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