The prevention and detection of corruption and bribery in South Africa

• Date: 01 January 2001
• DOI: 10.10520/EJC73780
• Author: J.J. Henning,G.J. Ebersohn
• Published date: 01 January 2001
• Pages: 51-87

THE PREVENTION AND DETECTION OF

CORRUPTION AND BRIBERY IN SOUTH AFRICA

J J Henning

Dean of the Faculty of Law, Director of the Centre for Business Law and

Head of the Research Unit for Economic Crime, University of the Free

State, Bloemfontein, South Africa.

G J Ebersöhn

Researcher, Dean’s Office, Faculty of Law, University of the Free Sate.

All power tends to corrupt, and absolute power corrupts

absolutely (Lord Acton).1

1. Introduction

More than two centuries ago, Charles Dickens2observed:

[I]n England ...[d]aring burglaries by armed men, and high-

way robberies, took place in the capital itself every night;

families were publicly cautioned not to go out of town with-

out removing their furniture to upholsterers’ warehouses for

security; the highwayman in the dark was a City tradesman

in the light, and, being recognised and challenged by his

fellow-tradesman . .., gallantly shot him through the head

and rode away. [M]usketeers went into St Giles’s to search

for contraband goods, and the mob fired on the musket-

eers, and the musketeers fired on the mob, and nobody

thought any of these occurrences much out of the common

way. [A]ll these things, and a thousand like them, came to

pass in and close upon the dear old year one thousand

seven hundred and seventy-five.

Although the quotation is not necessarily applicable in all its gory

detail to the South Africa of 1999, there may be enough that is re-

levant to cause at least an uncomfortable shiver of recognition. In

any event even the most casual purveyor of the situation of bribery

and corruption in South Africa from the viewpoint of effective re-

medies, competent enforcement of sanctions, regional co-opera-

tion for the harmonisation of legislation and the implementation of

carefully weighed proposals for proactive legal reform, may to

some extent be hard put upon to find much more than cold com-

fort for his or her investigative efforts. There are, however, some

very obvious exceptions and the current situation is changing for

the better through innovative legislation.

51

1Du Toit 1998: 160.

2ATale of Two Cities. Book the First. Recalled to Life. Chapter One:

The period.

The ambit of this paper is limited to a very brief overview of South

African legislation, either presently in force or still in draft form,

dealing with the combating and prevention of corruption and bri-

bery in the Republic.

One of the most troubling angles to the battle against corruption,

is the exact ambit of this crime and whether it can be perpetrated

only in the public sphere.

2. Defining “corruption”

The Oxford Concise Dictionary defines corruption as

the use of corrupt practices, esp. bribery or fraudulent activity.

Corruption basically entails fraud and theft of government funds,3

maladministration or impropriety with public money,4as well as bri-

bery and abuses of power.5Consequently corruption may be de-

fined in general as the unlawful and immoral use of office in the

public or private sector for personal enrichment.6

It may well be noted that most instruments of international law limit

the ambit of corruption and bribery to the public sphere. In this

manner, the Convention on Combating Bribery in International Bu-

siness Transactions of the Organisation for Economic Co-opera-

tion and Development targets only the use of bribery as an instru-

ment of corruption in cases where officials are involved. In the

same manner the Inter-American Convention against Corruption

targets public institutions only and the World Trade Organisation

only the abuse of public power for private gain.

While these treaties contain certain principles, each signatory to it

is left to introduce these principles into its national law in its own

manner, further colouring the interpretation of the term corruption.

In South African Law, corruption has been statutorily extended into

both the public and private spheres.

3. The need to combat corruption

Corruption encourages abuse-of-office offences and fraud in the

public and private sector.7As far as the prevalence of corruption

in South Africa is concerned it is hardly possible to refer to all in-

52

3Anonymous 1996(a): 3.

4Anonymous 1996(b): 6.

5Esterhuysen 1999: 1.

6Anonymous 1993: 19.

7Anonymous 1994: 17.

stances. Corruption is present to some extent in all the depart-

ments of state.8In the first six months of the previous year alone,

29 556 cases of corruption involving a value of approximately

R2.17 billion were reported to the commercial branch of the South

African Police Service.9

Afew examples of the forms of corruption in these cases will have

to suffice:

•fraud is prevalent in the awarding of state housing subsidies;

•state officers and politicians sell state farms to themselves and

resell it for ten times the initial purchase price;

•irregularities regarding state tenders are the norm;

•lawyers submit false claims to the Legal Aid Board;

•police officials participate in bank robberies; and

•medical prescriptions handed to pharmacists fund groceries

while pharmacists claim the amounts of the prescriptions from

the medical aid schemes.

Corruption undermines the South African democracy directly.10

The South African legal system boasts a solid legislative frame-

work for both the prevention and prosecution of corruption at all

levels of state and, most significantly, also in the private sphere.

The Corruption Act 94 of 1992 forms a sturdy basis for the com-

bating of abuses through its broad definition of corruption and en-

suing criminalisization of it.

Most South African statutes are aimed at ensuring transparent

and responsible national state governance and the effective ma-

nagement of public funds. In this respect attention will be given to:

a) The Constitution of the Republic of South Africa 108 of 1996,

with its imperative to accountable administration;

i) The Auditor General Act which outlines procedures for ef-

fective accounting and the prevention of corruption at

governmental level through sound financial practice;

ii) The Reporting by Public Entities Act and its successor the

Public Finance Management Act, which targets public

funds, inclusive of those in the hands of para-statal orga-

nisations, and sound financial accountability in respect

thereof;

iii) Acts creating structures supporting the system outlined in

the acts above through the provision of adequate addi-

53

8Anonymous 1998: 12.

9Anonymous 1999(a): 1.

10 Du Toit: 153.