INFORMATION SERVICES: RESEARCH

INFORMATION SERVICES: RESEARCH

26 September 2003

COMBATING CORRUPTION IN SOUTH AFRICA
1. Introduction

The scourge of corruption and the negative effects thereof on the delivery of services is present in almost any country, South Africa being no exception. It has the most devastating effects in developing economies, as it jeopardises development in several ways. Firstly, it distorts public spending by deflecting allocated resources away from their original purpose and by undermining the tax base of Government. Secondly, it undermines efficiency. Time and money wasted through corrupt activities come at the expense of productive activities. This impacts on public administration and private enterprises. Thirdly, corruption discourages investment and growth, as many potential investors avoid notoriously corrupt environments. Lastly, it intrinsically undermines the quality of governance as it creates distrust.

All these factors ultimately impact negatively on people at grassroots level who have placed their confidence in Government to provide for their needs. The causes of corruption vary, and include the absence of clear rules and codes of ethics, low civil service salaries, as well as weak monitoring mechanisms.

Good governance, and by implication a strong stance against corruption, is vital to democracy. As part of its commitment to good governance, the South African government has introduced a number of measures aimed at preventing corruption, ranging from the adoption of a comprehensive framework for initiatives to combat and prevent corruption in the public service (also known as the Public Service Anti-Corruption Strategy) to the promulgation of far reaching anti-corruption legislation. The purpose of this brief is to provide an overview of these measures adopted by Government.

2. Legislative Measures

2.1 Current Legislation

A State sufficiently strong and confident about its ability to work in partnership with the private sector and civil society towards achieving public development goals will inevitably be armed with a firm legal framework. Parliaments must therefore work hard to enact legislation that set a regulatory framework for transparent and accountable conduct in the business of Government. Such laws should cover a number of aspects, including:

Financial regulation: Corruption thrives on an unregulated financial sector. However, financial institutions need to be allowed to take market-related decisions through a sufficiently "hands-off" regulatory framework.

Reporting by public entities: It is important that public entities report clearly on their achievements and failures in terms of agreed upon objectives. If unregulated, they could easily become a law unto themselves and thus likely sites of corruption.

Procurement reform: Legislation must describe the broad outlines of a national procurement policy. Using the Constitution as a basis, such outlines would have to make it clear that the procurement system will be competitive, fair and equitable. The legislation should also prescribe minimum requirements for transparency. Typical issues in this regard would be the public procedures of procurement bodies, the accessibility of procurement records, statements of reasons for procurement decisions and the confidentiality of detailed financial proposals by people who tender for projects.

Significant legislation that have been passed by the South African Parliament in this regard include the:

Corruption Act, No. 94 of 1992

The Corruption Act, which repealed the common law crime of bribery, serves as the basis for prosecuting corruption cases in South Africa. Before this Act was promulgated, corruption and corruption related offences were prosecuted either in terms of the Prevention of Corruption Act, or as common law crimes. Thus, offenders who otherwise should have been prosecuted for corruption, ended up being prosecuted on various other lesser charges such as theft, fraud, bribery, etc.

Section 1 of the Act creates the offence of corruption as follows:

Any person, who corruptly gives, offers or agrees to give any benefit of whatever nature, which is not legally due to that person, as an inducement or reward to perform special favours, shall be guilty of an offence.

Any person on whom some power has been conferred, who unlawfully and intentionally receives, or obtains, or agrees to receive or attempts to obtain any benefit of whatever nature, as an inducement or reward for him or herself or any other person, shall be guilty of an offence.

Corruption thus essentially refers to the abuse of power for illegitimate or illegal gain or profit. It assumes many forms, including:

Bribery: This entails beneficiaries using illegal means of payment to acquire Government favours and resource allocations. This can involve contracts, tax exemptions, timeframes and technical standards for complying with procurement rules and licenses, public information being monopolised, etc.

Theft and fraud: Some officials steal state assets under their jurisdiction or made accessible to them as a function of their positions in Government. Acquiring publicly owned assets through illegal transactions and fraud constitutes the most extensive form of such corruption.

Institutional corruption: The political and bureaucratic components of Government could become sources and targets of corruption. A common occurrence of such political and bureaucratic corruption is where conflicts of interest are not managed, so that potential beneficiaries of projects or resource allocations are directly able to control or influence decisions about those projects or allocations.

