national integrity systems transparency international ... · national integrity systems...

National Integrity Systems 2005

National Integrity Systems

Transparency International

Country Study Report

Final Draft

South Africa 2005

Report Author Hennie van Vuuren

Senior Researcher

Anti-Corruption Strategies

Institute for Security Studies (ISS)

Cape Town, South Africa

E-mail: [email protected]


South Africa 2

Acknowledgements � Institute for Security Studies (ISS) Anti-Corruption Programme Research Interns,

who assisted with aspects of the initial desktop research and commented on draft versions, particularly Phindile Wilhemina Xaba (MA, University of Cape Town), Nobuntu Mtwa (MPA, University of the Western Cape) and Andile Sokomani (MA, University of Cape Town).

� Transparency South Africa (T-SA) and in particular Board members Dr. Daryl Balia and Hassen Lorgat for their support and commitment to the completion of the report.

� Marianne Camerer, formerly with the ISS and now Director of the Global Access Project at the Centre for Public Integrity, who acted as a consultant to the project prior to her departure for Washington DC.

� National Integrity Systems (NIS) Focus Group Participants, who commented on an earlier draft of this report:

� Colm Allan, Public Service Accountability Monitor;

� Dr. Daryl Balia, T-SA;

� Lorato Banda, Political Information and Monitoring Service, Idasa;

� Ishara Bodasing, Department of Public Service and Administration Anti-Corruption Unit;

� Supt. Jenny Cunnigham, Strategic Management Development, South African Police Service;

� Director Naresh Lutchman, Strategic Management Development, South African Police Service;

� Mamiki Mosheshe, Office of the Public Protector;

� Duxita Mistry, Senior Researcher, ISS; and

� Dr. Ugi Zvekic, United Nations Office on Drugs and Crime – Southern Africa.

The National Integrity Systems TI Country Study Report South Africa 2005 was made possible by funding from the United Kingdom Government’s Department for International Development.

All material contained in this report was believed to be accurate as of March 2005.

Every effort has been made to verify the information contained herein, including allegations. Nevertheless, Transparency International does not accept responsibility for the consequences of the use of this information for other purposes or in other contexts. © 2005 Transparency International Transparency International Secretariat Otto-Suhr-Allee 97-99 10585 Berlin Germany http://www.transparency.org


South Africa 3

Contents

List of tables ......................................................................................................................... 4 List of figures ....................................................................................................................... 4 Abbreviations ....................................................................................................................... 5 Executive summary ............................................................................................................. 8 Country overview................................................................................................................. 9 Corruption profile............................................................................................................... 12

Causes and consequences .................................................................................12 Measuring the impact .......................................................................................23

The National Integrity System .......................................................................................... 30 Executive ........................................................................................................30 Legislature ......................................................................................................33 Political parties ................................................................................................42 Independent Electoral Commission .....................................................................44 Supreme Audit Institution .................................................................................45 Judiciary .........................................................................................................48 Civil service .....................................................................................................52 Police and prosecutors ......................................................................................57 Public procurement...........................................................................................64 Public Protector (Ombudsman)...........................................................................68 Investigative/Watchdog Agencies .......................................................................71 Media .............................................................................................................82 Civil society .....................................................................................................87 Provincial and local government .........................................................................91 Cross-sectoral initiatives ...................................................................................98 Private sector ..................................................................................................99

Anti-corruption activities ................................................................................................ 104 Discussion of key issues ................................................................................................ 114

The NIS ........................................................................................................ 114 Effectiveness of government and donor-supported activities ................................ 117 Priorities and recommendations ....................................................................... 119

Endnotes........................................................................................................................... 124 References........................................................................................................................ 137 Legislation………………………………………………………………………………………..144

Interviews………………………………………………………………………………………………………………………….146


South Africa 4

List of tables Table 1 Prosecutions and convictions under the Corruption Act.....................................25 Table 2 Markinor Omnibus survey question................................................................28 Table 3 The state of parties represented in the National Assembly3rd Term (2004–2009).35 Table 4 Submission of financial disclosure forms.........................................................56 Table 5 Commercial crime cases...............................................................................58 Table 6 Corruption within the SAPS 1996–2001..........................................................59

List of figures Figure 1 Percentage of all those who were asked to pay a bribe in the past year, by

department or sector.........................................................................................26 Figure 2 Percentage of respondents, of those who were asked, who paid the bribe, in the

past year .........................................................................................................27 Figure 3 Reasons for Not Reporting Requests for Bribes to the Authorities, All Respondents

......................................................................................................................28 Figure 4 The NPA....................................................................................................63

Currency The South African Rand (R) is used as the unit of currency throughout this report. At the time of finalising this study (March 2005), the currency had the following approximate exchange value with major trading currencies:

USD$1= R6

GBP£1= R11

Euro€1= R8

It should be noted that the Rand has fluctuated against all major currencies in recent years. The value of the currency moved from trading on par with the US dollar in the early 1980s to approximately R4:$1 by the late 1990s. During late 2001/early 2002 the currency was placed under severe pressure by speculators and it depreciated to an all time low of R10:$1. Despite showing promising signs of continued buoyancy since 2003, currency fluctuation has caused massive swings in the price-tags of large procurement deals such as the ‘arms deal,’ which was concluded in 1999.


South Africa 5

Abbreviations ACDP African Christian Democratic Party

AFU Asset Forfeiture Unit

AGSA Auditor-General of South Africa

ANC African National Congress

AU African Union

BAC Business Against Crime

BAE British Aerospace Systems

BIS Budget Information Service (Idasa)

BSA Business South Africa

BUSA Business Unity South Africa

Case Community Agency for Social Enquiry

CCAR Country Corruption Assessment Report

CEO Chief Executive Officer

CHAMSA Chambers of Commerce and Industry South Africa

Cosatu Congress of South African Trade Unions

Core Co-operative for Research and Education

CBO Community Based Organisation

CSO Civil society organisations

CSVR Centre for the Study of Violence and Reconciliation

DA Democratic Alliance

DPLG Department of Provincial and Local Government

DPSA Department of Public Service and Communication

DSO Directorate of Special Operations

EADS European Aeronautics & Defence Systems

ECAAR Economists Allied for Arms Reduction

FXI Freedom of Expression Institute

Icasa Independent Communications Authority of South Africa

ICD Independent Complaints Directorate

ID Independent Democrats

Idasa Institute for Democracy in South Africa

IEC Independent Electoral Commission

IFP Inkatha Freedom Party

IOD Institute of Directors

ISS Institute for Security Studies

IMT Interim Management Team

IMU Integrity Management Unit (NPA)

JACTT Joint Anti-Corruption Task Team

JIT Joint Investigations Team


South Africa 6

JSE Johannesburg Stock Exchange

LPM Landless People’s Movement

M&G Mail & Guardian

MEC Member of the Executive Committee

MP Member of Parliament

MRM Moral Regeneration Movement

NAC Network Against Corruption

NACF National Anti-Corruption Forum

Nafcoc National African Federated Chamber of Commerce

NCOP National Council of Provinces

NDPP National Director of Public Prosecutions

NEC National Executive Committee (of the ANC)

NEPAD New Partnership for Africa’s Development

NIA National Intelligence Agency

NIS National Integrity System

NNP New National Party

NP National Party

NPA National Prosecuting Authority

NRLF National Religious Leaders Forum

ODAC Open Democracy Advice Centre

OECD Organisation for Economic Cooperation and Development

PAC Pan African Congress

PAIA Promotion of Access to Information Act

PFMA Public Finance Management Act

POAIA Protection of Access to Information Act

PP Public Prosecutor

PSAM Public Service Accountability Monitor

PSC Public Service Commission

RDP Reconstruction and Development Programme

SABC South African Broadcasting Corporation

SACC South African Council of Churches

Sacob South African Chamber of Business

SACP South African Communist Party

SADC Southern African Development Community

SAHRIT Southern African Human Rights Trust

Salga South African Local Government Association

Sangoco South African Non-Governmental Organisations Coalition

SAOC South African Oil Company

SAPS South African Police Service

Sars South African Revenue Service

SCCU Special Commercial Crimes Unit


South Africa 7

SCMF Supply Chain Management Framework

Scopa Standing Committee on Public Accounts

Seta Sectoral Education and Training Authority

SIU Special Investigations Unit

T-SA Transparency South Africa

UDM United Democratic Movement


South Africa 8

South Africa

Executive summary “South Africa is in need of a strong national integrity system”

Frene Ginwala, Speaker of Parliament (1994–2004)1

The South African National Integrity System (NIS) defies the model of a house or building or temple, and instead could be compared to a tree, organic and extremely complex in its make up, its branches extending out as a means to provide shade for the citizens of this fledgling non-racial democracy, not always successful but growing. The roots of this tree have, however, not been cultivated only by struggle but also by oppression and they therefore also present a symbol of an apartheid-era past, which, as Justice Malala 2points out, “remains powerfully within us”.3 Another one of the countries leading editors, Mondli Makhanya 4remarked: ”We have built something unique on the southern tip of the African continent. Out of the ruins of a despotic, corrupt state…we have, in less than a decade, constructed a nation with institutions and values that took other peoples decades and centuries to mold. The trick is to make these institutions and values work, and not let them buckle under any pressure.”

This National Integrity Study examines the way in which the pillars, or branches if one wishes, of the South African NIS operate. The findings indicate that the country has developed an advanced framework of law, strategy and institutions that have a mandate to combat corruption. Specialised anti-corruption institutions have been set up, together with state institutions, which are mandated by their constitutions to support constitutional democracy. South Africa has developed a bold new piece of anti-corruption law, which complements existing legislation that promotes an open accountable democracy. However, despite the fact that political will does exist to tackle corruption, the implementation of anti-corruption measures presents a serious challenge.

Corruption poses a major challenge at provincial and local government level, negatively affecting the capacity of the public sector to deliver services to the poor. At a national level, almost R2 billion was lost in 2003 to corruption in Social Welfare, the Labour Ministry may have lost as much as R1 billion of the money allocated to skills development, and the Road Accident Fund, which has long been susceptible to fraud and corruption, may have lost R1 billion in the past year as well. The private sector, a major source of corruption, may be losing as much as R50 billion a year to fraud and corruption.

The study proposes certain key reforms that could be taken to deal with corruption in all sectors, including the need for civil society and the media to be supported in their oversight and monitoring functions and the necessity to see Parliament regain its role as ‘supreme oversight body’. Together with the implementation of the Prevention and Combating of Corrupt Activities Act, the report supports the proposal that the private funding of political parties be regulated, together with post-public sector employment. This also needs to be matched by the enforcement of disclosure provisions governing gifts to, and interests of, members of the public sector and parliament. Increased co-operation between anti-corruption agencies, together with enhanced capacity, are seen as key. However, the report suggests that the time might be ripe to revisit the debate around a single vs. multiple agency approach. The report also suggests that South Africa’s continued disparity in wealth may in fact be a contributing factor leading to corruption. The study identifies the need to involve citizens in combating corruption through public awareness campaigns as another priority. Finally – the report suggests that while we look forward, SA may now be ready to look backward, and makes recommendations for investigating crimes of corruption under apartheid in order to return plundered wealth to its people.

Although not perfect the South African NIS has come a long way in 10 short years since the advent of democratic rule. It is now necessary to ensure that this tree is nurtured, as the challenges it faces are manifold.


South Africa 9

Country overview “Corruption and misadministration are inconsistent with the rule of law and the fundamental values of our Constitution. They undermine the constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms. They are the antithesis of the open, accountable, democratic government required by the Constitution. If allowed to go unchecked and unpunished they will pose a serious threat to our democratic state.”

