Aspects of South African law as it applies to corruption in the workplace

• Jurisdiction: South Africa
• Published date: 03 September 2019
• Author: Rochelle le Roux
• Date: 03 September 2019
• Citation: (2004) 17 SACJ 158
• Pages: 158-177

Aspects of South African Law as it

applies to corruption in the workplace

ROCHELLE LE ROUX*

ABSTRACT

The modern workplace is often the closest interface that individuals have with one of

modern society's greatest malaise: corruption. Job insecurity and the right to privacy,

more particularly cyber privacy, are often perceived as forces undermining the

prevention of corruption in the workplace. This article explores the means at the

disposal of employers and employees to address corruption in the workplace and

endeavours to illustrate that there are aspects of South African law that provide a

framework within which corruption can be addressed in the workplace.

Introduction'

Available research on local and international perceptions

2

of corruption in

South Africa has yielded disturbing results.

3

Unfortunately, these perceptions,

* Bluris (UPE) LLB (UPE) LLM (Stellenbosch) Senior Lecturer, Institute of Development and

Labour Law, Faculty of Law, University of Cape Town.

1

This note is broadly based on a paper presented by the author at the 16th Annual Labour Law

Conference held in Johannesburg on 2-4 July 2003. I am indebted to Professor PJ Schwikkard

(University of Cape Town) for her valuable input.

2

It is impossible to measure actual corruption. The best statisticians can do is provide estimates

based on the perceptions of the extent of corruption. See L Camerer 'Corruption in South

Africa. Results of an expert panel survey' (2001)

155 Monograph

65.

3

A survey conducted by the Centre for Security Studies during 2000 indicates that the

involvement of government institutions in corruption is perceived to be high, with provincial

and local governments being the frontrunners at 33% and 31% respectively. At departmental

level, the criminal justice system (Safety and Security, Police, Justice and Correctional Services)

is perceived to be amongst the most corrupt in government. However, government officials

are not regarded to be the only champions of corruption: 95% of the respondents in the

aforementioned survey indicated that they perceive corruption as a serious problem in areas

of society other than government. It is therefore not surprising that the respondents suspected

that most corruption occurs at the point where private sector contractors interact with

government officials, eg during a tender process. International perspectives are equally

disturbing. On the 2003 Corruption Perceptions Index (CPI), South Africa ranked 48th out of

133 countries (the 1st perceived as being the least corrupt). While 85 countries were ranked

below South Africa, South Africa's individual score has deteriorated compared to 2002 (CPI,

2003). (Incidentally, out of a clean score of 10, Finland scored the highest (9,7)). South Africa

scored only 4,4. Bangladesh, ranked last, scored a mere 1,3 out of 10.) The CPI is essentially a

survey of surveys and focuses on corruption in the public sector and is prepared by

Transparency International, a global non-governmental organisation devoted solely to

curbing corruption. The CPI can be accessed via

http://www.transparency.org/surveys/

index.html#cpi

accessed on 6 September 2004.

158

(2004) 17 SACJ 158

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South African law and workplace corruption



159

although they often do not reflect fact, shape international investor

confidence in ways that will ultimately impact on the state of the national

economy.

4

While corruption is by no means limited to workplaces, employees could

be a valuable resource to uncover corruption in any organisation, but fears of

dismissal and/or of being branded as a troublemaker often prevent

employees from speaking out.

5

In South Africa, this endemic culture of

fear is augmented by high unemployment figures.

6

This, coupled with the

uncertainties brought about by restructuring and retrenchments, do not

create an environment that encourages any employee to risk his or her job

for the sake of being the conqueror of corruption. However, the ability and

willingness of employees to blow the whistle or to speak out against their

colleagues' mischief is but one side of the anti-corruption coin. The truth is

that employers, in an effort to eradicate corruption (and other malpractices),

often need to have a closer look at the conduct of their employees. It is in this

context that workplace privacy becomes an issue, particularly in light of s

14(O of the Constitution of the Republic of South Africa Act 108 of 1996,

which provides that everyone has the right not to have the privacy of their

communications infringed.

This article explores aspects of South African law as it applies to corruption

in the workplace. More particularly this article will:

(a)

focus on the means, legislative or otherwise, at the disposal of

employers and employees to address corruption in the workplace; and

(b)

consider the extent to which the right to privacy in the workplace

complicates the fight against corruption.

It will, however, be difficult to explore the above without a basic

understanding of the crime of corruption. This article will, therefore,

commence with a brief explanation of the history and current status of this

crime. This will be followed by a discussion of whistleblowing, entrapment

and curtailment of gifts as means to address corruption in the workplace.

Thereafter, privacy in the workplace, with particular emphasis on electronic

communications, will be considered.

4

H van Vuuren 'Corruption, perception and foreign direct investment. Counting the cost of the

graft' 2002 11(3)

African Security Review

67 at 72.

5

J Bowers, J Lewis and J Mitchell

Whistleblowing: The New Law

(1999) 10.

Statistics South Africa in its March 2003 Labour Force Survey estimates the official

unemployment rate at 31,2% and indicates that out of 16,8 million economically active

people in South Africa 5,3 million are unemployed. See Statistical Release P0210.

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