However, various shortcomings have been identified in the practical implementation of the Act, which necessitated a complete review thereof. The new Prevention of Corruption Bill is discussed in the section on legislative reform below.

National Prosecuting Authority Amendment Act, No. 61 of 2000

The National Prosecuting Authority Act provides for the establishment of a single National Prosecuting Authority (NPA) as contemplated in the Constitution. Section 7 of this Act gives the President discretion to establish Investigation Directorates in the Office of the National Director of Public Prosecutors in respect of specific offences. In line with this provision, the NPA established three Investigating Directorates, namely Serious Economic Offences, Organised Crime and Public Violence and Corruption.

The amendment Act that was passed in 2000 consolidates the three Directorates into one Directorate of Special Operations (DSO). This Directorate is commonly referred to as the Scorpions. The main objectives of this Directorate are to:

Gather intelligence and investigate offences which are identified in terms of the legislation as being of an especially serious nature.

Ensure that the preparation for the prosecution, as well as the prosecution itself in respect of these offences, are carried out in the best possible manner.

Promotion of Access to Information Act, No. 2 of 2000

This Act gives effect to the right of access to information as enshrined in Section 32 of the Constitution. In terms of the Act, everyone has the right of access to any information held by the State or another person when that information is required for the exercise or protection of any fundamental rights.

This legislation is intended to facilitate the demise of a secretive and unresponsive culture in public and private sectors, which often led to an abuse of power and human rights violations and corruption. It will also foster a culture of transparency and accountability in public and private bodies.

Protected Disclosures Act, No. 26 of 2000

The principal objects of the Act are to provide for procedures in terms of which employees in both the private and public sector may disclose information regarding unlawful or irregular conduct by their employers or other employees in the employ of their employers. It also provides for the protection of employees who make disclosures which are protected in terms of the Act.

Public Finance Management Act, No. 1 of 1999

The object of this Act is to secure transparency, accountability, and sound management of the revenue, expenditure, assets and liabilities of all the Public Institutions. This Act gives effect to sections 213, 214, 215, 216, 217, 218 and 219 of the Constitution.

These sections require national legislation to:

Establish a national treasury.

Introduce generally recognised accounting practices.

Introduce uniform treasury norms and standards.

Prescribe measures to ensure transparency and expenditure control in all spheres of government.

Set the operational procedures for borrowing, guarantees, procurement and oversight over the various national and provincial revenue funds.

To this end, the Act holds certain senior officials of government departments accountable for the misuse of State money. The Act thus forces senior officials to put in place systems and controls in their departments that would prevent abuse of State money.

The Act also places an obligation on all government departments to design and submit anti-corruption and fraud strategies to the Treasury within stipulated time frames.

Financial Intelligence Centre Act, No. 38 of 2001

The main aim of this Act is to combat money-laundering activities. It provides for the establishment of a Financial Intelligence Centre as an institution outside the public service, but within the public administration as envisaged in section 195 of the Constitution.

The objectives of the Financial Intelligence Centre are to:

Assist in the identification of the proceeds of unlawful activities in the combating of money laundering activities.

Make information collected by it available to investigating authorities, the Intelligence Services and the South African Revenue Service to facilitate the administration and enforcement of the laws of the country.

Exchange information with similar bodies in other countries regarding money laundering activities and similar offences.

Special Investigating Units and Special Tribunals Act, No. 74 of 1996

This Act provides for the establishment of Special Investigating Units to investigate serious malpractices or maladministration in State Institutions, State assets and public money as well as any conduct which may seriously harm the interests of the public. It also provides for the establishment of Special Tribunals to adjudicate on civil matters emanating from investigations by Special Investigating Units.

The object of this Act is to provide a mechanism through which serious allegations can be investigated comprehensively and swiftly. At the same time, it provides a mechanism through which remedial steps can be taken swiftly and cost-effectively. These steps would ordinarily have had to be pursued in the ordinary courts of law.

In terms of section 7 of the Act, a Special Tribunal consists of a judge of the High Court and such additional legally qualified members as are deemed necessary. However, the Act is in the process of being amended to give effect to a judgment of the Constitutional Court which, in effect, states that a judge cannot head a Special Investigating Unit.

Criminal Law Amendment Act, No. 105 of 1997

The Act provides, inter alia, for the imposition of minimum sentences in respect of certain serious offences, including corruption. In terms of this Act:

A first offender for corruption, involving amounts of more than R500 000, or involving more than R100 000 if committed by a syndicate or group of persons, or involving more than R 10 000 if committed by a law enforcement officer, must be sentenced to a minimum of 15 years' imprisonment.