President of the SA Constitutional Court (Judge Arthur Chaskalson), 2000

South Africa is a constitutional democracy with a population of 44.8 million people, according to the official 2001 national census.5 Following nearly 350 years of colonial and apartheid rule, the country’s first democratic elections took place on 27 April 1994. This ensured a transition from the race-based system of oligarchic rule, in which the white minority were the primary beneficiaries, to a system of democratic governance with a strong emphasis on a culture of human rights. Two further national elections, considered by all parties to be free and fair, took place in 1999 and 2004.

The Constitution of the Republic of South Africa (1996) was drafted by the Constitutional Assembly and includes a Bill of Rights that binds the legislature, the Executive, the judiciary and all organs of state. It also specifically guarantees equality on the “grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth”.6 The Bill of Rights is an important ‘democratising agent’ as it not only guarantees equality, but also socio-economic rights (such as housing health care, food, water, social security, the rights of children and education). Political rights, freedom of association, access to information and the necessity for just administrative action are all entrenched in the Bill of Rights. Any Bill drafted by a legislature which seeks to amend the Constitution requires a two-thirds majority in the National Assembly and furthermore, a vote of support from six of the nine provinces represented in the National Council of Provinces (NCOP). In addition, an attempt to change Chapter 1 of the Constitution, which sets out the state’s founding values, requires a 75% majority in the National Assembly.

Although not a classical federal democracy, the Constitution does make provision for a three-tier system of ‘co-operative governance’ as well as an independent judiciary. The national, provincial and local levels of government all have legislative and executive authority in their own spheres, and are defined in the Constitution as "distinctive, interdependent and interrelated”.7 Operating at both national and provincial levels are advisory bodies drawn from South Africa's traditional leaders. There has been a call among many traditional leaders, particularly those aligned with opposition parties, for a wider sphere of influence. This has not, however, been supported by the majority African National Congress (ANC) government.

The South African Parliament is located in Cape Town while the Executive seat of government is in Pretoria. Legislative authority is vested in parliament, which consists of two houses, the National Assembly and the National Council of Provinces (NCOP). The Constitution sets out the powers and function of parliament. The National Assembly consists of no more than 400 members elected for a five-year term on the basis of a common voters’ roll. The number of National Assembly seats awarded to each political party is in proportion to the outcome of the national election, which is held every five years. In South Africa’s third democratic general election in April 2004, the ANC won 279 seats. It was followed by the Democratic Alliance (DA) with 50 seats, the Inkatha Freedom Party (IFP) with 28, the United Democratic Movement (UDM) with nine, the New National Party (NNP) and Independent Democrats (ID) with seven and the African Christian Democratic Party (ACDP) with six. Other smaller parties are also represented, including the Pan Africanist Congress of Azania (PAC) and the Freedom Front+.8

Cabinet members, Deputy Ministers or a member of a National Assembly committee introduce legislation in the National Assembly. Bills passed in the National Assembly must


South Africa 10

be referred to the NCOP for consideration and the NCOP may pass, propose amendments to, or reject a Bill. The National Assembly must reconsider a Bill in cases of amendments or rejections, and pass it again with or without amendments.

”This process is simple with regard to Bills affecting national functions such as defence, foreign affairs and justice, when each NCOP delegate has one vote. However, when the NCOP considers a Bill that affects the provinces—on functions such as security, welfare, education and health—each province has one vote. This is to ensure that provinces first reach consensus individually on the Bill.”9

In terms of authority the National Assembly may override the NCOP by a two-thirds majority, however, given the fact that the ANC has held a majority in both houses during the past years, there has seldom been conflict between the two houses.

The NCOP also participates in the legislative process. Through this body national and provincial interests are aligned in national legislation that affects the provinces. The NCOP consists of 54 permanent members and 36 special delegates, and elects its own chairperson. Each of South Africa’s nine provinces sends 10 representatives to the NCOP—six permanent members, and four special delegates headed by the provincial premier or a member of the provincial legislature designated by the premier. In addition, local (municipal) government representatives may participate in the NCOP (but do not have the right to vote) —10 part-time members represent different categories of municipalities. The South African Local Government Association (Salga) joined the NCOP in February 1998.10

In terms of delegated functions of governance each of the nine provinces also has a provincial legislature, which focus on areas of security, health, welfare and education. In addition each province has a Provincial Executive (Cabinet), with the premier and Members of the Executive Committee (MECs) at its helm.

The President, elected by the National Assembly from among its members, is the Executive Head of State and leads the Cabinet and may not serve more than two five-year terms in office. President Nelson Mandela opted to only serve one term of office (1994–1999) while President Thabo Mbeki led his party for a second time in the 2004 election campaign and is serving a second term of office. Mbeki has dealt decisively with internal critique within the ANC, particularly that emanating from ANC alliance partners in the trade unions and the South African Communist Party (SACP). They have been at odds with the government’s neo-liberal macro-economic policy, which has produced growth but not sufficient jobs to stem the tide of rising unemployment, as well as the Executive’s lacklustre approach towards providing anti-retroviral drugs for citizens infected with HIV/Aids. The Cabinet consists of the President, the Deputy President and 25 Ministers. The President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them. All but two Ministers must be selected from among the members of the National Assembly by the President. The members of Cabinet are accountable individually and collectively to parliament. Deputy Ministers are appointed by the President from among National Assembly members.11

In addition, specific independent state institutions have been created to “support constitutional democracy” as per Chapter 9 of the Constitution. These institutions are protected against outside interference and are accountable to the National Assembly and must report on their activities and the performance of their functions to the Assembly at least once a year.12 The Heads of these institutions are also selected by Parliament. These are the:

� Public Protector (Ombudsperson);

� Auditor-General of South Africa (AGSA);

� Electoral Commission;

� Human Rights Commission;

� Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; and

� Commission for Gender Equality.


South Africa 11

South Africa does not have a single anti-corruption agency but has instead vested a range of powers in a number of a bodies13 such as the AGSA, Public Protector, Public Service Commission (PSC) and Independent Complaints Directorate (constitutional and oversight bodies). Equally the state is served by criminal justice agencies including the South African Police Service (SAPS), National Prosecuting Authority (NPA), Directorate of Special Operations (DSO, commonly known as the Scorpions14), Asset Forfeiture Unit and Special Investigations Unit (SIU). Other stakeholders are the Department of Public Service and Administration (DPSA), National Intelligence Agency (NIA), South African Revenue Service (Sars) and the cross-sectoral National Anti-Corruption Forum (NACF).

Freedom of expression is guaranteed in the Constitution and South Africa has a diverse spread of media in radio, television, print and internet. However, in line with global trends, large private corporations increasingly own a ‘bouquet’ of media in South Africa, which has the potential to impinge on the quality of journalism. The public broadcaster, the South African Broadcasting Corporation (SABC), offers six television channels, four of which are free-to-air, as well as 19 national and regional radio stations. There are 15 private radio stations and approximately 80 community radio stations, as well as three privately-owned television broadcasters. Five newspaper groups control 16 daily newspapers and 11 weeklies.15

By far the two biggest crises facing South Africa are the legacy of underdevelopment associated with poverty (the legacy of a racist past), and the dramatic increase in HIV/Aids. It is estimated that between 11% and 22%16 of the population is infected and South Africa is second only to Botswana in terms of the size of the pandemic. Although significant strides have been made in terms of service delivery to the poor, including housing, access to clean running water, sanitation, education and social welfare grants for the poor,17 South Africa remains a highly polarised country. There is an increasingly multiracial class, comprising one-third of the population, which owns almost all the property and is socio-economically dominant, while the ‘other two-thirds’ is drawn from a class that often lives a hand-to-mouth existence despite being a clear majority of the electorate.

Despite the government’s many efforts to promote development, South Africa represents a microcosm of globalisation’s dilemmas. Those to the left of the government’s largely centre-right economic policy argue that more could have been done to alleviate this situation if the government chose to implement the Reconstruction Development Plan (RDP), the state interventionist policy which the ANC presented to the electorate in 1994. Those in support of the government’s economic policy, including the official opposition and much of the business community, argue that the government’s economic policy has been a necessary approach to ensure market stability given the necessity of creating a stable investment environment.


South Africa 12

Corruption profile

Causes and consequences Apartheid and colonial rule

The situation prior to democratic rule (pre-1994) ”South Africa (in 1987) is one the few countries in which there is no control whatsoever over foreign capital…any foreigner can, with no restrictions, either bring money into South Africa—whether it is hot or not, does not matter—bring it in, or take it out. There is no restriction whatsoever on the flow of capital…18

General Tienie Groenewald, former Head of South African Military Intelligence, during an off-the-record briefing to a right wing United States (US) Republican

think-tank in 1987.

”When statesmen were allowed to practice deception with impunity, national integrity was corrupted. Innumerable lives were thrown away by waging unwarranted wars on false premises. The State itself became corrupt.”19

ANC National Executive Committee

Is South Africa a fundamentally more corrupt society today than it was 10 years ago, prior to the advent of democratic rule? This question is regularly asked in the debate about the nature and extent of corruption in South Africa. It is often informed by those wishing to prove that a majority government has been unable to stem the tide of corruption, not recognising that, idiomatically, one cannot compare apples with rotten apples. It also points towards the inability to see the linear nature of South African history, as the country emerged not out of a revolution but rather out of a negotiated process of change. This process has not provided a clean break with past practices and institutions, as described by Frene Ginwala, the former Speaker of Parliament (1994–2004):

“In South Africa we inherited an intrinsically corrupt system of governance….To survive, it created a legal framework that was based on and facilitated corruption. It has taken years in Parliament to repeal old laws and introduce even the basic legal framework that would enable us to deal with corrupt bureaucrats, politicians and police. The private sector also operated in a closed society and profited by it. There were partnerships with international criminals, and the corruption that was built into the system is very difficult to overcome”.20

White supremacy in South Africa has always been premised on notions of greed and corruption. Ideology has often been misused as a pretext for what constitutes corrupt behaviour. The first attempt by Europeans to ‘settle’ at the Cape was a decision of the Dutch East India Company—a forerunner of the modern day multinational corporation—which required a replenishment station that would aide its business forays to the East and to Indonesia in particular. The success of the station at the Cape of Good Hope required the subjugation of local inhabitants—to the benefit of the company’s Dutch headquarters. The subsequent British colonial administrations were no less subtle when wars were raged and people subjugated (both black and white) in order to acquire access to the country’s wealth of minerals and land. The Boer-controlled states, such as the Transvaal Republic (which was eventually defeated by the British in 1902), were also not free from corruption. Historical texts indicate that, “One of President (Paul) Kruger’s three sons was his private secretary. A son-in-law of his, C.F. Eloff, was a businessman who was granted several (government) concessions, namely business monopolies of one kind or another.”21 Writing


South Africa 13

in 1899, Hillegas notes that “Eloff was several times a millionaire”.22 At the time reference was also made to a secret ‘third Volksraad’ (a second Volksraad, or Assembly, existed to represent ‘foreign’ whites), which was an undercover group of businessmen who secretly controlled the economy and of which the aforementioned Eloff was said to be a ‘member’.23

Following the bloody South African War (1900-1902), the ‘Union of South Africa’ s – under British imperial rule- cemented the white dominated political system for the next fifty years. The two former British colonies and the Boer ‘free’ states constituted the provinces and territory of this new state. A white parliament was elected with an upper house (senate) that included representatives of the majority black, coloured and Indian South Africans. The nascent white state, with the approval of its imperial overlords, systemically used power to corrupt. The 1912 Land Act placed 80% of the countries land in the hands of 20% of the population. This served two purposes – ensuring white domination of the agricultural sector and ensuring that black South Africans were forced to move to the cities where labour was in short supply in the countries mines. This situation suited the emerging mining companies –including the forerunners of the latter day de Beers and Anglo American. These crony capitalists were the beneficiaries of political patronage resulting from the convergence of interests between the business and political elite in the country.24

Aside from the oppressive and racist nature of the apartheid state (and the preceding colonial administrations), it could be argued that the premise on which it was built was corrupt not only in its constituent parts (where there was open abuse of resources), but was also an example of state technocrats meticulously designing a framework within which power and money were used almost exclusively to the benefit of a small (racial) minority.

