By Kotie Geldenhuys
The mere mention of corruption, makes one think about State capture, the Guptas, former President Jacob Zuma and a former National Commissioner, namely the late Jackie Selebi. Although corruption is nothing new, it seems that it got out of hand over the past decade or so. There is a general feeling of distrust, not only in terms of whom can be trusted, but also in terms of systems and whether the corrupt will ever have to pay for their crimes. The general public is not alone in voicing their feelings. On 14 October 2019, Adv Kevin Malunga, the outgoing Deputy Public Protector of the Republic of South Africa tweeted: "The tragedy of South Africa’s criminal justice system is that the troubled young mother or juvenile who steals baby formula etc rots in jail for months as an awaiting trial prisoner while nothing happens to a resourced politician who is linked to corruption by forensic evidence."
Corruption has the potential to cripple all facets of society: it deprives people of quality education and job opportunities, undermines efforts to fight poverty, inequality and unemployment and also robs people of safety, health, infrastructure and a better quality of life. During an Institute for Security Studies (ISS) Seminar that was held in Pretoria on 24 October 2019, Adv Andy Mothibi, the Head of the Special Investigating Unit (SIU), added that corruption leads to a waste of public resources, undermines peace and democracy, deprives the public sector of valuable revenues and also reduces private sector productivity.
According to Transparency International’s 2018 Corruption Perception Index, the most corrupt countries are Somalia (ranked at 180), followed by Syria, South Sudan, Yemen, North Korea, Sudan, Guinea Bissau, Equatorial Guinea, Afghanistan, Libya, Burundi, Venezuela and Iraq. South Africa finds itself in the 73rd position (Transparency International, 2019). Corruption Watch’s 2018 Annual Report notes that the majority of the corruption in South Africa occurs at a provincial government level (35%) followed by national government (27%) and local government (23%), while the rest of the figure consists of state-owned entities and the private sector (Corruption Watch, 2018).
Transparency International’s Global Corruption Barometer confirms that corruption hits poor people the hardest, with devastating consequences. A bribe demanded by a police official may mean that a family cannot afford school fees or even food to eat. Findings from Mexico, for example, show that the typical poor family must spend one third of their income on bribes (Transparency International, 2019). The situation is so bad in the most corrupt countries that their populations face a combination of insecurity, resource shortage, a weak and even absent state, poor infrastructures, declining health and low-quality education. But what is corruption and what is being done about it in South Africa?
The terms "corruption" and "bribery" are often used interchangeably which is confusing. The National Head of the Directorate for Priority Crime Investigation (DPCI) (also known as the Hawks), Lt-Gen Godfrey Lebeya, explained to Servamus that a crime called bribery, which is a common law crime, previously existed. At some point the legislature in South Africa found that the bribery law left some of the parties involved in this crime outside of this scope of investigation. "Bribery was mostly concerned with government officials and when one came across other parties that were involved, there was not a law that covers them," he said. To supplement and to close those gaps, South Africa passed the Corruption Act 94 of 1992 which abolished bribery as a crime. The Corruption Act 94 of 1992 was repealed by the Prevention and Combating of Corrupt Activities Act 12 of 2004 which deals with corruption and not bribery. Lt-Gen Lebeya said that the general reference to the act of bribery is incorrect and that its meaning is more that "a person is corrupting another one".
During the Intelligence Transfer Centre’s (ITC) 7th Annual Government Law Conference which was held on 29 May 2019 in Pretoria, Adv Gerrie Nel said that we tend to over-complicate corruption as people seldom read the definition of corruption and therefore have a misconception about what corruption entails. According to the Prevention and Combating of Corrupt Activities Act 12 of 2004, corruption occurs when any person directly or indirectly accepts or offers (or agrees to offer or accept) any form of gratification (not necessarily monetary) that will either benefit themselves or another person. In terms of this legislation, corrupt activities are described as acts that involve an improper or corrupt exchange between two or more parties. Adv Nel argued that if we understood the corruption charges against Jackie Selebi as well as against Schabir Shaik, we would be in a better position to understand corruption.
During the interview with Lt-Gen Lebeya he noted that the Prevention and Combating of Corrupt Activities Act 12 of 2004 provides for a crime called foreign bribery which is a transnational crime that involves corruption. "We can say that it is transnational corruption as the suspects are in more than one country, including South Africa," he explained. Since bribery is still a crime that has not been abolished internationally and South Africa has signed treaties which refer to foreign briberies, the word bribery again appears in our space. The offence itself is addressed in Act 12 of 2004 which means that offenders will be prosecuted under this same statute.