A second offender, to a minimum of 20 years' imprisonment.

A third or subsequent offender, to a minimum of 25 years' imprisonment.

A court can only deviate from these prescribed minimum sentences if substantial and compelling circumstances exist to justify a lesser sentence.

Witness Protection Act, No. 112 of 1998

This Act provides for the protection of witnesses through witness protection programmes, which are administered by a central Office for Witness Protection. It is often difficult to prosecute cases of corruption successfully because of witnesses not coming forward to testify due to intimidation. Offences in respect of which a witness or related person may be placed under witness protection, and which have a bearing on corruption directly or indirectly, include the following:

Any offence relating to dealing in dependence-producing substances, if the value thereof is more than R10 000. It also applies if the value thereof is less than R5 000 and the offence is committed by a group of persons or by a syndicate or if the offence was committed by a law enforcement officer.

Any offence relating to exchange control, corruption, extortion, fraud, forgery, or theft, involving amounts of more than R50 000, or involving amounts of more than R10 000 where the offence is committed by a group of persons or by a syndicate or if the offence was committed by a law enforcement officer.

Any conspiracy, incitement or attempt to commit any offence referred to in the Schedule to the Act.

Any other offence which the Minister has determined by regulation.

Any other offence in respect of which it is alleged that the offence was committed by a person, group of persons or syndicate in the execution or furtherance of a common purpose or a conspiracy or by a law enforcement officer, and in respect of which the Director of the Witness Protection Programme is of the opinion that the safety of a witness who is or may be required to give evidence or who has given evidence in respect of such offence, warrants protection.

Prevention of Organised Crime Act, No. 121 of 1998

This Act is intended to introduce measures to combat organised crime, money laundering and criminal gang activities. It prohibits certain activities relating to racketeering, i.e. the planned, ongoing, continuous or repeated participation or involvement in certain offences. It prohibits money laundering and criminalises certain activities associated with gangs and it provides for the recovery of the proceeds of unlawful activities as well as for the forfeiture of criminal assets that have been used to commit an offence or assets that are the proceeds of unlawful activities.

The Public Protector Act, No. 23 of 1994

The Office of the Public Protector is established in terms of this Act. This Office is responsible for investigating any:

Maladministration in connection with the affairs of government at any level.

Abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function.

Improper or dishonest act, or omission or corruption, with respect to public money.

Improper or unlawful enrichment, receipt of any improper advantage, or promise of such enrichment or advantage, by a person as a result of an act or omission in the public administration or in connection with the affairs of government at any level or of a person performing a public function.

Act or omission by a person in the employ of government at any level, or a person performing a public function, which results in unlawful or improper prejudice to any other person.

2.2 Legislative Reform

In response to an invitation from the Minister of Justice and Constitutional

Development to provide comment on the practical implementation of the Corruption Act, various shortcomings were identified by role-players. These included that the Act is not user-friendly and that it is aimed at two persons, namely the payer and the receiver of the money, but does not cover the "go-between".

Various proposals were also received relating to the amendment of the Act, which included:

The common law crime of bribery should be re-instated and extended to include corruption in the private sector.

The crime of corruption should be broadened to cover all agents, public or private.

The Act should apply extraterritorially in order to cover any gifts given or received outside our borders.

The Act should create a crime when public officials are used or manipulated to commit irregularities.

As a result, the Minister of Justice and Constitutional Development introduced the Prevention of Corruption Bill in Parliament on 25 April 2002. The Bill aims to give effect to the recommendations that emanated from a total review of the Corruption Act of 1992. The aim is to create a comprehensive Prevention of Corruption Bill, rather than to amend the present Act on a piece-meal basis. This will contribute to Government’s overall anti-corruption strategy. The provisions of the Bill follow the trend of modern international legislation, namely unbundling of corruption, which entails defining and prohibiting specific corrupt actions and corrupt practices.

The Bill creates general prohibitions in respect of the acceptance and giving of

corrupt gratification, as well as various prohibitions relating to specific persons and specific matters. It prohibits persons from, directly or indirectly, accepting, agreeing or offering to accept any gratification for him-or herself, or for the benefit of another person, as an inducement to act, influence someone else to act or as a reward for acting or having acted with an improper purpose in carrying out or performing his or her powers, duties or functions relating to his or her office, employment or any other capacity.