The National Party (NP) deviated from the system of British Colonial rule in that it wished to swell the ranks of those who benefited from the oligarchy to include working-class white Afrikaans-speakers. However, it had no intention of extending it beyond this group. In doing so it would call into question the reason for its own existence (arguably also the reason for the demise of the (N)NP in the post-apartheid context).

What differentiates the apartheid state from latter-day states that are typified by a politics of patronage (such as Zimbabwe in recent years) is its efficiency in ensuring that those who benefited from the system were not only the top leadership and their families. Hundreds of thousands of individuals would be afforded access to state grants, free education and job reservation at the expense of the majority, ensuring that the patrimonial network was comparatively massive. It was a system, however, that relied on a number of key tenets for its survival:

� blind acceptance of party authority from beneficiaries of the system;

� successful repression of those who questioned its legitimacy (both within and outside of the network); and

� an acceptance that apartheid’s beneficiaries were not allowed to become ‘too greedy’—the creation of an elite within the group could eventually result in the alienation of working-class supporters.

The failure of all three aspects would be the ultimate undoing of the apartheid state and its race-based politics of patronage.

Indeed, as freedom of political association, movement and the press were increasingly curtailed by state machinery, so, too, were other checks and balances hemmed in. One example is that “…the Auditor-General’s reports stopped routinely detailing malfeasances after 1967”.25 A key tenet of the oppressive apartheid state was secrecy. This manifested itself in the creation of secret organisations, such as the Broederbond (Brotherhood), a group of white male Afrikaner Nationalists that numbered 12,000 by the late 1970’s (all loyal members of the NP), who were the invisible hand directing NP policy and who held enormous influence over government policy and its implementation. In such an environment, custom-made to invite the abuse of power and state resources, the idea of transparent, accountable government is a non-starter. Established in 1918 and operating through front organisations such as the Federation for Afrikaans Culture (FAK), the Broederbond, which sought to ensure domination of South Africa by white Afrikaans-


South Africa 14

speaking members of the NP, could count among its membership (which was secret at the time, and controlled through a cell-like structure), every NP President from D F Malan to F W de Klerk, as well as three State Presidents.26 In addition, most Cabinet members, military leaders, heads of Afrikaans-speaking universities (including rectors and professors) and the SABC were broeders (‘brothers’). Leaders of Afrikaans clergy, teachers and established farmers also featured prominently among its membership. In their book, The Super-Afrikaners, Ivor Wilkins and Hans Strydom exposed for the first time this sinister organisation that had become the preserve of the wealthy and powerful among the white Afrikaans elite. In 1968 the first Chairman of the Broederbond, H J Klopper, proclaimed at the organisation’s 50th anniversary, “Do you realise what a powerful force is gathered here tonight between four walls? Show me a greater power on the continent of Africa! Show me a greater power anywhere, even in your so-called civilised country!”27 Of course this ‘power’ also meant that broeders were often made aware of forthcoming large government procurements, of where universities and harbours were to be built (an advantage for property speculators) and efforts were made to stack the public service with broeders who shared similar values of racist nationalism.

Hyslop28 argues that as the establishment began to lose its discipline over its followers in the late 1970s, a scramble for personal enrichment emerged at the highest levels. He suggests that “…as the economy stagnated the country seems to have shifted dramatically from a low corruption-high growth to a high corruption-low growth scenario”.29 Consider some of the well-publicised examples:

� The late 1970s saw the Info Scandal (also known as ‘Muldergate’), involving well-placed members of the NP political elite who creamed off cash intended for the creation of the government-fronted Citizen newspaper, and which ultimately led to the fall of President B J Vorster.

� As the state entrenched a culture of secrecy during the 1980s, almost R4 billion (approximately the same US$ value at the time) was spent annually by the Department of Defence through its ‘secret fund’.30 Some of the details of how these funds were squandered by state operatives living the high-life emerged in the Truth and Reconciliation Commission proceedings in the late 1990s. One such example is the involvement of officials in the Department of Defence in mandrax and ivory smuggling from Angola.

� Money was pumped into various front organisations for the state both in South Africa and abroad. Some of these organisations were designed solely with propaganda in mind. This, however, extended to the creation and extensive funding of sinister organisations in the 1980s that were designed to carry out assassinations and gather intelligence for an increasingly paranoid state.31

� The NP government spent billions of rands to build up a strategic fuel reserve intended to act as a buffer against a dwindling supply of oil as a result of international sanctions. Opposition political parties within the white system of governance argued that this was used to enrich officials.32

� Another fertile ground for corruption was the ‘homeland’ system of government into which billions of rands were pumped to create a picture of a divided but ethnically harmonious country. By way of example a “…government commission reckoned that several hundred millions of rands (channelled to the Department of Development Aid, which provided financing to the homelands) had been lost to fraud and nepotism in the 1980s through awards of contracts to spouses, payments to firms for fictitious projects and so forth.”33

� The manner in which business, particularly the largest corporations, benefited from apartheid meant that although they may have occasionally voiced objection, business was, by and large, an accomplice to a corrupt system of governance. Moreover, the international sanctions campaign meant that the South African private sector, almost exclusively in the hands of a white elite, became reliant on both state protection and a level of secrecy. Front companies were often created to ensure that goods could be exported without revealing their South African source.


South Africa 15

� As the imperial presidency of PW Botha was in decline, a series of scandals were revealed in 1989 spreading light on a, “...R650 million foreign exchange fraud and various other multimillion Rand scams. These implicated Cabinet ministers...MP’s, several government departments and multiple rungs of the state bureaucracy.”34

Dealing with the past – what now?35

The South African ‘miracle’ - when one demystifies the images of overnight transformation to a rainbow nation – is the story of compromise over conflict. Already well before the final negotiations were concluded two competing claims were being made for what would be done to deal with the ‘past’ in what would hopefully be a peaceful ‘future’. The NP favoured the option of blanket amnesty for all apartheid era crimes while the liberation movements – understandably – wanted individuals to account for their role in perpetuating what the United Nations has classified a crime against humanity. In July 1995 the Promotion of National Unity and Reconciliation Act was passed. By 1995 the Truth and Reconciliation Commission was established – under the leadership of Nobel Peace Prize recipient Archbishop Desmond Tutu. The TRC was to be established to promote national unity and reconciliation through the achievement of four objectives over the 18-month period of its existence:36

� The discovery of the causes, nature and scope of ‘gross violations’ of human rights between 1960 and 1994;

� The extension of amnesty to those who fully disclosed their involvement in politically motivated violations of human rights;

� The identification and location of victims of violations and the design of reparations for them; and

� The compilation of a report, which should contain recommendations for measures to prevent any future violations of human rights.

The TRC affected its mandate through the following three committees:37

� The Human Rights Violations (HRV) Committee � Reparation and Rehabilitation (R&R) Committee � Amnesty Committee (AC) Corruption was never the focus of the TRC but rather the thousands of applications for amnesty that were submitted and the public hearings focussed on gross violations of human rights. The loss of life inflicted as a result of apartheid – across the political divide was the focus of what had become a cathartic national process (although with strong religious overtones). To understand the backdrop against which apartheid era crimes took place the TRC also included a number of special hearings focussing on the media, business, prisons, the faith community, legal system and the health sector. Although some of the hearings only touched the surface of the way in which various professions – including the South African and foreign businesses propped up the apartheid regime – it started to shed some light on the sectoral responsibility for apartheid.

Some of the critics of the Truth & Reconciliation argue that it did not go far enough in holding senior members of the former government, security establishment (and business community) to account. It was of course meant to display restorative justice and not the Nuremburg type trials that had taken place in Germany after the defeat of the Nazi regime. In sacrificing the ‘lower’ and ‘middle managers’ of apartheid (the policemen, soldiers and others who were rightly implicated) – the top end of the apartheid elite were left to while away their days in holiday homes along the countries coastline (such as PW Botha who retreated to his villa in the aptly named resort town of ‘Wilderness’). Many of these individuals, including leaders in business have never accounted for all their crimes nor did they apply for amnesty for offences they might have committed – refusing in some instances even to co-operate with the TRC. This should however not detract from the fact that the commission did help thousands of victims of political violence find some answers to what had happened to love ones. It undoubtedly also contributed to national reconciliation in South Africa, as no one could any longer claim ‘not to know’ what had happened under apartheid. Reconciliation being a process, this is not yet complete – but the TRC was an important milestone.

However where does this leave the question of how to deal with corruption under apartheid ten years into the democratic project? As discussed above indications do exist as to the possible extent of corruption under apartheid. Tracking monies lost to political corruption during apartheid has not been a priority of the new democratic state. Apart from a Commission of enquiry headed up Zola Skweyiya (now Minister of Social Development) into corruption in the so-called ‘homeland’ of Bophutatswana – there has been no large scale enquiry into assets plundered under


South Africa 16

apartheid. One of contributing factors (other than that many of the cases are a decade or two old) is that this may well have been influenced by the elite political consensus concluded during the transition. Some individuals who may have been fingered in such investigations could include (former) senior members of the military, security establishment, senior bureaucrats and the ‘captains of industry’ – their support was key to ensuring that there was no attempt to destabilise the democratic regime during its first year in office.

However, as detailed elsewhere in this study, with the establishment of the Asset Forfeiture Unit such capacity has now been created to allow for the seizure of the proceeds of organised crime (including corruption).

What may now be worthy of consideration is the following:

� A country, with a sound adherence to the rule of law and a democracy that is starting to ‘settle’ may in fact be ready to revisit some of these crimes.

� The rationale for this should not be a ‘witch-hunt’ but would rather reflect both the maturity of the democratic order and the necessity of the state to ensure that where the countries wealth has been plundered this is to be returned.

� An initial step may be for a specialised agency such as the NPA or SIU to undertake an initial scoping exercise of what crimes could potentially be prosecuted. It should be noted from the outset that in some instances prescription may have set in, and it may be difficult to build a case as witnesses are difficult to find and records may have been destroyed.

� Such a report would both spell out the linear nature of corruption in SA – and dispel the myth that it is only a problem of the post-democratic order. These are important lessons if the country is to learn from the past in tackling grand corruption in the public and private sector.

� Parliament should assist in setting the parameters of such an investigation to defuse political tensions that are likely to ensue of claims that a ‘hidden agenda’ is at play. The state should approach civil society, the faith based community and business when considering to investigate such matters – to ensure that the reasons for such investigations are clearly communicated.

� Such an exercise should cover both crimes of corruption in the public and private sector. � Should the state proceed with investigations it should do so on the basis that investigations

into more recent crimes of corruption (that which has taken place since 1994) should in no way be prejudiced. There is a necessity to look forward while looking backward. Corruption remains a massive problem and requires constant attention.

� An emphasis should be placed on trying tracing and tracking assets where possible – and returning these to state coffers.

� Should any assets be tracked and traced they could be designated to both off-set the costs of such an investigation – and if possible they could be allocated to the TRC reparations fund or used to promote broad based black economic empowerment (not the variant that is perceived to favour well connected members of the business and political elite.)

The situation from 1994–2004

National administration: An overview of causes and consequence The transition from apartheid to democratic rule did not occur as from night to day. Both the state administration and private sector carried a baggage of practices that were contrary to the principle of transparent accountable governance. Similarly, senior public sector managers, uncompromised by an allegiance to the past regime, were now required to manage an expansive state bureaucracy although they had little working experience within the state machinery. Matched by the parallel transformation of many functions of governance this created a climate in which opportunistic corruption could take place.

