SA has a bat­tery of laws to pre­vent, com­bat and pun­ish acts of cor­rup­tion, but the num­ber of cases are in­creas­ing at an

CityPress - - Voices - Mavuso Msi­mang voices@ city­press. co. za

Irecently re­quested an au­di­ence to al­low me to kick off my talk, The risks of cor­rup­tion fac­ing SA in 2015 and 2016, by re-en­act­ing a scene from a class­room some­where in South Africa. They agreed, which I hope you will to. There are six tenses in the English lan­guage, namely: past, present, fu­ture; past per­fect, present per­fect and fu­ture per­fect – and Ms Sand­wich de­cided to test her pupils’ knowl­edge of this.

Ms Sand­wich: “The lead­ers have fin­ished all the food. What tense is that?”

“Present per­fect tense,” Theodora an­swers con­fi­dently. “Ex­cel­lent! Please take your seat,” Ms Sand­wich says.

“Next ques­tion. Af­ter tak­ing of­fice, the lead­ers in­sisted it was their turn to eat. Ma­galies?” “Past tense, Ms Sand­wich,” an­swers Ma­galies. “Very good, take your seat, Ma­galies. Next one. It seems they had for­got­ten their elec­tion prom­ises, to serve the peo­ple.” Zelda’s hand goes up and she an­swers: “Past per­fect tense.” Ms Sand­wich was ec­static. “Now Thu­lane, lis­ten very care­fully and give me the cor­rect tense of this sen­tence: By 2025, South Africa will have be­come a cor­rup­tion-free coun­try.” Thu­lane gri­maces, hes­i­tates a bit, then says: “Fu­ture im­pos­si­ble!” The prog­no­sis at Cor­rup­tion Watch, where I serve as a trustee, is not dis­sim­i­lar to Thu­lane’s, but we re­main op­ti­mistic. It is a hope­ful­ness borne out of our undy­ing faith in in­her­ent hu­man good­ness – and less on em­pir­i­cal ev­i­dence.

Let’s de­fine the mat­ter. Cor­rup­tion Watch de­fines cor­rup­tion as “the abuse of public re­sources or public power for per­sonal gain”. Global civil so­ci­ety or­gan­i­sa­tion Trans­parency In­ter­na­tional, which mon­i­tors and pub­li­cises cor­po­rate and po­lit­i­cal cor­rup­tion in in­ter­na­tional de­vel­op­ment, has a more ex­pan­sive def­i­ni­tion: “the abuse of en­trusted power for pri­vate gain. It can be clas­si­fied as grand, petty and po­lit­i­cal, depend­ing on the amounts of money lost and the sec­tor where it oc­curs.”

As of­ten hap­pens in South Africa, ev­ery­thing, even def­i­ni­tions, is sub­jected to scru­tiny. The Coun­cil for the Ad­vance­ment of the SA Con­sti­tu­tion is con­cerned by what it per­ceives to be too nar­row a def­i­ni­tion of cor­rup­tion; one that cre­ates the im­pres­sion that cor­rup­tion is ram­pant – and ex­clu­sively so – only among the poor and in the public sec­tor; a def­i­ni­tion that some­times as­sumes con­no­ta­tions of race. The coun­cil be­lieves that states can also be im­pli­cated in cor­rup­tion.

The coun­cil of­fers this def­i­ni­tion: “Cor­rup­tion is a trans­ac­tion or at­tempt to se­cure an illegal ad­van­tage for na­tional in­ter­ests or pri­vate ben­e­fit or en­rich­ment, through sub­vert­ing or sub­orn­ing a public of­fi­cial or any per­son or en­tity from per­form­ing their proper func­tions with due dili­gence or pro­bity.” It is a bit of a mouth­ful, but it makes the point.

South Africa boasts a for­mi­da­ble ar­se­nal of laws, pre­dom­i­nantly since the tran­si­tion to democ­racy in 1994, to pre­vent, com­bat and pun­ish acts of cor­rup­tion. These laws in­clude, in­ter alia, the Con­sti­tu­tion, the Public Fi­nance Man­age­ment Act, the Public Ser­vice Act, the Com­pe­ti­tion Act, Pro­tected Dis­clo­sures Act and, not least, the Preven­tion and Com­bat­ting of Cor­rupt Ac­tiv­i­ties Act.

The lat­ter act was writ­ten, among other rea­sons, to cre­ate a register to pre­vent peo­ple in­volved in cor­rup­tion from se­cur­ing gov­ern­ment con­tracts or ten­ders. It re­quires peo­ple in po­si­tions of au­thor­ity to re­port cor­rup­tion of more than R100 000. It also pro­vides for the im­po­si­tion of hefty prison sen­tences and fines.

It brings lo­cal leg­is­la­tion on cor­rup­tion in line with the UN Con­ven­tion Against Cor­rup­tion and the AU Con­ven­tion on Pre­vent­ing and Com­bat­ting Cor­rup­tion. South Africa’s other com­mit­ment to in­ter­na­tional co­op­er­a­tion in the fight against crim­i­nal­ity was through its sign­ing of the Rome Statute of the In­ter­na­tional Crim­i­nal Court (ICC). Par­lia­ment signed the ICC Act of 2002. In terms of this law, South Africa would have been ex­pected to ex­e­cute the long-stand­ing war­rant of ar­rest on Omar al-Bashir, pres­i­dent of Su­dan, is­sued by the In­ter­na­tional Court of Jus­tice. But that is a rather in­con­ve­nient di­gres­sion. The im­pe­ri­al­ists ought to know that we don’t take kindly to their pre­oc­cu­pa­tion with flush­ing out our ver­min when they turn a blind eye on their own.