It is also prohibited for persons to directly or indirectly give, agree or offer to give any other person any gratification as an inducement to act, influence someone else to act or as a reward for acting or having acted with an improper purpose in the carrying out of that person’s job.

The Bill defines gratification as including money, donations, gifts, loans, the avoidance of loss or punishment, any office, contract of employment, any right or privilege and any benefit of any kind.

It is important to note that any giver or receiver of gratification in terms of the Bill will be guilty of an offence, irrespective of whether the action for which the gratification was accepted or given, was carried out or not.

The Bill also provides for extraterritorial jurisdiction, as its provisions will apply to any corrupt offence committed outside the country by a person who was a South African citizen or domiciled in the country at the time of the commission of the offence, or who became a South African citizen at any time after the commission of the offence. The provisions of the Bill will also apply to corrupt activities committed by foreigners outside of the country if that:

Act affects or is intended to affect a public body, any person or business in South Africa.

Foreigner is found to be in South Africa.

Foreigner is for any reason not extradited by South Africa or if there is no application to extradite that foreigner.

Finally, the Bill reinstates the common law crime of bribery, which was repealed by the 1992 Corruption Act. The Portfolio Committee on Justice and Constitutional Development is currently deliberating on the Bill.

3. Institutional Measures

Parliament has a variety of tools that it can employ to control corruption. These form part of the system of accountability and include:

The Code of Conduct for Assembly and Permanent Members

The Code is intended to foster ethical behaviour on the part of Members by promoting selflessness, integrity, objectivity, openness, honesty and leadership.

The Code covers all Members and, to a limited extent, their spouses. In short, in order to prevent a possible conflict of interest, the Code requires that Members disclose financial and other interests relevant to their performance as public representatives. The Code provides for a Register of Members’ Interests, which is open to public scrutiny and must be updated on an annual basis.

If a Member fails to comply with the provisions of the Code or, while providing details of his or her interests, wilfully misleads the Registrar with incorrect or misleading details, he or she is in breach. Where the Code has been breached, the Joint Committee on Ethics and Members’ Interests must recommend imposing one or more of the following penalties:

A reprimand.

A fine, not exceeding 30 days’ salary.

Reduction of salary or allowances by a maximum period of 15 days.

The suspension of privileges or a Member’s right to a seat in parliamentary debates or Committees for a maximum period of 15 days.

Once the Joint Committee has made its decision, it must report its findings and recommendations to the appropriate House. The House may either accept or reject the Joint Committee’s recommendation or refer the decision back to the Joint Committee for further deliberation.

Building the political will to control corruption

As noted previously, political will is vital to any system of national integrity. Parliaments can legislate to outlaw corruption, but without the political will to implement such legislation, corruption will flourish. Furthermore, Parliaments are best able to convince Government and other institutional actors that they are committed to combating corruption by first ensuring their own personal integrity.

In this respect, as far as possible, Parliamentarians should act together across political lines to prioritise fighting corruption and unethical behaviour. This is difficult, given the political pressures that surround the issue of corruption. Nevertheless, failure to stand firm against corruption, risks weakening anti-corruption efforts and reinforces public cynicism.

In addition, Parliamentarians should use Parliamentary debates, question periods, motions and speeches to highlight incidents of corruption and the necessity for reform.

Ensuring accountability

Accountability has been described as being fundamental to preventing the abuse of power and for ensuring that power is directed towards the achievement of broadly accepted national goals in the most efficient, effective and open manner possible. Accountability aims to inform citizens about the why and how of policy processes and choices so that they are able to judge and respond to Government action.

Democracy requires that Parliament call leaders to account. Thus, a key responsibility of Cabinet Members is to account to Parliament. This includes accounting for political acts and decisions as well as the management and administration of public programmes and expenditure of public funds. It is by means of this function that Parliament is best able to control corruption.

Forging relations with State Institutions supporting Democracy

Chapter 9 of the Constitution establishes a number of Institutions to aid and complement the work of Parliament in overseeing the Executive. These Institutions are known as State Institutions Supporting Democracy. These Institutions are independent and impartial, able to perform their functions without fear or prejudice and are subject only to the Constitution and the Law. They include the Office of the Auditor-General, the Office of the Public Protector and the South African Human Rights Commission.

These Institutions form an integral part of the system of checks and balances designed to ensure accountable governance. They assist the role of Parliament by:

Complementing Parliament’s oversight role by acting, together with Parliament, as watchdog bodies over the Government and other organs of State.