Lodge38 argues that South Africa has a relatively well-paid upper management structure in the public service. Indeed, given the size of the private sector, government has the ability to tax and remunerate public officials. Salaries are, however, relatively low in key professions such as the police service and nursing, and prosecutors and magistrates had to threaten strike action in the late 1990s to ensure a wage increase. There are few examples, other than those involving bureaucratic blunders, of officials not being paid and in this sense public officials are more assured of a steady income flow than their


South Africa 17

counterparts in certain countries elsewhere on the continent, where corruption has become a survival tax. One of the problems that no doubt drive many officials to live beyond their means is the massive wealth gap that exists in South Africa. The allure of consumer wealth, driven by massive spending on marketing campaigns, is within reach, yet incredibly far for the vast majority of the population. On the opposite end of the spectrum, the South African elite are aware of the tenuous nature of their wealth—it could be argued that this, too, fuels the ‘greed’ factor given the virtual abyss between the very wealthy and the very poor.

The South African media is a valuable mirror of corruption in South Africa and is filled with various examples of corrupt practice on a daily basis. Of particular interest are some of the recurring problems that emerge in the awarding of tenders in public procurement deals (of which the arms deal has become the most prominent—see the box below). Increased state spending on public works and low-cost housing, and a necessarily preferential procurement policy (affirmative action in awarding certain public procurement tenders) are all areas that can be manipulated by corrupt individuals.

The South African arms deal

The most prominent example of public procurement that has generated numerous allegations of corruption, but few convictions to date, is the US$5 billion Strategic Defence Procurement Package (known as the ‘arms deal’), which was finalised in 1999/2000. This is, by far, the South African state’s largest single public procurement package since the advent of democracy and, given the nature of the global arms industry, it took place in already-muddied waters.

The allegations of corruption in the arms deal have been the biggest test of the effective functioning of the various pillars of the NIS (which will be discussed elsewhere in this report). This has been described by organisations such as Idasa as a “litmus test for democracy”.39 The furore surrounding the deal has demonstrated that there have been both successes—particularly the public scrutiny of the deal given the secretive nature of the arms trade and the propensity of arms traders to corrupt—and failures.

The failures are numerous and include the apparent bypassing of the Parliamentary Standing Committee on Public Accounts (Scopa) by the AGSA when submitting the results of his investigation to the Executive. The deal was the subject of an investigation by the National Director of Public Prosecutions, the AGSA and the Public Protector40 (the Joint Investigations Team—JIT), who found evidence of corruption, but not enough to prove that it had materially influenced the arms deal. The JIT was appointed by parliament but was, however, hampered from the outset as it lacked a clear mandate from parliament for the responsibility of each agency/institution in investigating the deal and preparing the final JIT report. The report was interpreted differently by politicians across the spectrum. Although some members of the ruling party believe that the report exonerates the arms deal of any corruption, it also fails to give it a clean bill of health. The report did not implicate any members of Cabinet but did indicate some of the major shortcomings in the government’s tender process. The investigation of the deal by the NPA no doubt also raised numerous matters that upon further investigation may have assisted in providing sufficient grounds to charge individuals such as Shabir Shaik with corruption (see below). Allegations that members of the Executive were attempting to pack Scopa with ‘loyal’ MPs created a fault line within Scopa, which included the resignation of the chairperson and leading members of the ANC caucus who were critical of alleged corruption in the deal. This, and the sense that Scopa was prevented from exercising its oversight role, had major repercussions for ensuring the credibility of the investigation.

The case continues to unravel in the public domain as Deputy President Jacob Zuma’s financial advisor (and an arms dealer in his own right), Shabir Shaik, has now been charged with corruption relating to the arms deal. The trial which was still playing itself out in the Durban High Court has proved particularly embarrasing for the deputy President. He is implicated in this and is alleged to have requested a bribe of R500,000 from French arms multinational corporation, Thales. Although the (now former) National Director of Public Prosecutions (NDPP), Bulelani Ngcuka, controversially claimed that he had prima facie evidence of corruption against the Deputy President in August 2003. Neither he nor his successor Vusi Pikoli has yet charged him with an offence. Should Shaik be found guilty in court, charges implicating the Deputy President are likely to follow.

Ngcuka’s combative stance has won him many enemies. Senior ANC politician and former Minister of Transport, Mac Maharaj, who was also being investigated by the Directorate of


South Africa 18

Special Investigations, as well Mo Shaik (brother of Shabir), alleged in September 2003 that Ngcuka had abused his office and been a spy for the apartheid regime. The spy allegations were the subject of an official commission of enquiry led by a retired Judge, Joos Hefer. It concluded in December 2003 that Ngcuka, who was imprisoned by the NP government for his involvement in the liberation movement and the ANC, was, in fact, not a spy. If intended to discredit Ngcuka this red herring failed miserably.

The allegations of abuse of office—linked, among other things, to an off-the-record briefing Ngcuka had given to a group of selected black editors regarding his investigation of Shaik, Maharaj and Zuma—resurfaced in the first half of 2004. Deputy President Jacob Zuma lodged a formal complaint with the Public Protector, Lawrence Mushwana, in October 2003, requesting that he investigate Ngcuka for abuse of office and the NPA for abusing its powers. The Public Protector presented a copy of his report to parliament at the end of May 2004, which, although stopping short of accusing Ngcuka of abuse of office, did recommend that Parliament establish a special committee to review the powers of the National Director, among others. Ngcuka and former Minister of Justice, Penuell Maduna, responded by giving the Public Protector a tongue lashing, accusing him of being “spineless”. This situation no doubt created tension within the ANC and Ngcuka subsequently apologised to the South African people for his remarks but, notably, not to the Public Protector. Ngcuka announced his resignation as NDPP in July 2004, maintaining, however, that he was not “pushed” and nor had he “jumped”, but rather that it “was the right time to go”.41 This may well be the case, nevertheless the investigation, a strategy to publicly discredit Ngcuka as well as the possibility that Ngcuka—an energetic NDPP, whose wife is the Minister of Minerals and Energy Affairs—may have future political ambitions, may have all motivated him to call it a day. Ngcuka, who has a competent staff and leadership within the NPA, maintains that this move will not affect prosecutions, which are going ahead as planned. President Mbeki opted to appoint Silas Ramaite as the head of the NPA on an interim basis, from 1 September 2004. Ramaite, former head of auxiliary services within the NPA, was apparently involved in all major deliberations around matters concerning the arms deal and so represents continuity at this crucial juncture as the Shaik trial commences. On 01 February 2005 Mbeki announced that Vusi Pikol, former Director-Justice in the Department of Justice would head up the NPA in a permanent capacity. Pikoli has earned kudos as a competent manager and has a sound understanding of how the NPA functions given the link between the Department of Justice and the NPA.

These details are the visibly measurable cost of alleged corruption in the arms deal. The relationship between key oversight institutions have been soured and parliament’s ability to conduct effective oversight was challenged. All this has happened in the context of a young democracy in which many institutions are still finding their feet. Apart from the resources wasted in the purchase of some of the weapons systems, should corruption be proven, the real cost will be the ‘body blows’ dealt to a nascent democratic order. The arms deal is unique in this regard.

The arms case has also, importantly, highlighted the possible involvement of multinational companies in corruption. These include Thales (the French arms dealer) and British Aerospace Systems (BAE). The former is alleged to have offered, or agreed to a request for, a bribe by Deputy President Zuma. The latter, BAE Systems , against which no proof of corruption has been found, paid sums of money to the ANC Veterans Fund and other organisations. Of more concern, however, is the ‘agency fee’ paid to a small South African company that operated as BAE System’s local agent. According to a question answered in the British Parliament, around £100 million was paid to the (relatively) unknown Osprey Investments for this purpose. Accusations are also levelled against EADS, another European arms dealer, of having provided ‘incentives,’ such as the famous discounts on luxury vehicles offered to the then-ANC Chief whip, Tony Yengeni, and 30 other high-ranking officials linked to the procurement contact (including the head of the Defence Force, General Siphiwe Nyanda). None of the individuals representing foreign corporate interests have been tried under the Organisation for Economic Cooperation and Development (OECD) Convention Against Bribery of Foreign Public Officials in International Business Transactions (1999). Although the German and French prosecuting authorities have been investigating EADS and Thales, respectively, they have as yet not made an arrest. It is unclear what support, if any, they have received from the South African Prosecuting Authority, although it is alleged that the South Africans have been less than forthcoming in assisting with some of these investigations.

The South African media continues to investigate high-profile allegations of corruption (despite a limited capacity), and report on official investigations and prosecutions. Selected


South Africa 19

cases present an indication of both the extent of the problem and the nature of corruption within the national administration.

� According to a PSC report on breaches of the Public Finance Management Act tabled in parliament, some 434 government officials were charged with financial misconduct, involving a loss to the state of at least R4m in the year to end-March 2002. However, since only 19% of the departments provided details of financial loss suffered as a result of misconduct, the actual losses to the state may have been higher. Of the 434 officials charged, criminal proceedings were instituted in 91 cases and five officials were found not guilty, while in 209 cases, officials were dismissed. Of the officials charged, 342 were junior officials, 30 were middle-management employees and five were senior managers. More than half of the reported cases related to claims, embezzlement, misappropriation of funds and false statements, and only R177,834 of the R4.2m misappropriated was recovered. Government departments suffered differently, with the defence department reporting the most cases of financial misconduct (67), followed by the labour department (65) and the home affairs department (39).42

� Although good progress has been made by the state in meeting the need for service delivery, it is particularly vulnerable to corruption as a large amount of resources are allocated to sectors that have been historically underfunded. The majority of spending in health, welfare and education is undertaken at a provincial level where sufficient oversight of spending is all too often lacking. The Minister of Social Welfare, Zola Skweyiya, revealed in early 2004 that social grant scams are costing the state R2 billion a year and as much as R10 billion may have been lost to corrupt practices in the first 10 years of democratic rule.43 Initiatives to tackle this problem have resulted in a reform of the pensions/grant system and high-profile arrests, including that of Dr Leod Zondo, medical superintendent of Empilisweni and Umlamli Hospitals in Sterkspruit, who is alleged to have made up to R23,000 a day signing bogus disability grant forms for healthy people, allowing them to claim R740 a month from the state.

� The drive to ensure that workers are afforded opportunities to improve their skills resulted in the creation of tax-funded Sector Education and Training Authorities (Setas), established on agreement between the trade unions, government and employers. Government is tasked with managing the Setas. Many have a backlog in rolling out a large reserve of funding (R2.8 billion is currently unspent). The access to large capital resources, with the additional pressure to spend and the fact that they do little actual training but rather outsource this to training providers, has resulted in the Setas being victims of corruption and fraud totalling nearly R1 billion.44

� The Executive is relatively free of allegations of corruption, with the arms deal as a notable exception. One case that received media attention in 2003 was a report in the Mail & Guardian that a lucrative Nigerian oil contract in 1999 that was intended for South Africa‚ and secured with the aid of President Thabo Mbeki, was diverted to an offshore company with no benefit to the South African state or public.45 Instead, the company’s local incarnation features figures linked to ANC interests. Almost four years later, the contract is still running and the South African government has not acted to end what appears to be a fraud on the South African and Nigerian public. Mbeki and other government officials lobbied the Nigerian government for the award of the Nigerian contract‚ for oil sales which duly went to an entity called the South African Oil Company (SAOC). The contract was portrayed as a government-to-government deal with the South African state as the beneficiary. The South African Oil Company is an offshore entity registered in the Cayman Islands, which, by its own account, never transferred a cent (from benefits estimated at up to R30 million a year) to the South African state or public.

