Special Investigating Unit v Mosokodi Business Trust and Others – GP09/2024; GP22/2024

The Progress Report/Judges Matter – Lottery-funded land deals and the Tribunal’s authority to recover misused public funds.

Case background

On 27 March 2024, under case number GP09/2024, the Special Investigating Unit (SIU) brought an urgent application seeking to interdict the Mosokodi Business Trust, Phillemon Letwaba, the former Chief Operations Officer (COO) of the National Lottery Commission (NLC), and Johannes Letwaba from selling or dealing with immovable property in Limpopo. The SIU intended to bring a further application to have the property declared as being the proceeds of unlawful activities and forfeited to the State.

The application followed an SIU investigation authorised by Presidential Proclamation R32 of 2020.

The investigation concerned the allegedly unlawful purchase a portion of a farm in Limpopo for R4.4 million by Mosokodi Business Trust, which was founded by Phillemon and Johannes Letwaba. The SIU alleges that the property was acquired through an elaborate scheme, set out below:

• The National Lotteries Commission awarded funding to two non-profit organisations: Lulamisa Community Development Organisation and Tshikovha Graduate Academy.
• These organisations transferred the NLC funds to companies owned by Phillemon Letwaba’s wife and cousin.

Those companies made five payments totalling R4 766 009.83 into the trust account of Anne-Marie Kotzee Attorneys as payment for the property. According to the SIU, the entire purchase price was funded by money intended for public use by the two NPOs, making it the proceeds of unlawful activities.

On 28 March 2024 the Special Tribunal granted the interdict sought by the SIU.

From interdict to forfeiture

On 25 June 2024, the SIU brought a forfeiture application, (GP22/2024), asking the Tribunal to declare the Limpopo immovable property the proceeds of unlawful activities and to order it forfeited to the State.

The forfeiture application was opposed by the first, second, third and sixteenth respondents. It is this matter that will be heard by the Tribunal on 15 and 16 May.

In opposing the forfeiture application, the respondents have alleged:

(i)                  that the President did not have the requisite authority to issue the relevant proclamation instituting the investigation;

(ii)                that the Special Tribunal does not have the jurisdiction or power to order the preservation and forfeiture of assets, as the SIU Act does not confer such power on the Tribunal; and

(iii)               that the SIU Regulations and Tribunal Rules purporting to confer on the Tribunal the power to order preservation and forfeiture are unconstitutional.

As a result, the respondents launched a counter-application seeking an order declaring parts of the SIU Regulations and Tribunal Rules invalid and/or unconstitutional and asked that the SIU’s forfeiture application be dismissed. Because the counter-application involved a constitutional challenge, the respondents also brought a joinder application, seeking to join the Minister of Justice and Constitutional Development and the President of the Tribunal to the matter. The parties are currently in discussion over whether the joinder and constitutional questions should instead be heard by the High Court rather than the Tribunal.

Amicus Curiae and the role of the DGRU

On 4 March 2025, the Tribunal issued a directive appointing the Democratic Governance and Rights Unit (DGRU) as an amicus curiae in the forfeiture matter.

The DGRU is expected to make submissions on:

• The validity of the SIU Regulations and Tribunal Rules, and
• Whether, until the Rules have been declared invalid, they should continue to be implemented.

[DEFINITION: “An amicus curiae (lit. ’friend of the court’; pl. amici curiae) is an individual or organisation that is not a party to a legal case, but that is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. Whether an amicus brief will be considered is typically under the court’s discretion. The phrase is legal Latin and the origin of the term has been dated to 1605–1615. The scope of amici curiae is generally found in the cases where broad public interests are involved and concerns regarding civil rights are in question.^[1] – Wikipedia]

Timeline of events

What comes next
The matter is set down for hearing on 15 and 16 May 2025 before the Special Tribunal. The DGRU (link: https://law.uct.ac.za/dgru)  will make oral submissions alongside the parties. The outcome could have significant implications – not only for the forfeiture of the Limpopo property, but also for the future powers of the Special Tribunal in similar matters.

Cases like this sit at the heart of South Africa’s broader effort to recover misappropriated public funds and test the legal tools available to do so. The Progress Report (link: https://www.theprogressreport.org.za/), a new sister project to Judges Matter (link: https://judgesmatter.co.za/) tracks these developments – monitoring key corruption recovery cases, analysing the evolving powers of the Special Tribunal and the Specialised Commercial Crimes Courts, and highlighting gaps in the system that must be addressed for accountability to be realised.

Inky Dresner

Soapbox Communications

Cell: (083) 297 7981

Email: inky@soapbox.co.za