Special Investigating Unit and Another v Caledon River Properties (Pty) Ltd t/a Magwa Construction and Another (GP17/2020) [2021] ZAST 26 (26 February 2021)

Legality review - the Special Investigating Unit and the National Department of Public Works and Infrastructure (“Public Works”) seek to review and set aside the contracts concluded between Public Works and Caledon River Properties (Pty) Ltd t/a Magwa Construction (“Caledon River”) and, Profteam CC (“Profteam”) for the construction of a 40km borderline infrastructure project between the Republic of South Africa and the Zimbabwe Border Post colloquially known as the Beitbridge Border Fence Project on account of alleged irregularity and unlawfulness arising from breach of s217 of the Constitution, the Public Finance Management Act, the Treasury Regulations, the Disaster Management Act and the Disaster Management Regulations.

Point of law – constitutional jurisdiction – Calendon River and Profteam question the status of the Special Tribunal and its jurisdiction to make a declaration of constitutional invalidity in terms of s172(1) of the Constitution. Paragraph 1, 3, 8, 9, 10, 15.

Held - the Special Tribunal is a court of a similar status to the High Court as envisaged in s166(e) of the Constitution. Paragraph 29, 31, 33, 36, 57.

Held - the Special Tribunal has jurisdiction to make a declaration of constitutional invalidity in terms of s172(1) of the Constitution. Paragraph 61-68.