� Sharp questions over conflicts of interest have emerged about the controversial private company, (SAOC). The man behind it, Nigerian-American


South Africa 20

Kase Lawal, also planned to set up an oil refinery in East London in the Eastern Cape Province with the assistance of senior South African politicians, whose relations stood to benefit from the project. According to the Mail & Guardian, prospective beneficiaries of the deal include the Minister of Provincial and Local Government, Sydney Mufamadi, whose wife was a director and 5% shareholder in SAOC; the then-Premier of the Eastern Cape, Makhenkesi Stofile, who had a number of business relations linked to SAOC; his brother-in-law, Hintsa Siwisa, who was chairperson of the local SAOC and held an 11% stake in the company; his wife, Nambita, who heads the Eastern Cape Anti-Poverty Foundation holds a 2% stake in SAOC; and Stofile’s sister-in-law, Nosipho Damasane, a 3% shareholder in the company.46

� The Road Accident Fund (RAF) (a statutory fund established to assist victims, and in particular third parties, who have been involved in a vehicle-related accident as passengers or pedestrians), has been the focus of numerous investigations over the past few years, with fears, on one occasion, that the Fund was technically bankrupt, largely due to fraud. This left genuine claimants turning to the country’s health and social services, further draining public funds. The RAF is estimated to lose R1 billion a year to fraud resulting from false claims.47 The former Chief Executive Officer (CEO) of the organisation, Humprey Kgomongwe, is also under investigation for corruption. The RAF has now asked the Auditor-General to conduct a “an exhaustive forensic audit into the fund to obtain a clear indication of the scale of the problem.”48 The figure of R1 billion is double that estimated by an earlier report from the Auditor-General’s office. Presently 2,000 false claims are being investigated by the SAPS.

Provincial administration: An overview of causes and consequence The South African Constitution (1996) makes specific provision for nine provinces, with governments and elected parliaments to fulfil certain designated functions including responsibility for over 60% of state spending.

The creation of nine provinces necessitated redrawing the map of South Africa, as the four formally ‘white’ provincial administrations were now integrated with an array of ‘black’ homeland administrations that served as puppet states to the white apartheid state. Administrative functions that were duplicated now had to be amalgamated, with the inevitable result being mistrust among officials. Corruption was also often tolerated within the ‘homeland’ authorities, as the central administration in Pretoria required their political support in order to project a positive image of South Africa’s undemocratic race politics.

With the integration of these various administrations a certain ‘hangover’ is to be expected and, as Lodge argues:

“…a large part of the corruption reports that have appeared in newspapers since 1994 are reflections of behavioural patterns inherited from old regimes. Pension fraud is a case in point. One of the most expensive forms of wastage was concentrated in the pension bureaucracies that administered grants to black people. Between 1994 and 1998, up to R5 billion was paid out to ‘ghosts’ and double claimants...The Eastern Cape was especially bad in this respect, but the problem affected even the better-run provinces, including Gauteng and the Western Cape”.49

The Eastern Cape Province has, however, come to present a specific example of how unchecked corruption can reach systemic levels in provincial government. Work by the non-governmental organisation (NGO), Public Service Accountability Monitor (PSAM), highlighted the way in which the executive arm of government was either involved in corruption or turned a blind eye to the problem. This eventually led to direct intervention by the central government. In December 2002 an Interim Management Team was deployed to address the structural problems in the provincial government and, specifically, to check corruption. This required the establishment of a Joint Anti-Corruption Task Team (JACTT), consisting of members of anti-corruption agencies (including the NPA and PSC), as well as a private sector auditing company. According to the Minister for Public Service and Administration, Geraldine Fraser-Moleketi, more than 1,200 cases involving corruption


South Africa 21

and other offences that were managed by the interim team in the Eastern Cape were completed by February 2004.

“Audits related to items such as procurement, hospital stock and petrol card abuse have been completed, and a number of cases are being prepared against employees. According to Fraser-Moleketi, 42 percent of those found guilty had been dismissed and two heads of departments are being disciplined for transgressions of the Public Finance Management Act. Fraser-Moleketi stated that new procurement regulations and frameworks had been put in place along with financial management support, supply chain management support and human resources support for two years in order to “set in place sustainable capacity”.50

The Eastern Cape is an alarming reminder that, regardless of existing laws and policies, a country such as South Africa needs to tackle ‘graft’: if unchecked by official sanction, the consequences can be disastrous. The Eastern Cape inherited three separate government structures, the Ciskei Homeland Administration, the Transkei Homeland Administration and the Cape Provincial Administration. Levels of patronage, secrecy, non-accountability and entitlement marked all three, similar to the scenario in other provinces that were integrated after 1994.51 This may, in part, explain the legacy of institutional culture, but also points to why remedy is all the more important. In a PSAM survey of public officials’ perceptions and experiences of corruption in the Eastern Cape,52 the following data perhaps best explains the need for a bold initiative to promote public service ethics through integrity training:

� 48% of officials believed that it was wrong but understandable to receive gifts in return for something that is part of their job;

� 14% reported seeing someone trying to bribe a colleague and 12 % reported seeing that colleague accept the bribe;

� 27% reported witnessing political patronage (awarding jobs or contracts to political allies);

� 33% felt they witnessed nepotism (awarding jobs or contracts to relatives);

� more disturbingly, 29 % said they had witnessed the theft of public resources;

� 23% said that ‘all’ or ‘most’ of their fellow government officials in the province were involved in corruption; and

� 41% expressed the fear that syndicates would intimidate them if they reported corruption.

The results of poor public sector ethics are not only measured in arrests for transgressions, such as the previously mention JACTT initiative. According to analysis by PSAM, a total of R110 billion ‘went missing’ over a period of six years in the Eastern Cape and only 12% of the Eastern Cape's provincial budget has thus been adequately accounted for between 1997 and 2003.53 In addition, R10bn in public money remains unaccounted for in the Eastern Cape in the 2002/2003 fiscal year. These are largely ‘audit disclaimers,’ which are issued by the AGSA in situations where so many transactions are not included in the financial statements and so little supporting documentation can be produced to justify expenditure that no audit can be conducted. Although there is no proof of corruption it does point towards a lack of sound financial management in the province. There are signs of improvement, however, as 41% of the budget was unaccounted for in 2002/2003 in comparison with 96% in the 2000/2001 fiscal year.

One of the factors that may have lead to the high profile that the Eastern Cape has been plagued with regarding corruption is the frequency and form of corrupt behaviour. It has been argued that, in contrast, the corruption in wealthier provinces such as Gauteng and the Western Cape may be more ‘sophisticated’ and could, in fact, involve larger sums of money. The Eastern Cape is by far not the only province plagued by corruption, as other recent high-profile examples attest:

� The Gauteng government lost R400 million—enough to build 22 000 low-cost houses—to an unscrupulous housing developer who manipulated the subsidy system. Private forensic detectives showed that the developer, a former


South Africa 22

university law professor, won tenders to build houses in 17 townships and was allegedly overpaid. In some cases, the developer allegedly claimed subsidies from the government on behalf of fictitious beneficiaries.54

� Former MEC for Finance in Gauteng, Jabu Moloketi, (now Deputy Minister of Finance and husband of the Minister of Public Service and Administration, Geraldine Fraser-Moloketi) stands accused in a report from the Auditor-General of having awarded the sole rights to provide information technology for the Gauteng Shared Services Centre (GSSC) to public servant Michael Roussos, who also draws a salary of over R800,000 per annum—as head of the GSSC55. Deputy Minister Moloketi, who denied any wrongdoing, was cleared following an investigation by Gobodo Forensic Auditors and the Resolve Group. The February 2005 report does however describe the agreement between Roussos and the Gauteng government as “neither appropriate nor acceptable”. 56 Roussos is now the subject of a police investigation – and this matter is likely to be the cause of further embarrasment to Deputy Minister Jabu Moloketi.

� In the Northern Cape the former MEC for Transport, John Block, resigned in December 2003 following the exposure by the Sunday Times of his use of public funds to treat himself and his wife to a five-star visit to the Cape Town North Sea Jazz Festival. Following a report by the Auditor-General, he now stands accused of awarding dodgy tenders worth more than R20 million to Sedipeng Construction, a company owned by Charles Modise—the Johannesburg businessman who introduced Block to his present wife. The AGSA’s report, which has now been passed to the Northern Cape government for it to consider initiating a criminal probe, exposed violations of tender procedures as well as several payments by Block and his former department to Sedipeng Construction.57 The report, whic was released in late November 2004, does not implicate Block. However, Auditor-General Shaukit Fakie has warned that this has not cleared Block of any wrong-doing as he was not asked to investigate Block but only companies involved in the procurement contracts.58

� In Mpumalanga Province, Rienna Charles, a Deputy Director-General, has surrendered to the Scorpions on numerous charges of fraud and criminal mismanagement. This was a culmination of a two-year investigation into her alleged subversion of government tender procedures while heading Mpumalanga's Health Department. Her case has been joined to the trial of her brother-in-law, Mpumalanga tycoon Percy Siboza. Charles stands accused of "abusing her authority to enrich Siboza by illegally approving at least two major contracts totalling R3.6 million for electrical generators at government hospitals".59

� The former Premier of the Limpopo Province, once mooted as possible future head of the NPA, has also been implicated in corrupt transactions. According to a Noseweek magazine60 report in 2003, one of South Africa's most established and respected black businessmen has claimed that the then-Premier of Limpopo Province, Nelson Ramathlodi, and one of his MECs each have a secret interest in a company involved in the distribution of monthly pension payments and social grants in the province. As a result, says the businessman, the two senior ANC politicians have, for the past four years, each had a secret, extra monthly income of R119,000 (totalling income of more than R5m) in addition their official salaries. The claims were made to Noseweek by South Africa's cane furniture king, Habakuk Shikoane and were subsequently corroborated by Brian van Rooyen, founder and CEO of the JSE-listed venture capital company, Labat Africa.61 The City Press revealed in January 2005 that Ramathlodi was in fact under investigation by the Scorpions and is in possesion of a letter from the crack anti-corruption agency confirming this.62

Local or municipal government, a critical area of service delivery given its ‘proximity’ to the people, is also bedevilled by corruption, particularly in the general mismanagement of funds and in the awarding of tenders. The national media only report on a small number of these cases as this is largely left to poorly-resourced and -funded local publications. The lack of capacity of the media to investigate allegations of corruption and the reliance on


South Africa 23

law enforcement agencies and community-based organisations to detect and report such instances means that local authorities are particularly vulnerable to abuse of office. Though this is not discussed in detail in this section of the study, it does not diminish the vulnerability of this tier of government.

Measuring the impact Studies of the impact of corruption in South Africa have been undertaken by researchers drawn from the academic community, civil society (such as applied policy research organisations) and the private sector (auditing firms and companies with a focus on commercial research). However, the universal challenge of quantifying the actual impact of corruption on society applies equally to South Africa.

Some of the available tools include (organisations are attributed, not individual authors):

� South Africa: A decade of democracy (Afrobarometer, March 2005)

� National Victims of Crime Survey (ISS, 2004);

� Global Integrity Report (The Center for Public Integrity, 2004);

� Focussed assessment of anti-corruption capacity within the Department of Correctional Services (UNODC/DPSA, 2004);

� Country Corruption Assessment Report (the South African Government/UNODC, 2003) including:

o The Business Survey on Corruption (2002);

o The Public Administration Survey on Corruption (2002);

� The Changing Public Agenda? South Africans' Assessments of the Country's Most Pressing Problems (Idasa/Afrobarometer, 2003);

� Umqol’uphandle—SA Corruption Briefings (ISS, 2003-2005, approximately 22 issues);

� Corruption Perception Index (Transparency International, 2003);

� Bribe Payers’ Index (Transparency International, 2002);

� Global Corruption Barometer (Transparency International, 2003);

� Government Corruption seen from the inside (PSAM, 2002);

� Research report on organisational ethics (KPMG/OPSC/T-SA, 2002);

� Corruption in the media (JP Landman & Associates, 2002);

� A review of South Africa’s national anti-corruption agencies (the PSC, 2001);

� Expert Panel Survey on Corruption (ISS, 2001);

� International Crime Victimisation Survey—Johannesburg (UNICRI, 1992; 1996; 2000);

� Crimes Against the South African Business Sector (Unisa, 1998);

� National Victims of Crime Survey (Statistics SA, 1998).

