As once perceptively observed by Nobel Laureate and former president Nelson Mandela: “(l)ittle did we suspect that our own people, when they get that chance, would be as corrupt as the apartheid regime. That is one of the things that has really hurt us.” (Howard Barrell & Sipho Seepe in a piece titled A Sense of Hope published in Mail & Guardian of 2 March 2001)

Mandela’s lamentation should resonate well with the shock of many good, thinking people when they heard the allegations contained in the testimony of Angelo Agrizzi, the former Chief Operating Officer of Bosasa (now trading as African Global Group), at the Deputy Chief Justice Raymond Zondo’s Commission of Inquiry into State Capture.

As stated, these are just allegations that still need to be proved and those implicated remain innocent until proven guilty beyond all reasonable doubt. Nevertheless, his testimony depicts our state of corruption at high levels. Look no further than the 2017 corruption perception index by Transparency International in which South Africa scored 43 points out of 100 compared to the period between 1996 and 2017 when South Africa averaged 46.79 Points.

Another Nobel Laureate, Oscar Arias Sanchez at the opening of the Transparency International Offices in Berlin in November 1993 commented that:

“When the public at large demonstrate for more accountability and decent government in so many countries of the world they are motivated, to no small extent, by anger over corruption: corruption that humiliates the poor who must bribe officials for minimal services; corruption that bankrupts the honest trader; corruption that empowers unscrupulous captains of commerce and their partners, dishonest politicians; corruption which spreads like a cancer to kill all that is decent in society.” (Own emphasis.)

In response to the late president Mandela, I would argue that perhaps we have always known that corruption and corrupt practices ranging from fraud, bribery, embezzlement, illicit enrichment, fronting, nepotism, dealing in influence, political patronage, and maladministration, are commonplace and rife in public service. But, we elected to pay wilful blindness to it at our own peril and at the expense of state institutions. Allowing corruption to fester, particularly in the form of State Capture, is like accepting a coup d’état.

Disappointingly, corruption is widespread despite South Africa being party to some of the international instruments that vociferously denounce corruption; a country that in 2004 consolidated its archaic corruption laws into one of the most comprehensive anti-corruption legislation in the form of the Prevention Corruption and Corrupt Practices Act of 2004 (PRECCA). Likewise, corruption is raging on even when our courts have pronounced in no uncertain terms against the devastation that corruption causes to the society. For instance, the Supreme Court of Appeal in S v Mahlangu, para 26, stated that: “Corruption has plagued the moral fibre of our society to an extent that, to some, it is a way of life. There is a very loud outcry from all corners of society against corruption which nowadays seems fashionable. Some even go as far as stating that corruption is rendering the State dysfunctional.” I add with reference to the United Supreme Court in the United States v Miss Valley Generating Co, 364 US 520, 562 [1961]) which observed that “a democracy is effective only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of malfeasance and corruption”.

Devastating Impacts of Corruption

The Secretary-General of the Organisation of African Unity (OAU), the predecessor of the African Union (AU), in 2004 captured what I regard as the essence of corruption and corrupt practices, declaring that “corruption and impunity are antithetical to the enjoyment of economic, social and cultural rights and the enemy of the principle of good governance”. The adverse macro-social, macro-political and macro-economic impact of corruption need no mentioning, particularly if you are leaving in South Africa at the moment. Corruption goes beyond simply illicit enrichment. As characterised by the AU Anti-Corruption Convention corruption and maladministration dispossesses human rights in general, a typical example is the negative impact of the dysfunctionality of some SOEs like Eskom and Prasa upon ordinary citizens.

South Africa Failing its International Obligations to Act Against Corruption

As we ponder on whether we should be worried about what is unfolding at the Zondo Commission we must also be reminded that South Africa is party to key regional and international instruments that oblige the Member States to put in place effective and efficient detection, control, preventative and punitive measures to combat corruption. The existence of anti-corruption agencies such as the Hawks, the National Prosecuting Authority (NPA), the Independent Police Investigation Directorate (IPID) and institutions including Office of the Public Protector and the Human Rights Commission seems not prohibitive enough to corrupt persons. In fact, there has been instances where some of these institutions had themselves to approach the courts to fight for their survival and independence as was the case in McBride v Minister of Police and Another [2016] ZACC 30, which confirmed the independence of the IPID and for its head not to be removed or interfered with willy-nilly.

In certain cases, private organisations had to approach the courts to confirm the significance of these institutions and assert their independence as was the case in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others [2014] ZACC 32.

Furthermore, the Zondo Commission, like many other legal processes that took place before this commission was set up, sadly reflects negatively on the efficacy or lack thereof of the current legislative and institutional framework dedicated to fighting corruption in South Africa. The effectiveness of our anti-corruption agencies has been and continues to be under serious doubt. And who cares? The Scorpions failed to sting and the Hawks seem to be struggling. Also, the National Prosecuting Authority (NPA) is forever facing a credibility crisis, with known cases of irrational appointments of people who may not be fit and/or proper for the NPA as has been confirmed by courts such as the case of Democratic Alliance v President of the Republic of South Africa and others (2012 [1] SA 417 (SCA). The NPA is also sometimes alleged to have been used as a machete to brandish opponents during political battles – who can forget the infamous Spy Tapes saga. In general, the effectiveness and legitimacy of state institutions have been dented by corruption.

South Africa, if not careful, will slowly slide deeper into the bottomless pit of maladministration, abuse of public office and lack of good governance. This likelihood runs counter to the AU Anti-Corruption Convention that requires state parties to abide by the principles of 1) Respect for democratic principles and institutions, popular participation, the rule of law and good governance. 2) Respect for human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments. 3) Transparency and accountability in the management of public affairs. 4) Promotion of social justice to ensure balanced socio-economic development. 5) Condemnation and rejection of acts of corruption, related offences and impunity.

Moreover, the rising incidents of corruption in the public sphere put the country at the brink of a constitutional crisis, in my view, because the good governance provisions in the Constitution entail also being concerned with preventing corruption in all levels of the government and public service. To use words from the 2018 work titled Theoretical analysis of State Capture and its manifestation as a governance problem in South Africa by Dassah published in The Journal for Transdisciplinary Research in Southern Africa, corruption is “an aberration in governance”.

I would like to sign out with the following questions:

Why is the multi-agencies anti-corruption approach in South Africa failing to display the efficacy of counter-part bodies like the Directorate of Corruption and Economic Crime (DCEC) of Botswana in ensuring that the anti-corruption detection, investigation, and enforcement is efficient and effective?

What is the Government going to do with respect to contracts that are alleged to have been obtained through corrupt means by companies doing business with the state? Would the government be willing to review these contracts and/or approach the courts to nullify them or for intervention? In this regard, I hasten to refer to the 2018 case of Swifambo Rail Leasing v Prasa (1030/2017) [2018] ZASCA 167 (30 November 2018) that involved fronting and a tender awarded irregularly. Deciding on condoning the delay in reviewing the said contract with possible nullification of the contract, the Constitutional Court concluded that when irregularities raised have “unearthed manifestations of corruption, collusion or fraud in the tender, (t)he interests of clean governance would require judicial intervention”.

Is South Africa’s public spending, and control over its budget and budget surpluses, incentive or disincentive for corruption?

When will we, as a society, start to treat impropriety and unethical conduct with the utmost contempt it deserves and start seeking punishment for individuals and companies involved in such conduct instead of glorifying them? DM