Two companies involved in the construction of the Beitbridge border fence on Tuesday challenged the powers of the Special Tribunal to adjudicate on an application launched by the Special Investigating Unit.

The SIU last year referred civil proceedings against Caledon Rivers Properties and ProfTeam CC in relation to the controversial R40.4m Beitbridge border fence contract to the tribunal.

The SIU asked the tribunal to set aside the contract that the department of public works signed with the two companies. It alleged that the signing of the contract was in contravention of the Public Finance Management Act and Treasury regulations.

However, the two companies raised a point of law and challenged the powers of the tribunal to hear the matter.

They alleged the tribunal was not a court but a tribunal established by the president. They said it did not have a power to decide on constitutional matters.

Etienne Theron SC, for ProfTeam CC, told Special Tribunal judge Lebogang Modiba that the company's attack “goes to the jurisdiction of the tribunal to entertain the relief sought by the applicants”.

Theron said the SIU wanted to set aside the contract because of the finding to be made by the tribunal that the signing of contract was in contravention of section 217 of the constitution, which governs procurement by organs of state.

Theron said there were a number of courts designated to hear constitutional matters and the Special Tribunal was not one of them.

Theron said this was because the tribunal was not recognised in terms of an act of parliament, as required by the constitution. He said the tribunal was instead established by proclamation by the president.

Theron said the establishment of a court was not an executive competence. “It is a legislative competence. The president can never establish a court.”

Theron asked the tribunal to dismiss the application by the SIU for want of jurisdiction.

Gideon Scheepers SC, for Caledon River Properties, said there was no provision in the Special Investigating Units and Special Tribunals Act that provides for a power by the Special Tribunal to make a finding of constitutional invalidity.

Ishmael Semenya SC, for the SIU, said the relief that the SIU sought from the tribunal was the setting aside of the contract that was concluded by the department and the two companies.

“There is nothing in these proceedings that seek to declare this conduct inconsistent with the constitution,” Semenya said.

He said advocates for the companies were trying to push the tribunal to make a determination whether it is a court or a tribunal.

“We must not be led astray by a tangential enquiry about whether the tribunal is the court. What is relevant is whether the tribunal can adjudicate the matter that is brought in terms of the act.”

Semenya said the matter before the tribunal concerns itself with the investigation of serious malpractice, which related to a contract concluded in the Beitbridge matter. He said this was provided for in the Special Investigating Units and Special Tribunals Act.

He said the case by the SIU was before the correct tribunal as the act provided that the tribunal shall have jurisdiction to adjudicate upon any civil dispute brought before it by the SIU emanating from its investigations.

“The jurisdictional facts necessary to invoke the tribunal's jurisdictional powers are present. The [matter] concerns the question of maladministration. This tribunal has jurisdiction to determine [this matter].”

The tribunal reserved judgment.

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