In general we can differentiate between qualitative tools and quantitative tools (including victims surveys, perception surveys and official statistics). Each has serious methodological shortcomings, but the data available to us does suggest that corruption is a major problem. The data certainly tells us that people in South Africa think corruption is a major problem. The majority of instruments have been applied at national level, with limited work being undertaken in provinces and at a local level. Although this study does present research findings (in both the public and private sector) throughout, some of the instruments have been singled out below as examples:

Perception surveys


South Africa 24

A number of surveys have tried to measure perceptions of corruption in South Africa. One of the key findings is that respondents often have a particular bias depending on political affiliation and race.63 Similar problems no doubt dog instruments such as the Transparency International Corruption Perception Index, a survey of surveys, which draws particularly on the perceptions of an expatriate business community. More often than not, Indian and white South African respondents are noticeably less upbeat than black and coloured respondents. This is despite the fact that the former two racial groups are less likely to be the victims of crime (possibly including corruption). Perception, in this instance, may as much be informed by actual lack of faith in the state’s ability to govern as they are a reflection of the fact (particularly among some white respondents) that their views no longer exclusively govern the state.

A perceptions-based survey worth noting is the Afrobarometer survey. In its most recent study some 2400 South Africans were surveyed between October – November 2004. The study shows a decline in public perceptions of corruption between the late 1990’s and 2004.64 Where over 50% of respondents felt that “all” or “most” government officials were involved in corruption in 1997, this figure has now dropped to just over 20%. In 2000 almost 50% of respondents believed that “all” or “most” MP’s were involved in corruption, this figure has dropped to 24% despite the Travelgate scandal that continues to loom large over parliament.

An earlier Afrobarometer survey,65 looks at the most pressing problems facing South Africans today. Some 2400 South Africans were surveyed between 13 September and 13 October 2002 and asked what the most important problems are that South Africa faces that the government ought to address. Similar surveys were conducted in 1994, 1997 and 1998. The findings suggest that, of 10 major issues, only corruption (along with HIV/Aids and job creation) 10 showed an upward movement, although off a smaller base (it was not even reported as an issue in 1994).

“It was first mentioned in 1995 by 2% and has now climbed to 13%. Whites are more concerned about this issue than others, with 31% mentioning it, compared to 22% of Indians, 11% of coloureds, and just 8% of blacks”.66

This may highlight the effect of increased awareness of corruption predicated by a more open and democratic system, but also, once again, shows the relative difference in reporting in terms of race. Regardless of these factors is the steady growth of the importance of the issue, particularly once it is understood that although corruption is, by far, not the single biggest threat to democracy it is nonetheless a crosscutting issue that can wipe out many democratic gains.

The 2004 Transparency International Global Corruption Barometer67 polled respondents’ views on levels of corruption, and perceptions of the sectors most vulnerable to graft, in 64 countries including South Africa. The survey showed that 23% of South Africans polled expected corruption to increase and a further 14% expected it to increase a little. This contrasted to the 40% who expected corruption todecrease either ‘a little’ or ‘a lot’. A total of 16% of respondents expected current levels of corruption to remain unchanged.

When South Africans were asked to evaluate national institutions as ‘corrupt’ or ‘clean’ – with those institutions perceived to be extremly corrupt scoring 5 and not at all corrupt 1 – political parties and the police faired the worst both scoring 3.8. This was followed by home affairs (3.5) and Parliament and the Judiciary scoring 3.4. Almost all other sectors scored around 3 (including business, SARS, media. medical services, education system, utilities, the military and NGO’s). Religious bodies faired the best with 2.3 points – and the only sector to be below the half way mark between not at all corrupt and extremely corrupt.

Official statistics South Africa, in line with more established democracies, has a relatively low conviction rate per crime reported, despite its relatively high crime rate. Attempts to prosecute corruption were made difficult by the cumbersome Corruption Act (1992) and no data is as yet available to indicate the effectiveness of its successor, the Prevention and Combating of Corrupt Activities Act (Act 12, 2004). As a result, convictions over a five-year period range from 12-17% of prosecutions (see Table 1).


South Africa 25

Table 1 Prosecutions and Convictions under the Corruption Act

Year Prosecutions Convictions Convictions as a % of prosecutions

1996 912 153 17%

1997 924 160 17%

1998 819 121 15%

1999 900 153 17%

2000 1060 128 12%

Source: SAPS Crime Information Management Centre, July 200168

These statistics, other than showing the ineffective nature of the Corruption Act, also only portray part of the actual picture given the secretive nature of corruption. No single instrument exists with which to measure corruption in South Africa and such an instrument may prove difficult to develop. It is also worth mentioning that the SAPS has, for some years, clamped down on public access to official police statistics, often only releasing statistics up to two years after the year in question. The reason given by the SAPS includes the fact that this gives them sufficient time to collate figures and present the public with trends, as opposed to creating ‘panic’. This decision did, however, draw fire from the media and civil society organisations. Numerous attempts were made to contact the SAPS in the course of this research requesting an update on the details given above, but unfortunately these were ”not available”.

Victims surveys The ISS published the results of the second National Victims of Crime Survey in August 2004, detailing the experiences of victims of crime and including a set of questions on corruption. The first national survey was carried out in 1998. The figures are revealing and the discussion below is based on the analysis as presented in an ISS Monograph.69

First indications are that corruption is the crime experienced second (5.6%) most often, after housebreaking (7.5%). Of the realised sample of over 4,800 respondents, drawn from a representative sample in terms of geographic location and race, 78% earn R2,000 or less (after tax) a month. This indicates that where instances of petty corruption occur they are clearly skewed to target the poor. These results also indicate a worrying increase of corruption victimisation from 2% in 1998 to 5.6% five years later (the survey was conducted in the second half of 2003). Beyond reflecting an actual increase in the occurrence of corruption this may also be as a result of raised public awareness of the phenomenon (and the rights of citizens) and improvements in the survey design, which ensured a much broader reach.

In the 2003 survey bribes were most commonly demanded from traffic officials, followed by the police, and then officials dealing with employment opportunities (see Figure 1). This supports the perception that corruption is a major problem both in local government traffic departments and the SAPS, and highlights the discretionary power of some of these officials. For example, the public largely interact with traffic officials on the road where the actions of corrupt officials are difficult to monitor. The frequency of demands for bribes by members of the SAPS is worrying given their role in fighting crime and corruption. These results underscore calls for a designated body or external unit to monitor and investigate corruption within the ranks of the SAPS.70

The high number of requests for bribes in the course of enquiries about employment in the public service reflects the massive levels of unemployment in the country. When demand outstrips supply to such an extent, unscrupulous officials are aware that they can use this situation to their own advantage.


South Africa 26

Corruption was next most common among officials responsible for paying pensions or social welfare grants. These are a major—and often the only—source of income for many impoverished households. The public was next most likely to encounter bribery during applications for driver’s licenses, which, again, involves traffic departments, and by implication local government too. Considering that traffic officials were implicated in the most common type of bribery recorded by the survey—encounters with traffic officials over fines—as well as during the issuing of driver’s licenses, the overall poor performance of local government is a major cause for concern.

Figure 1: Percentage of all those who were asked to pay a bribe in the past year, by department or sector

1

1

2

3

5

5

7

10

12

13

18

19

29

0 5 10 15 20 25 30 35

Customs

Land/housing

Education/schooling

Telephone installation

Court-related service

When visiting prison

Water/electricity

Drivers license

Identity doc/passport

Pension/social welfare

Employment/jobs

Policing

Traffic fine

%

Source: ISS National Victims of Crime Survey, 2003

Those respondents who said an official requested a bribe were also asked whether or not they paid it. The most commonly paid bribe was for traffic fines, with an astounding 100% of respondents indicating that they had indeed paid the bribe (Figure 2).

The results clearly indicate a propensity among those surveyed to regard bribe payment to traffic officials as an innocuous exercise. After traffic fines, other services for which bribes were often paid were utilities (water or electricity) and telephone installation. These could well be illegal connections or illegal reconnections after disconnection, highlighting the discrepancy between the availability of such services and the ability of many people to pay for them. The fact that many who have been disconnected, resort to ‘illegal’ connections to ensure access to basic services underscores the fact that bribery is possibly seen as a means to facilitate access to public utilities. The privatisation of these services is unlikely to lessen this practice, given that a real need exists among poverty stricken households to have sustained basic services (water, electricity, telephony) and not merely a ‘connection’ that users are unable to afford given competing livelihood needs.

It is noteworthy that although policing was the second most likely sphere in which South Africans were asked for a bribe, none of the respondents admitted to paying the bribe. Although this may reflect integrity on the part of the respondents, it is also possible that they were reluctant to admit to bribing a police official for fear of repercussions.


South Africa 27

Figure 2: Percentage of respondents who in the preceding year paid a bribe that they were asked for

16

40

47

49

49

51

52

56

65

72

73

100

0 20 40 60 80 100 120

Identity doc/passport

Medical care

Court-related service

When visiting prison

Employment/jobs

Pension/social welfare

Land/housing

Drivers license

Customs

Telephone installation

Water/electricity

Traffic fine

%


Only two questions were put to respondents regarding private sector corruption. Of those asked whether either they, or a family member, had ever been asked for a bribe in return for speeding up a job application in the private sector, 4.3% of respondents said that they had. Of those asked whether they or a family member had ever been requested for a bribe in return for getting a job in a private company, 5% reported that they had. While these figures seem high, it is important to note that these experiences were not restricted to the past year, as was the case in the questions on public sector corruption discussed above. The results again suggest the high demand for employment in South Africa and the accompanying opportunities this creates for individuals who are willing to partake in corrupt transactions.

All respondents, rather than just those who had experienced corruption, were asked whether they had ever tried to report a corrupt official. Very few (2%) said that they had. When asked who they reported the incident to, the most likely answer was “another official” (42%), presumably from the same department and possibly a superior to the official who asked for the bribe. Almost as many respondents said they reported it to the local police station (40%), while significantly less used a telephone hotline (17%), such as a whistleblower hotline.

The primary reason given by the 98% of those who did not report bribery was that it would not have changed anything (Figure 3). Despite good whistleblower provisions (South Africa is one of only seven countries with legislation protecting whistleblowers) as many as 27% said they are afraid of reprisals. This is a major deterrent to reporting corruption as whistleblowers are essentially victimised twice—first by the act of corruption and then by the potential threat of reprisal in the event of reporting it. A significant proportion of respondents said they did not know who to report the incident to. These figures reflect the relatively low-key approach towards promoting public awareness of the need for individuals to fight corruption and of how to report it.


South Africa 28

Figure 3: Reasons for not reporting requests for bribes to the authorities, all respondents

46

27

21

51

0

5

10

15

20

25

30

35

40

45

50

It would nothave changed

anything

I was afraid ofbeing victimised

I did not knowwho to report it

to

Other Do not know

%


In the short term a sustained awareness campaign by the public service could address the three main reasons for not reporting corruption, namely the view that it would not change anything and the lack of knowledge about where and how to report it, which together represent two thirds of responses. This should be geared towards informing citizens of why they need to counter corruption, thus popularising a whistleblowing culture, as well as ensuring that people know what channels to use to report (i.e. through national hotlines). In the long term, the public needs to believe that their actions will result in speedy investigations and when appropriate, prosecution and conviction. One way of doing this is to inform citizens of convictions achieved as a result of information provided by whistleblowers.

The more complex issue is dealing with the fear of reprisal. This can only be tackled by ensuring that citizens feel adequately protected by the provisions of the Protected Disclosures Act (the ‘whistleblower’ Act) and that the relevant authority assists in ensuring that they remain free of intimidation in the event of disclosure.

