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 justied 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 difcu 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 specic
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 signicantly 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 signicant 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-prot 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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