A Tribunal Is Not a Court, But It Might Be as Effective as a Court: A Reflection on Ledla Structural Development (Pty) Ltd v Special Investigating Unit 2023 (2) SACR 1 (CC)

Abstract

The Constitution of South Africa, 1996 makes provision for “disputes that can be resolved by the application of law” to be resolved, in appropriate circumstances, by an independent and impartial tribunal. For this reason, the place of independent and impartial tribunals is entrenched in South Africa’s constitutional text. Therefore, superior courts cannot be regarded as the only means to review administrative action and access courts. Although the Constitution makes provision for the use of independent and impartial tribunals, the legislature has not yet enacted legislation that makes provision for the use of a general, independent and impartial tribunal that can be used for the resolution of administrative disputes. Instead, what South Africa currently has in place are tribunals that are established on a mostly ad hoc basis. This is with the exception of tribunals like the Rental Housing Tribunal; the Water Tribunal; the Competition Tribunal; the National Consumer Tribunal; and the Companies Tribunal. The effectiveness of these tribunals, as well as of dispute resolution forums in the field of labour law, in resolving disputes in a speedy, inexpensive and impartial manner highlights the importance of independent and impartial tribunals in giving effect to the right to just administrative action and to access to courts.
The Constitutional Court has grappled with the status and importance of “administrative tribunals” in two recent decisions. The first of those decisions is Competition Commission of South Africa v Group Five Construction Ltd (2023 (1) BCLR 1 (CC)). The Group Five matter dealt with whether the jurisdiction of the Competition Tribunal was ousted in matters carved out to give the High Court jurisdiction. The second of these decisions is Ledla Structural Development (Pty) Ltd v Special Investigating Unit (2023 (2) SACR 1 (CC)), which is the subject of this contribution. In Ledla, the Constitutional Court was called upon to decide, among other things, whether a Special Tribunal, established in terms of section 2 of the Special Investigating Units and Special Tribunals Act (74 of 1996), was a court. It is worth noting that the SIU Act was enacted, among other things, to establish Special Tribunals to adjudicate civil matters emanating from investigations of Special Investigating Units (SIUs). This means that an SIU does not need to queue at the high courts for matters emanating from its investigations to be heard. Instead, SIUs take matters emanating from their investigations directly to Special Tribunals, where they are speedily resolved. The legislature has thus created a legal framework that provides for a special adjudicative regime for SIUs.
In Ledla, the Constitutional Court held that a Special Tribunal was not a court in terms of section 166(e) of the Constitution but was competent to adjudicate legality reviews brought before it. This contribution examines the reasoning and possible implications of the court’s finding that a Special Tribunal has the power to adjudicate legality reviews even though it is not a court. Furthermore, this contribution uses the court’s reasoning to emphasise the importance of introducing independent and impartial tribunals to ensure that administrative-law disputes are resolved in an accessible, speedy and inexpensive manner. What follows is a discussion of the general characteristics of a tribunal, and then a discussion and analysis of the Constitutional Court judgment in Ledla. This contribution concludes by making a case for the establishment of independent and impartial administrative tribunals.