Another instructive example of victims’ experience of corruption is included in the 2001 Markinor Omnibus Survey.71 A sample of 2,000 metropolitan and 1,500 rural respondents were surveyed and the results were weighted and projected onto an adult sample of South Africans over the age of 16. Respondents were asked:

Table 2: Markinor Omnibus Survey question

During the past 12 months, has any government or public official asked or otherwise made it clear to you or anyone in your family, that he/she expected money, a present or a favour (i.e. more than the official charge) in order to get the following:

Category Yes No Don’t nnow

Yes (overall positive response) 10.8 % No data No data

For what service?

Job 4.4% 91.6% 4.1%

Pension and other welfare payment 2.3% 93.5% 4.2%

Electricity or water 3.2% 92.5% 4.4%


South Africa 29

Category Yes No Don’t nnow

Housing or land 2.6% 92.2% 5.1%

Medical care 1.0% 93.9% 5.1%

Schooling 1.7% 93.8% 4.5%

ID Document, passport, birth or death certificate, other documents or licences

3.2% 92.2% 4.6%

Source: Markinor Omnibus Survey, 2001

The survey was clearly skewed towards public sector corruption and therefore may not reveal an accurate picture of overall corruption. The overall positive response rate of 10.8% is, however, in line with the International Crime Victim Survey which was carried out under the auspices of the United National Interregional Crime and Justice Research Institute in more than 70 countries worldwide, including South Africa.72 In 2001, 13.3% of respondents indicated that they had experienced corruption, an increase from 7.6% in 1996.

Qualitative instruments To date, the most detailed qualitative study of corruption in South Africa is the South African Government/United Nations Office on Drugs and Crime (regional office for Southern Africa) co-authored Country Corruption Assessment report (2003). The report provides a detailed analysis of anti-corruption capacity in all sectors and, given its overlap in certain aspects, could well be read together with this study. The report also includes a separately-commissioned survey on the effects of corruption in the private sector, which is covered in separate section of this study. The major methodological strength is, however, also the report’s weakness. As a study endorsed by government it ensured the researchers sufficient access to public resources. However, the final publication was also a product published by government, which somewould argue potentially impacts on objectivity. The report does not suggest that there has been an attempt to edit out critical perspectives, but this vulnerability is worth noting should there be an attempt to rely solely on government for such analysis in future.

The US-based Center for Public Integrity released its first Global Integrity Report73 on 29 April 2004. This new tool, which tracks political accountability around the world, placed South Africa sixth out of the 25 countries surveyed.74 Although South Africa’s ranking in a so-called ‘top tier’ of countries made news headlines, the survey used 80 Integrity Indicator measures of the presence and effectiveness of anti-corruption mechanisms divided across six broad categories: civil society, public information and media; electoral and political processes; branches of government; administration and civil service; oversight and regulatory mechanisms; and anti-corruption mechanisms and rule of law. In addition to the quantitative measurements, the Global Integrity Report provides a corruption notebook, which is a 2,000-word original essay by a leading investigative journalist on the culture of corruption; and an integrity assessment, which is a 3,000-word report compiled by the lead social scientist to highlight the main features of each of the six main categories that make up the Integrity Indicators.


South Africa 30

The National Integrity System

Executive Thabo Mbeki was inaugurated as President and Head of the Executive on 27 April 2004. This is Mbeki’s second term as President and only the third term of office in a democratic Republic (Nelson Mandela preceded Mbeki as Head of State and Executive in the period 1994–1999).

The executive authority of the Republic is vested in the President, which is exercised, together with the other members of the Cabinet, by:

� implementing national legislation except where the Constitution or an Act of Parliament provides otherwise;

� developing and implementing national policy;

� co-ordinating the functions of state departments and administrations;

� preparing and initiating legislation; and

� performing any other executive function provided for in the Constitution or in national legislation.75

In terms of the Constitution, the President has the powers entrusted by the Constitution and by legislation. The President’s responsibilities include:76|

� assenting to and signing Bills;

� referring a Bill back to the National Assembly for reconsideration of the Bill's constitutionality;

� referring a Bill to the Constitutional Court for a decision on the Bill's constitutionality;

� summoning the National Assembly, the NCOP or Parliament to an extraordinary sitting to conduct special business;

� making any appointments that the Constitution or legislation requires the President to make, other than as head of the national Executive;

� appointing commissions of enquiry;

� calling a national referendum in terms of an Act of Parliament;

� receiving and recognising foreign diplomatic and consular representatives;

� appointing ambassadors, plenipotentiaries and diplomatic and consular representatives;

� pardoning or reprieving offenders and remitting any fines, penalties or forfeitures; and

� conferring honours.

At its first sitting after its election, the Constitution empowers the National Assembly to elect a woman or a man from among its members to be the President. When elected President, a person ceases to be a member of the National Assembly and, within five days, must assume office by swearing or affirming faithfulness to the Republic and obedience to the Constitution.77 What is important in the Southern African context, where Presidents such as Robert Mugabe look set to carry forward the legacy of Hastings Banda and Mobuto Sese-Seko of ruling for life, is that no person may hold office as President for more than two terms. The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of:78

� a serious violation of the Constitution or the law;


South Africa 31

� serious misconduct; or

� inability to perform the functions of office.

In his first term of office President Mbeki, who had served a term as Mandela’s Deputy, focussed on enlarging the office of the Presidency. Parallels have been drawn with the US West Wing in the White House. Mbeki’s argument is that it offers him a better ability to co-ordinate the functions of government and expands his ability to shape and define both domestic and foreign policy.

The President selects the Deputy President, ministers and deputy ministers (who make up the Cabinet) from among the members of the National Assembly, and may select no more than two ministers from outside the Assembly. The Cabinet appointed after the April 2004 elections consists of 27 separate ministries. These are:

� Agriculture and Land Affairs;

� Arts and Culture;

� Communications;

� Correctional Services;

� Defence;

� Education;

� Environmental Affairs and Tourism;

� Finance;

� Foreign Affairs;

� Health;

� Home Affairs;

� Housing;

� Intelligence;

� Justice and Constitutional Development;

� Labour;

� Minerals and Energy;

� Provincial and Local Government;

� Public Enterprise;

� Public Service and Administration;

� Public Works;

� Safety and Security;

� Science and Technology;

� Social Development;

� Sport and Recreation;

� The Presidency;

� Trade and Industry;

� Transport; and

� Water Affairs and Forestry.

The Deputy President and ministers are responsible for the powers and functions of the Executive assigned to them by the President. Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the


South Africa 32

performance of their functions. They must both act in accordance with the Constitution and provide Parliament with full and regular reports concerning matters under their control.79

The conduct of Cabinet members and Deputy Ministers is governed by strict conflict of interest provisions in the Constitution They must act in accordance with a code of ethics prescribed by national legislation (the Executive Ethics code) and may not:80

� undertake any other paid work;

� act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or

� use their position or any information entrusted to them to enrich themselves or to improperly benefit any other person.

All executive decisions by the President are also required to be in writing if they are taken in terms of legislation or have legal consequences. A written decision by the President must also be countersigned by another Cabinet member if it concerns a function assigned to that other Cabinet member. The Constitution also stipulates that proclamations, regulations and other instruments of subordinate legislation must be accessible to the public.81 One of the means used to disseminate such information is the internet (although access to the internet in South Africa is by no means universal yet).

The Executive arm of government, particularly members of Cabinet, have emerged relatively untainted by corruption since 1994. This is probably the result of good salaries, a high level of oversight from both the Opposition and the media, and, with a few notable exceptions, a group of committed individuals within Cabinet. The ‘notable exception’ refers to the questionable policy perspectives of some members of the Executivem such as the Minister of Health’s stance on HIV/Aids, and not to their personal integrity as elected officials. A strong standard of checks and balances has been put in place with the creation of the Executive Members’ Ethics Act (No. 82 of 1998). This requires the disclosure of assets and interests by senior officials, which should be recorded in the register of Executive Members Interests that the President’s office has a duty to maintain. Aspects of the Act are discussed in detail in the Questionnaire below. However, the most important provision in the Act in this regard – s.2(2)(c)- applies to Cabinet members and Deputy Ministers:

”Cabinet Members and Deputy Ministers are required to disclose to an official in the office of the President designated for this purpose, and Members of the Provincial Executive (MECs) to disclose to an official in the office of the Premier concerned designated for this purpose:

o all their financial interests when assuming office; and

o including any gifts, sponsored foreign travel pensions, hospitality and other benefits of a material nature received by them or by such any financial interests acquired after their assumption of office, persons having a family or other relationships with them as may be determined in the code of ethics”.82

Although the Office of the President and the Premier’s Office in all nine provinces are required to keep a register of Executive Members’ Interests, there is no oversight or sanction mechanism in the Act as it is meant to prevent rather than punish unethical practice. In addition, the Register is divided into a public and a private section, further limiting the potential oversight role that the media and civil society could play in scrutinising it.

Ministers do, however, have to declare their gifts and interests as Members of Parliament, in line with the Code of Conduct for Assembly and Permanent Council Members. Perhaps the most prominent example of a member of Cabinet who failed to declare interests is that of Defence Minister, Mosiuoa Lekota, who failed to declare his directorship of a winery and shares he had in a petroleum distribution company. He was found guilty of contravening the Code of Conduct for MPs, given a written reprimand by the Parliamentary Ethics Committee and fined seven days’ pay. This was a relatively light sentence given the position of authority held by the Minister.


South Africa 33

Two issues that require attention by Parliament and the Executive pertaining to potential conflict of interests are set out below.

� The first issue relates to the fact that no post-employment restrictions are in place, with the exception of provincial arrangements in Gauteng and the Western Cape, which may lead to a revolving door between business and government. The JIT report (which is discussed as part of the arms deal investigations in the corruption profile section of this study), does single this out for action. Recent examples of senior officials entering business within weeks of departing office include the former Premier of the North-West Province, Popo Molefe, who, within approximately two months of leaving the highest office in South Africa’s ‘platinum province’ (so-called as it home to some of the wealthiest platinum deposits in the world), joined a consortia involved in the purchase of platinum mines. The former Minister of Justice, Penuell Maduna, announced his involvement in a black economic empowerment purchase of a stake in the country’s biggest (and also one of the biggest in the world) synthetic fuel companies within a month of departing office. Although no evidence of corruption exists, it may be better to exercise caution in ensuring a more substantial cooling-off period of six to twelve months.

� The second issue relates to the increasing frequency of lucrative government contracts being awarded to the partners (often wives or lovers) of senior officials in national, provincial and local government. One example is that of Nambita Stofile, wife of the former Eastern Cape Premier (and a current national minister), who benefited from business in that province. She has denied having any unfair advantage.83 Similarly, the wife of Manne Dipico, the former Premier of the Northern Cape, is linked to a company that received payments, in return for services rendered, from his government.84

“These examples all point towards the need for the Ministerial Handbook to go further in preventing conflict of interest. One proposed option is for partners and children of senior officials to be excluded from government business. They have a constitutional right to partake in the economy, however to avoid even the inference of a conflict of interest, they should focus on doing business with the private sector instead. Given the size of the South African private sector, this should be possible”.85

In terms of the relationship between Parliament and the Executive, concerns raised by Members of Parliament include the fact that some members of the Executive (although by no means the majority) are often not sufficiently accommodating of requests to appear before parliamentary portfolio committees. This results in parliamentary committees having to schedule their diaries around those of the Executive as opposed to vice versa. This has a direct impact on the ability of Parliament to play an effective oversight role over the Executive.

Legislature “Parliament is far more important than any single institution in terms of the role it plays in combating corruption”.

Gavin Woods, MP- IFP, former Chairperson of Scopa.86

“One of the effective roles that Parliament can play is around developing and cementing anti-corruption measures”.