Providing Parliament with information that is not derived from the Executive. Section 181(5) of the Constitution renders the State Institutions Supporting Democracy accountable to the National Assembly by requiring that they report to it at least once annually. Thus, they support and aid Parliament in its oversight function. These Institutions are a particularly valuable source of independent information to Parliament, as Members often do not have the time or resources to investigate in depth.

Building alliances with civil society

Civil society can play a vital role in alerting Parliament to issues of corruption. For example, an independent press is able to expose corruption, thereby sensitising the public to instances where power is being abused. Non-Governmental Organisations also play an important role in this respect. The history of civil society in South Africa has demonstrated that it has the capacity to successfully oppose structures of state domination. In the new South African dispensation, this sector is able to support democracy by providing information to Parliament.

Debating in Parliamentary Committees

A Committee of Parliament may invite a Government Department or any State Organ falling within its Portfolio to provide explanations for its actions. It may summons any person to appear before it to give evidence, and must monitor the implementation of legislation. In addition, a Committee should make regular enquiries into the projects and programmes of Departments and request regular briefings on any progress made by the Department. It may also go on study tours to gather information at an operational level and hold public hearings to solicit information from the public on a particular matter.

Where requested, a Committee must report to the House on any matter that was referred to it. Where evidence is gathered at meetings, hearings or visits, the Committee may consider adopting a report. The Report may contain recommendations directing a particular State Organ or Institution to perform an action or to meet a target within a specified time frame. Although not binding on the Executive, the Committee may summon the Head of the Institution or State Organ to give a detailed explanation for failure to implement the recommendations. In addition, the Standing Committee of Public Accounts plays a key role in alerting Parliament to irregularities in Departments.

Developing a Code of Ethics for Members of the Executive

The Constitution prescribes that Members of the Cabinet, Members of the Executive Council (MEC’s) of Provinces and Deputy Ministers must act in accordance with a Code of Ethics prescribed by national legislation. Accordingly, the Executive Members Act, No. 82 of 1998, was enacted. In terms of this Act, the President, in consultation with Parliament, is obliged to promulgate a Code of Ethics for Cabinet Members, Deputy Ministers and MEC’s. A revised Code is in the process of being drafted.

Networking both in Africa and internationally

Corruption is a trans-national issue and, as such, cannot be solved primarily on a national basis. Indeed, national anti-corruption programmes can be greatly assisted by international co-operation. Sharing experiences and best practices is useful and helps build Parliament’s capacity to combat corruption.

4. Conclusion

An ethical framework is essential for good governance and, hence, is vital for social and economic development. Corruption promotes the wrong developmental and investment choices as the interests of the country as a whole are not taken into account. While South Africa has a relatively sophisticated and comprehensive legislative framework aimed at combating corruption, especially in the public sector, successful implementation demands political will. Parliament can play a vital role in strengthening such political will by performing its function of holding the Executive accountable by overseeing its actions.

Although great successes have been achieved in addressing the scourge of corruption, greater energy needs to be directed towards refining the efficiency of the country’s institutional and legislative capabilities, and to making the strategies operational in all sectors of the country.

REFERENCES

Prevention of Corrupt Activities Bill [Working Document No. 5: May 2003].

Prevention of Corruption Bill [B19-2002].

Corruption Act, 94 of 1992.

Criminal Law Amendment Act, 105 of 1997.

Witness Protection Act, 112 of 1998.

Public Protector Act, 23 of 1994.

Financial Intelligence Centre Act, 38 of 2001.

Constitution of the Republic of South Africa Act, 108 of 1996.

Executive Members’ Ethics Act, 82 of 1998.

Regional Seminar on Anti-Corruption Investigating Strategies with Particular Regard to Drug Control for SADC Member States: Background Paper on the Republic of South Africa, October 2001.

May E., ‘The South African System to Prevent Corruption’, 30 November 2001.

May E., ‘Strengthening the oversight role of Parliament in the battle against corruption’, 12 July 2001.

May E., ‘Department of Justice and Constitutional Development: Legislation, Policies and Programmes that have impacted on women’, 14 May 2003.

Parliament of South Africa, Explanatory Document on the Code of Conduct for Members of Parliament

Country Corruption Assessment (2003) available at

http://www.parliament.gov.za:7779/pls/portal30/docs/folder/parliament/

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