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Anti-corruption laws – do we have the balance right?

Ian Ollis is currently a candidate for the Masters of City Planning (Transportation) programme at MIT in Boston. He formerly served as a South African MP, (Shadow Transport, Labour and Education Minister). He has also worked as a city councillor in Johannesburg, briefly lectured at Wits University and ran a real estate company. He has no dogs!

The seemingly stringent – and laudable - requirements of a raft of supposedly protective laws from Fica to Rica have become an onerous burden on ordinary consumers. Meanwhile their very raison d’etre is eroded by the high-level government , criminal and business fat cats who seem exempted. This woeful imbalance not only opens door to mega-bucks corruption, but foments the mounting rage as the little guy suffers and the powerful and well-connected thrive.

Walking through Sandton City over the Easter long weekend, I passed a notice board at the info kiosk declaring that customers would have to produce their IDs to buy a gift card for a birthday present or a house-warming party. The shopping centre would have to actually scan my identity document (presumably keeping a copy) to allow me to make a purchase. Immediately I felt irritated that to spend R250 on a friend, I now had to start having IDs scanned and a lot more time wasted. My better judgement reminded me that to stamp out corruption, rife in other parts, I needed to just accept the new regime of irritations imposed on us by the cache of new legislation enacted over the past five years.

We’ve had to get used to a raft of it, haven’t we? Fica, Rica, National Credit Act, Consumer Protection Act and on and on. MTN keep calling me to get my SIM card “Rica’d” I went and had it done recently, but still they call. I struggle each time to prove my residential address because the Johannesburg City Council has stuffed up my rates and services bill – it doesn’t even indicate the correct address – and I send all my mail to the PO Box up the road, because it’s safer that way. I tried to receive a donation to political activity the other day of about R1,800 and because the money was coming via Western Union, I had to again go and prove my own residential address, which resulted in two trips to the place as they had not advised me correctly on documentation which they require to release the funds.

On the one hand this new legislation is a good thing. South Africa was to a degree shielded from a financial meltdown due to its sound financial legislation, regulating the banking sector – or so most of us believe. However, at least one commentator has recently indicated that it was the excellent work of the Registrar of Banks, the high local interest rates and the exchange controls that protected SA from the global “subprime products” crisis. This would indicate the magic might not have been wrought by Fica, Rica and the like. Have we been spun a yarn?

At a crass level the theory is that you have to make it difficult to launder money in SA, limiting the opportunity for crime and at the same time preventing the economy from overheating. We are also preventing people borrowing more than they can afford by forcing financial institutions to assess affordability for the debt. And we have added to that the need to adequately make customers aware of the implications of a purchase so they fully understand what they are purchasing and giving them a cooling-off period too. Of course, in the process we are to a degree treating our consumers like children, protecting them from themselves. Solely on the belief that our banks remained stable during the economic crisis, we think this sort of legislation is responsible for it and working. It’s almost like a panacea for all economic ills.

However, I would argue that the “nannying” of consumers has caused the pendulum to swing too far in one direction, while we have left a gaping hole in our legislation at an entirely different level allowing serious corruption and crime by the large criminal elements this consumer level legislation is never going to address.

Let me explain. South African companies trading in Africa are often pressured into using bribes and inappropriate cash incentives to smooth the path of business at levels that are alarming. At another level, there appears to be a series of corrupt relationships developing between key political figures and business leaders inside the country which leads to lucrative infrastructure contracts, mining and mineral rights and supplying of goods and services to the state to be awarded in return for politically motivated favours and financial incentives. Finally, our weak borders and entry points allow for wholesale corruption so goods, minerals and cash can enter and exit our economy.

Let us examine a few examples, as yet largely untested in court, but widely reported in the media, in Parliament and in various reports.

  1. Large SA retail, supermarket and or restaurant chains having to use inappropriate measures to do business in other African countries. It is widely discussed in boardrooms across SA that it is incredibly difficult to get one’s good’s released from the docks in Lagos, Nigeria, when doing business in that country and the level of bribes needing to be paid to get the goods to the stores has become disgustingly large. So too to repatriate profits to SA apparently requires the payment of inappropriate fees to banking officials in Nigeria to get the money released.
  2. Border control staff often refuse to release goods travelling by truck across borders even in SADC countries. It has become common knowledge that briefcases of cash are sometimes required to get trucks of raw materials and goods released from the Zambian border controls as it has become difficult to keep pace with ever-changing documentary “requirements” of officials there.
  3. Police often report, off the record, the number of foreign nationals from particularly West African countries living in SA (in places like Windsor, Hillbrow, Joubert Park and elsewhere in Johannesburg) who walk around openly with rolls of money in their pockets presumably ill-gotten gains from drugs, prostitution or even perhaps human trafficking.
  4. Textile and garment workers often complain about the fact that Customs and Excise officials in Durban are ruining their jobs because they either cannot tell the difference between silk, cotton, wool, polyester, flax or other textiles leading them to rely on unscrupulous importers to identify their own goods or else they accept brides and look the other way, allowing new goods in as “second-hand” and thus attracting lower import duties. (local jobs are lost).
  5. Finally, there are several stories of suitcases of money or travellers cheques travelling in and out of the country accompanied by senior South African business leaders without any limitations of Fica, Rica, NCR or CPA acts limiting them in anyway. Millions of rands of unexplained cash have recently been found on business leaders from SA travelling abroad in one or two highly publicised cases.

Governments such as that in the US, require all kinds of declarations from executive and non-executive directors of companies and CEOs regarding the payment of bribes, inappropriate incentives and the like to reduce this level of corruption occurring internationally. We have no such requirements. Directors are prosecuted where evidence to the contrary turns up. In SA, our legislation either doesn’t cover this kind of corruption or the officials we employ in Customs and Excise, the SAPS and the Reserve Bank are not doing their jobs. On the surface of things, it even appears that high-placed individuals in government are protecting those on the take. In this kind of environment, what does it matter whether or not I have my ID with me when I want to buy a R250 gift voucher at Sandton City. Fat cats are laundering millions and running very large systems of corruption while the rest of us mere mortals live with the irritation of proving who we are, where we live and what our identity number is to pay a TV licence or buy a new cellphone. Shouldn’t the pendulum swing the other way for a while? DM


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