Among the laws that in­flu­ence cor­rup­tion in South Africa is a US fed­eral law, the For­eign Cor­rupt Prac­tices Act of 1977. The act

8 181 2 714was passed to make it un­law­ful for cer­tain classes of per­sons and en­ti­ties to make pay­ments to for­eign gov­ern­ment of­fi­cials to as­sist in ob­tain­ing or main­tain­ing busi­ness. It was in terms of this leg­is­la­tion that Gold Fields was ac­cused of of­fer­ing a bribe to Baleka Mbete, chair­per­son of the ANC, in a con­tentious 2010 em­pow­er­ment deal.

To pub­li­cise and fa­cil­i­tate public ac­cess to ac­tiv­i­ties around the law, there is a For­eign Cor­rupt Prac­tices Act blog that lists and pe­ri­od­i­cally up­dates com­pa­nies be­ing in­ves­ti­gated un­der the act.

Given this bat­tery of laws aimed at pre­vent­ing or con­tain­ing the scourge of cor­rup­tion, what is the state of the malaise in South Africa? To say the least, we are not in a good space.

The Cor­rup­tion Watch an­nual re­port re­leased in Fe­bru­ary 2014 shows that cor­rup­tion in South Africa is in­creas­ing. A to­tal of 8 181 cases were re­ported in three years of the or­gan­i­sa­tion’s oper­a­tions. About 2 714 cases were re­ported in 2014, rep­re­sent­ing an in­crease of 17% over the pre­vi­ous year. On av­er­age, this is equiv­a­lent to seven re­ported cor­rup­tion cases per day – and not all cases are re­ported. Of the re­ported cases, 56% was con­firmed as cor­rup­tion; oth­ers re­lated to poor gov­er­nance and ser­vicede­liv­ery short­com­ings. Cases re­lated to the abuse of power, a form of cor­rup­tion, ac­counted for 41% of com­plaints re­ceived and oc­curred in the ed­u­ca­tion and schools sec­tor, in traf­fic and li­cens­ing de­part­ments as well as immigration and hous­ing.

In­creas­ingly, the av­er­age citizen be­lieves that you are un­touch­able and not be­holden to the same rules as or­di­nary cit­i­zens – if you wield power. There is a strong and grow­ing belief that the wealthy have un­due ac­cess to power and the sys­tem can be ma­nip­u­lated in their favour. Os­car Pis­to­rius’ case springs to mind, where wealth and fame are be­lieved to have re­sulted in him fac­ing the lesser charge of cul­pa­ble homi­cide, rather than mur­der, for killing his part­ner. Cyril Ramaphosa, now deputy pres­i­dent, who was a nonex­ec­u­tive di­rec­tor and share­holder at Lon­min in 2012 when the po­lice killed 34 min­ers, is said to have used his po­lit­i­cal in­flu­ence to help Lon­min in its con­flict with the min­ers.

The Far­lam com­mis­sion find­ing that none of the se­nior politi­cians and com­pany ex­ec­u­tives bore any di­rect re­spon­si­bil­ity in the mass killing of the min­ers re­in­forces the per­cep­tion of the pow­er­ful be­ing be­yond the reach of the law. These are per­cep­tions, but in a coun­try where there is a yawn­ing and ev­er­in­creas­ing gap be­tween the poor in their mul­ti­tudes and the elite who revel in profli­gacy, they be­come re­al­ity. This is ex­tremely dan­ger­ous for our democ­racy.

Go­ing back to the For­eign Cor­rupt Prac­tices Act blog, the 2013 list of com­pa­nies be­ing in­ves­ti­gated for cor­rupt prac­tices puts South Africa at num­ber nine, with $350.6 bil­lion (R4.4 tril­lion) worth of cases un­der in­ves­ti­ga­tion. Net1, Gold Fields, Quanta Ser­vices and Wal­mart stores are on the list.

With China lead­ing the pack at $9.24 tril­lion, Brazil sec­ond at $2.246 tril­lion, In­dia third at $1.887 tril­lion, Rus­sia fourth at $2.097 tril­lion, South Africa, at $350.6 bil­lion, does not look too bad – even though there is noth­ing honourable about be­ing on a list of the in­fa­mous in the first in­stance.

Note also that while South Africa may be per­ceived as less cor­rupt than its Brics part­ners, when the num­ber of cases un­der in­ves­ti­ga­tion is ex­am­ined rel­a­tive to GDP, we jump three places to num­ber six. We do seem to be in good com­pany at Brics. Msi­mang is a board mem­ber of Cor­rup­tion Watch. This is part one of two from a speech Msi­mang de­liv­ered at the in­ter­ac­tive 2015 Risk

Lab­o­ra­tory or­gan­ised by the In­sti­tute of Risk Man­age­ment SA

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