Tender irregularities and corruption in South Africa: The need to revisit issues of evidence

• Jurisdiction: South Africa
• Date: 24 May 2019
• Citation: (2016) 29 SACJ 292
• Pages: 292-307
• Published date: 24 May 2019
• Author: Prenisha Sewpersadh

Tender irregularities and corruption

in South Africa: The need to revisit

issues of evidence

PRENISHA SEWPERSADH* and JOHN CANTIUS

MUBANGIZI**

ABSTRACT

While South A frican courts h ave frequently adjudicated matters involving

tender irregula rities, few ndings of corr uption have resulted from such

cases. The court s appear constrained by strict rules p ertaining to admission

of evidence, which may result in thei r refusal to admit evide nce of

alleged corruption in c ases involving tender appeals or reviews. Th is is

notwithstand ing the existence of judicial d iscretion bestowed upon courts

through statute. F urther, the provisions of the Prevention and Com bating

of Corrupt Activit ies Act (PCCAA) could be reformed to ea se evidentiary

burdens relating to the prosec ution of corruption offences. Cor ruption

often involves the exchange of undue grati cation, and this may result i n

the accumulation of ill icit wealth. The creation of an offence of po ssession

of unexplained wealth is encour aged by international law, and may be

credibly justied t aking into account the natu re of tender corruption. The

creation of such an offence withi n the PCCAA may as sist the prosecution

from an evidentiar y perspective – in that the pr osecution would not be

expected to prove that the wealth was obt ained unlawfu lly. Cogent reasons

exist for the appropriate reform of the PCC AA with respec t to evidentiary

issues pertai ning to tender corruption. T he nature of tender corrupt ion, its

prevalence in South Afr ica, and the difcu lties associated with gathe ring

evidence of corruption, just ify such assista nce from the legislature.

1 Introduction

South African cour ts are swamped with cases concern ing complaints

about the award of public tenders.1 Suspicions and allegat ions of

corruption within tender ing processes in the public sector are often

credible. However, an anomaly exists. While the courts f requently

* LLB LLM PhD (U KZN). This contribution s tems from the author’s PhD thesis entit led

‘Corruption and t he Law: An Evaluation of the Legislative Fra mework for Combating

Public Procureme nt Corruption in Sout h Africa’.

** LLB (Makerere) LLM (UC T) LLD (UDW), Professor, Deput y Vice-Chancellor a nd

Head of the College of Law and Ma nagement Studies, University of KwaZulu-Nata l.

1 G roenewald NO v M5 Development s (Cape) (Pty) Ltd 2010 (5) SA 82 (SCA) para [1].

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(2016) 29 SACJ 292

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adjudicate tender procedures, there are often no ndings of corr uption

– despite the existence of such allegations. On the contrar y, the

courts appear to disting uish between procedural irreg ularities on the

one hand and corruption on the other. This is despite the fact t hat

procedural irregula rities in procurement processes have been credibly

linked to corruption. For instance Wi lliams-Elegbe explains t hat:

‘Public procurement is susceptible to corruption due partly to the large sums

involved, the (usually) non-commercial nature of the relationship between

the decision-maker and the public body, the measures of unsupervised

discretion, bureaucratic rules and budgets that may not be tied to specic

goals as well as non-performance-related pay and low pay.’2

Further, in the process of assessing and investigati ng reports of

corruption and irregu larities in public procurement, Corr uption Watch

found that:

‘Deviations from standard procedures, especially without good reason, and

amendments to standard procedures, particularly at a late stage, are strongly

indicative of corruption; and small irregularities, as they rst appear, are very

often symptoms of signicantly larger concerns.’3

It is submitted that a disti nction between procedural irreg ularities

on the one hand and corruption on the other, may cause courts to

prematurely jettison evidence of alleged corr uption in cases involving

the review or appeal of a tender process. One reason for this judicial

rejection of evidence of alleged corruption is that cor ruption is a

criminal of fence, while a matter in which a tender appeal or review

is being undertaken is a civil one. Fu rther, as will be shown later,

courts may refuse to adm it such evidence, since the evidence, in most

instances, does not meet the stand ard requirements for admissibilit y.

It is argued in this paper th at due to the nature of tender corruption,

evidence of it often only comes to light for the rst time duri ng an

appeal or review of a public tender decision and, further, that clear

evidence of corruption is often dif cult to obtain.4 The courts in s uch

instances therefore have a crucial role to play in the ght against tender

corruption. The manner i n which they address issues pertai ning to

evidence of corruption will have a signicant i mpact on whether a

2 S Wi llams-Elegbe F ighting Corruption in Public P rocurement: A Compa rative

Analysis of Disquali cation or Debarment Measure s (2012) 24-25.

3 Cor ruption Watch was star ted as a non-prot organi sation in South Af rica by the

Congress of SA Trade Unions i n January 2012. See para 19, p 11 of ‘Corrupt ion Watch’s

Practice Note and Writ ten Submissions’ as amicus cur iae in AllPay Consolidated

Investment Holdings (P ty) Ltd v CEO of the South African Soci al Security Agency

2014 (1) SA 604 (CC) para [19], available at http://www.corruptionwatch.org.za/

wp-content/uploads/migrated/ CW%20Heads%20 of%20Argument_1.pdf, accessed

on 3 November 2015.

4 Cor ruption Watch op cit (n3) para 46.

Tender irregularities and corruption in South Africa:

The need to revisit issues of evidence 293

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