Captain of the salvage vessel
Judge Makhanya pursues looted billions
It was a presidential order that thrust judge Gidfonia Makhanya into the eye of SA’s corruption storm. Now, with time against them, Makhanya and his seven colleagues — all South African high court judges — have a formidable task cut out for them. Within three years they must finalise dozens of highly complex civil litigation matters through which the government aims to recover almost R15bn. Critics fear that most of the money — stolen from the taxpayer through state capture — has been hidden overseas. This vast sum is what the government estimates has been misappropriated through rampant corruption, racketeering, fraud, money-laundering and other financial malfeasance.
The looting — much of which took place under cover of tenders for state work — has left municipalities financially ruined, SOEs on the brink of collapse and citizens without access to basic services.
Makhanya and the rest of the judges of the Special Investigating Unit’s Special Tribunal are prepared for the task. “We are not afraid. If we were fearful then we would already be defeated,” says Makhanya, the president of the tribunal.
With 20 years’ experience on the bench, Makhanya, 70, knows about the importance of ensuring justice is delivered.
Asked if the tribunal can achieve its task, his face crinkles in thought.
“With the public behind us we will definitely pull this off. We have a job to do and we will do it. We owe it the people of this country.
“South Africans are crying out for justice. They want to see it being done and we will show them that it is.
“Whichever way the scale of justice swings, our work will show that justice has been delivered.”
Sitting behind the desk of his recently fitted-out office in the Booysens magistrate’s courthouse in southern Johannesburg — the tribunal’s headquarters — Makhanya thumps his table and laughs when asked what his family thinks of his new job.
The father of four, whose eldest son is a practising attorney, says: “Some of them are very nervous. It is a serious task ahead but they do understand.
“They want my colleagues and I to do right by the country, and to ensure justice is served based on facts.
“I was quite ready to go and play golf. But when the president calls, you answer. Someone had to do it. I answered the call and now I am here.”
One can see that Makhanya, who is quick to smile, is careful about how he answers questions, tapping his fingers slowly, pondering his responses.
He cannot risk allowing the tribunal, which is to adjudicate multibillion-rand civil cases brought before it by the Special Investigating Unit (SIU), to be accused of bias.
“We have no decision-making powers when it comes to cases which are referred to the tribunal. We do not know who or what has been investigated, what is in the process of being investigated or the SIU’s findings and recommendations on matters, until they arrive on our desks.”
The challenges that lie ahead, says Makhanya, are immense.
“It will not be smooth sailing. We have no precedents to work off. The previous [SIU] tribunals all fell apart.
“That means that our rulings on the matters which come before us will be precedent-setting.
“They will shape our country’s future legal case history as well as the fights against future corruption.”
He has no doubt that the fight to deliver justice will be formidable, with respondents expected to retain some of the country’s best legal minds to help with their defence.
Makhanya knows the battle in the end will come down to finding out exactly where the monies are, how they came to be there, and how they can be returned to the state.
The cases they will deal with are not run-of-themill matters. They are very serious and complex and fraught with difficulties, including all traces linking back to those involved in any alleged thefts often wiped away.
And the chances of money actually being recovered?
That is not a hard question to answer, says Makhanya.
“Based on evidence presented to the tribunal, the judges’ orders will allow the government to seize funds even if they are held overseas.
“We will ensure that the government, which has agreements with foreign states, is equipped with the tools that they need to go after funds that have been taken, no matter where that money is.”
He is, however, quick to admit that a big challenge will be to get foreign nationals, and international companies and their staff, to appear before the tribunal in cases where they are alleged to be involved in the state’s financial losses.
“Fortunately the government has a number of international treaties which can be invoked to have those who must, appear before the tribunal.
“Our aim is to make this tribunal a force to be reckoned with, one which must be taken seriously and one which will give the people of South Africa confidence and instil faith in the country’s judicial institutions.”
Quick to laugh but also swiftly becoming serious, the judge, who majored in economics, says that he and his colleagues welcome the challenges that are coming their way.
“We are not a kangaroo court,” he says.
“Our work will be done by the book and we will be transparent in handing out justice regardless of which way the decision goes.
“The SIU knows very well that we will not hesitate to throw out a matter if we believe the case has not been thoroughly investigated.
“Transparency is the cornerstone of our work and we will not thumb-suck judgments just because cases are not properly prepared,” says Makhanya.
At the same time, he warns, the judges, who have decades of experience behind them, will stop any delaying tactics deployed by defence lawyers in an attempt to prevent them from delivering justice. “Ensuring swift and efficient judicial processes is paramount in helping the state to recoup stolen and misappropriated funds.
“There are cases currently before the courts which have been there for 10 years. The tribunal’s rules and regulations allow us to do away with unnecessary time-wasting.”
It is important for the tribunal that the public understands the justice it can mete out.
“We understand that people want to see alleged corrupters and criminals donning orange overalls, but people must know that we do not deal with the criminal side of matters,” says Makhanya.
“Our role, which can see us referring matters to the National Prosecuting Authority for criminal prosecution, is about ensuring monies stolen from state institutions are recovered.”