What South Africa gets right and wrong about corruption: public protector
Public Protector Busisiwe Mkhwebane has spoken out against South Africa’s coronavirus and public sector corruption and the role of the legal system in tackling it.
Mkhwebane said that while there has been a lot of reporting around dodgy tenders in recent weeks, there is a clear clarification in law around corruption and punishments for criminals.
“A lot of the time, in South Africa, we hasten to label, incorrectly, any malady that we come across as ‘corruption’.
“We often refer wrongly to irregular, fruitless or wasteful expenditure or maladministration in the public sector as corruption,” she said.
However, Mkhwebane pointed to the Prevention and Combating of Corrupt Activities Act (PCCAA) which defines corruption as involving the influencing of a party by another to make a dishonest decision for gratification.
PP: Apart from obvious forums such as the judiciary, Parliament, the Prosecution Authority including the Asset Forfeiture Unit and the Witness Protection Unit, and the police including the Directorate for Priority Crime Investigation, there is the Public Protector.
— Public Protector SA (@PublicProtector) August 24, 2020
She provided the example of a motorist who commits a traffic offence and pays a traffic officer a bribe (offered or solicited) to avoid a penalty. Here, the motorist is guilty of corruption and so is the traffic officer involved.
Similarly, a businessman who pays a kickback or “facilitation fee” (offered or solicited) to influence the awarding of a tender is guilty of corruption just as the recipient of the kickback or facilitation fee is.
“I emphasise the guilt of both the payer of the bribe and the recipient because corruption is a two-way street. There is the corruptor and there is the corrupted. Both these players perpetuate this crime.”
Mkhwebane said that a number of pieces of legislation, commissions of enquiry and organisations – including a free press – help hold corrupt individuals to account.
A crime against humanity?
Speaking on the issue of whether corruption can be considered a ‘crime against humanity’, Mkhwebane said that it will have to be state or organisation-sanctioned in line with paragraph 2 of Article 7 of the Rome Statute of the International Criminal Court.
“A simple example of this is apartheid, which was a policy of the erstwhile national party government. A slew of laws were enacted one after the other to entrench this policy, which was later considered a crime against humanity.”
Mkhwebane said the same cannot be said about corruption.
“It is not the policy of the post-apartheid, democratic government. In fact, as indicated, anti-corruption is government policy as can be gleaned from Chapter 14 of the National Development Policy.”
“This is not to suggest that corruption should be taken lightly. Of course, there must be serious repercussions for the corrupt. They must be prosecuted, there must be convictions and the guilty must languish in jail. This goes without saying.”
She added that the country has enough laws and institutions to tackle corruption in the country – the problem lies with implementation.
PP: We have already established that, the same cannot be said about corruption. It is not the policy of the post-apartheid, democratic government.
In fact, as indicated, anti-corruption is government policy as can be gleaned from Chapter 14 of the NDP.
— Public Protector SA (@PublicProtector) August 24, 2020
Often investigations have serious shortcomings, leading to unsuccessful prosecutions and sometimes the cases don’t even get to court, she said.
“We also need to look into the protection and incentivising of whistle-blowers. Currently, it does not appear as though they enjoy adequate protection. A lot of them blow the whistle at their own peril – with possible suspensions, loss of their jobs or even attempts on their lives.”
High profile cases
Mkhwebane acknowledged that a criticism often levelled against the National Prosecuting Authority is that there is a low rate of successful prosecutions where high profile figures are involved.
“Except for the case of the late former national police commissioner Jackie Selebi, and that of former Northern Cape MEC, John Block, sentenced to 15 years in jail for corruption and money laundering, no other case involving a big name comes to mind.”
PP: Except for the case of the late former national police commissioner Jackie Selebi and that of former Northern Cape MEC, John Block, sentenced to 15 years in jail for corruption and money laundering, no other case involving a big name comes to mind.
— Public Protector SA (@PublicProtector) August 24, 2020
She said that a lot of the notable cases of alleged corruption are still before the courts and other forums, and thus have yet to be proven.
“This includes the Steinhoff fraud case, which has been described as the biggest corporate scandal in the country to date. As much as R20 billion rand in government pensioners’ money invested in Steinhoff through the Public Investment Corporation was lost.”
Read: Parliament warns of another Covid-19 corruption scandal in South Africa
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