legal custodian of all the assets of the Commission including the data centre, following the expiry of the term of the SCC. The department holds these assets on behalf of the South African State, government and people. This mandate arises from the custodianship of the Commissions Act, 1947, residing with the Minister of Justice and Constitutional Development.”

The department further stated that the data centre has devolved to the DJCOD as envisioned by the founding Memorandum of Agreement between the department and its counterpart, the National Treasury.

Furthermore, the department said it remains committed to “transparency, accountability, and the effective use of its data to support justice and governance”.

“The department established a Residual Mechanism to deal with remaining matters of the Commission.”

The Commission continues to supply and support all law enforcement agencies and other entities with data and information, as and when requested. Further, there is a Secretariat that continues to manage the data centre and support all law enforcement agencies and other entities in accessing the database.

“To ensure effective utilization of the data, the Commission trained over 20 NPA investigators, providing them with direct access to the Commission’s digital forensic platforms. The Commission’s secretariat has consistently supplied the requested data and documents.

“The Secretariat has positively responded to data requests from various law enforcement agencies, including the NPA’s ID, DPCI [Directorate of Priority Crime Investigations – Hawks], Asset Forfeiture Unit (AFU), Financial Intelligence Centre (FIC), South African Revenue Service (SARS), Special Investigating Unit (SIU), and some State-Owned Enterprises (SOEs). The remaining staff that is experienced in data science and programming, continue to support ongoing projects,” the department said.

News24 on Wednesday 14 August reported an “impasse” between the justice department and the NPA after the former apparently stymied the NPA’s efforts to gain full access to “essential evidence”, gathered by state capture commission investigators, which has now been lost due to maintenance failure.

The report further claimed that the department has stalled on the permanent establishment of the Investigating Directorate, making it difficult for the directorate to prosecute state-capture criminals.

The NPA said that it “continues to engage” execs from the commission’s digital lab and had “expressed that lack of access to the lab hampers the ability of the ID to deal with state capture cases. However, the issue of the access to the lab is primarily a technical one, being handled between the NPA and justice department officials. The previous and current ministers have been engaged and committed to attend to it expeditiously.”

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The system – called the Mojapay System – was temporarily suspended last week.

“The DOJCD wishes to place on record that there was no cyber-attack but detection of suspected fraudulent activities within the system by Mojapay System managers. This proactive detection underscores the effectiveness of our internal controls and monitoring mechanisms designed to safeguard the integrity of the grant distribution process. Contrary to some media reports, these activities do not constitute a cyber-attack.

“A cyber-attack involves external entities attempting to breach or disrupt a system’s operations. In this case, there was no breach or external intrusion. Instead, the issue related to potential fraudulent actions by individuals who may be attempting to exploit the system from within,” the department said.

The department moved to assure stakeholders that the system is being “strengthened to prevent and mitigate the risk of future breach attempts”.

“Our team is diligently investigating the suspected fraudulent activities and is working closely with the relevant authorities to allow due processes to take place. Ultimately, appropriate actions will be taken against any individuals found responsible.

“We appreciate the media’s role in informing the public but request for accurate reporting based on verified information. Mischaracterising the incident as a cyber-attack could cause unnecessary alarm and misinform the public about the nature of the situation,” the department said.

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