Nathi Nhleko, ANC MP, former Chief Whip.87

The South African Parliament has played a meaningful role in ensuring that effect is given to political commitments to combat corruption. This is evident from the emphasis the Constitution places on institutions designed to ensure both accountability and transparency in government, but equally from the plethora of anti-corruption legislation88 passed by


South Africa 34

Parliament. The function of Parliament is, however, not only to legislate but also one of oversight and monitoring, particularly of the Executive and the civil service.

Parliament consists of two houses: the National Assembly and the NCOP (National Council of Provinces). According to the Constitution, the National Assembly is: “

“elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinising and overseeing executive action”.89

In exercising its legislative power, the National Assembly may:90

� consider, pass, amend or reject any legislation before the Assembly; and

� initiate or prepare legislation, except money Bills.

Importantly, the Constitution requires the National Assembly to provide for mechanisms:91

� to ensure that all executive organs of state in the national sphere of government are accountable to it; and

� to maintain oversight of the exercise of national executive authority, including the implementation of legislation; and any organ of state.

Parliamentary committees are key to oversight (discussed later in this section). In addition, the President is required to appear before the National Assembly during each sitting (approximately four times a year) to answer questions. Opposition parties have bemoaned the scarcity of this opportunity, as it limits the interaction between the head of the Executive and members of the Legislature to relatively superficial interactions. In addition, opposition parties use this opportunity for scoring ‘big’ political points, which may have been avoided by more frequent interaction. The Minister of Finance is required to deliver his Budget for discussion and approval to Parliament on an annual basis, as are all other Ministers. Ministers may be called to account on special matters before Parliament as well.

The NCOP represents the interests of the countries’ nine provinces in the National Assembly. However, the legislative authority for the provinces rests in nine separate provincial legislatures. The NCOP consists of 54 permanent members and 36 special delegates (each province is allowed 10 representatives). The NCOP gets a mandate from the provinces before it can make certain decisions. It cannot, however, initiate a Bill concerning money, which is the prerogative of the Minister of Finance.

The 400 members of the National Assembly are elected through a proportional system of representation that allocates seats according to the performance of parties in a national election. Given the oversight role of Parliament, many analysts have argued that a danger exists that the leadership of political parties—some of whom also have an executive function—will ensure that those MPs less likely to critique the Executive are placed on party lists. This could result in a situation where membership of Parliament is used to bestow reward for loyalty to the party leadership as opposed to the political party and its electorate. What may go some way towards dealing with this is the acceptance of the principle of direct representation. President Mbeki created an electoral task team in 2002, headed by retired politician van Zyl Slabbert, to make recommendations for a reform of the electoral system. The final report was released in March 2003 and recommended that South Africa be divided into 69 constituencies, each with three to seven MPs, for future parliamentary polls. It states that: “

”The boundaries of the 69 constituencies would be drawn along existing provincial, municipal and metropolitan boundaries. Political parties would then draw up lists of constituency candidates similar to the provincial and national lists used in the current system. The constituency representatives would account for 300 members of the National Assembly, the remaining 100 being drawn from a closed national list. Cabinet decided not to implement this in the 2004 elections but instead mandated the newly-elected Cabinet and Parliament to consider appropriate policy to reform the current proportional system of government.92”


South Africa 35

At present 12 parties are represented in Parliament (see Table 3) with the ANC enjoying a significant majority of 70% of all seats. The two strongest opposition parties are the Democratic Alliance with 12.5% of seats and its election ally, the IFP (7%). Almost all parties have made pronouncements against corruption in the past and have supported various pieces of legislation designed to combat corruption.

Table 3 The state of parties represented in the National Assembly: Third term (2004–2009)93

Party Number of seats

African National Cognress (ANC) 279

Democratic Alliance (DA) 50

Inkatha Freedom Party (IFP) 28

United Democratic Movement (UDM) 9

Independent Democrats (ID) 7

New National Party (NNP) 7

African Christian Democratic Party (ACDP) 6

Freedom Front Plus (VF+) 4

United Christian Democratic Party (UCDP) 3

Pan Africanist Congress of Azania (PAC) 3

Azanian People’s Organisation (Azapo) 2

Minority Front (MF) 2

TOTAL 400

Source: Parliamentary Monitoring Group, <www.pmg.org.za>, 15 June 2004

The ‘real’ work in Parliament usually takes place in committees that draft legislation for approval by the National Assembly and NCOP and exercise oversight over individual ministries. Parliament has approximately 65 separate committees. The newly-appointed Speaker, Baleka Mbete, has indicated that there is likely to be a change in the number and scope of committees (presumably to promote co-ordination) and lighten the workload of MPs (particularly those from smaller parties that have fewer MPs). The National Assembly has 30 committees, which, in general, have a similar focus area to various government ministries (i.e. health, education, justice and constitutional development etc.). Notable exceptions to this rule are the Public Accounts Committee (Scopa), Private Members Legislative Proposals and Rules of the National Assembly Committee. Scopa has a key oversight function, which is discussed in detail in this section of the study.

The Constitution stipulates that the National Assembly or any of its committees may:94

� summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;

� require any person or institution to report to it;

� compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of the above; and


South Africa 36

� receive petitions, representations or submissions from any interested persons or institutions.

These powers give effect to the ability of Parliament to hold both high level officials and ministries to account, as well to interact with civil society and special interest groups that can make submissions to Parliament when a new piece of legislation is under consideration. At times the Legislature has also veered into other areas, such as protecting consumer rights when it called South Africa’s three large cellular phone networks to account for pricing and access to mobile telephony in 2003.

The former Chief Whip of the ANC argues that that while the period between 1994 and 1999 was characterised by “churning out legislation”, since then the focus has been at a level of policy implementation and execution. This has meant that MPs are increasingly paying site visits to areas of service delivery.95 Increased contact between Parliament and communities where needs exist, and oversight over government, could ensure that Parliament is not reduced to rubber-stamping Executive decisions, but rather takes seriously its role as the voice of the electorate (talking to power, as it were).

Gwen Mahlangu, Deputy Speaker of the National Assembly, has urged MPs to take their oversight role seriously and warned them of the danger of sounding like imbongis (praise singers) for the government. A member of the ANC, Mahlangu criticised the use of speeches written for parliamentarians by the departments over which they exercise an oversight responsibility. “When you listen to the debate, at times you ask whether MPs are also members of the Executive. They stand up there and are praise singers for the department,” she said.96 She added the candid observation that “having been sitting in the chair as deputy Speaker, I now understand at times [that it] gets boring. You just sit there and don’t know if you’re listening to another deputy minister (or MP)”.97

Scopa One of the key oversight committees in Parliament is the Standing Committee on Public Accounts (Scopa) to whom the AGSA is required to submit all reports to Parliament so that they can be sufficiently interrogated.

It is argued that Scopa has been weakened in the past three years as a result of the arms deal. Prior to releasing the results of his investigation into the arms deal the AGSA passed these to Cabinet, which had made the procurement decision, on the basis that it was a special report. There have been allegations that Cabinet then changed or at least had privy to the content of the report prior to Scopa, which was an example of Executive intervention designed to weaken the oversight power of Parliament, according to the former Chair of Scopa, Gavin Woods (IFP). He found support in these concerns from an ANC member of Scopa, Andrew Feinstein, who also resigned from Scopa in protest on 1 September 2001. The result, some MPs argue, is that Scopa, far from being the independent-minded body it once was, is now more in line with the wishes of the Executive and may be less rigorous in its probing should another controversy such as the arms deal surface. It is a matter of record that Woods distinguished himself as Chair in that he and other Scopa members rejected an AGSA’s report on the Department of Correctional Services (DCS) and called for their own investigation. The prisons are notoriously corrupt, so much so that President Mbeki launched the Jali Commission of Enquiry in 2002 to probe corruption in the prison services. The Department was allegedly rotten to the core and this was a great cause for embarrassment for the Minister—a member of the same party as Woods (the IFP). The view that Woods holds is, to some extent, shared by former PAC MP and now leader of the Independent Democrats (ID), Patricia de Lille, who has remained critical of aspects of the arms procurement throughout the process: “I am proud of the institution (Parliament) but I think I am also duty bound to say where it has failed. With the arms deal it failed hopelessly, absolutely hopelessly…”98 In January 2005 further fuel was added to the arms deal controversy when Richard Young, an SA arms contractor who lost a contract for one of the ‘combat suits’ in the arms deal, used access to information legislation to wrestle earlier drafts of the ‘arms deal report’ (the JIT report) into the open. The document appears to refute earlier claims by Fakie that the report was edited in any material way. Some of the glaring ommissions from the final report (possibly made at the behest of the executive) include that99:


South Africa 37

� there were fundemental flaws in the selection of BAE/Saab as suppliers of training and fighter jets and that former Defence Minister Joe Modise “caused” the more expensive Hawk fighter jets to be selected despite the South African Airforce supporting an Italian aircraft.

� the award of contracts to supply new engines for military helicopters was irregular.

� the so-called off-set programme favoured certain parties such as BAE/SAAB and in the case of the submarine purchase the off-set evaluation process was ‘materially flawed’.

It is not yet clear Scopa or another parliamentary committee will call the AGSA to appear before it to explain the apparent contradiction the contents of the document and comments made when appearing before the committee to discuss the JIT report in 2002 and 2003.

Following his resignation, Gavin Woods was replaced as Chair of Scopa by Francois Beukmann, a member of the New National Party (NNP). This formed part of the co-operative governance arrangement between the ANC and the NNP, which was previously thought unlikely. This meant that the ANC upheld its tradition of appointing a member of the Opposition to the position of Chair, but selected a party with whom it was developing a close working relationship, leading to questions regarding the impartiality of the new Chair. Beukmann, however, claims independence (he is likely to join the ANC under a new working agreement between the NP and ANC). Woods asserts that: “

”Francois Beukmann knew the least about finances. So he could be managed [by the ANC]. He is a lawyer, and he may be a brilliant lawyer, but he knows precious little about finances. With the emergence of sub-committees [chaired by the ANC] the work has been taken out of the hands of the Chair, leaving him basically to do administrative work”.100

He goes on to say that members of Scopa often do not do their ‘homework’ on the AGSA’s report, often merely repeating concerns or questions the AGSA has raised when calling in an individual Director General to discuss concerns. Patricia de Lille fears that “Scopa has become another compliance committee, stamping reports of government”.101 Other members of the Opposition also felt that this chain of events has left Scopa shaken. According to Douglas Gibson, the Chief Whip of the DA, “…it has suffered almost a mortal injury [following the arms deal investigation] It is going to take years for Scopa to recover, if it ever does.”102

Corruption within the parliamentary precinct The integrity of Parliament was undermined by corruption within its own ranks on very few occasions during the first 10 years of the ‘democratic Parliament.’ Lobbyists, for example, have not beaten down the door of Parliamentarians, a factor that may be ascribed to the proportional representation system. It makes more sense to influence the party leadership through its head office by trips to luxury game lodges and donations to political parties than by ‘targeting’ individual MPs. Since there are only a few votes on which parties promote the idea of MPs voting on their own conscience, such as legalised abortion, it is the party leadership, through the office of its Chief Whip, that holds enormous sway. This does of course not preclude government departments and state institutions – over whom Parliament exercises oversight – from employing less overt lobbying techniiques such as receptions and hosting the increasingly popular ‘golf days’ for MP’s.

There have, however, been minor, but significant, blips on the radar screen relating to the declaration of gifts and conflicts of interest (such as Toni Yengeni and Winnie Madikizela-Mandela). These are discussed below. Another blow, potentially more damaging, has been termed the ‘travelscam,’ which could not have come at a worse time for an institution that some analysts have started to term ‘the sinking ship’. A gloomy analogy, but it underlies the challenges faced by newly-elected Speaker, Baleka Mbete, and her team.

The parliamentary ‘travelscam’ No allegation of corruption from within the ranks of Members of Parliament has had bigger potential to damage the integrity of Parliament as an institution that what has come to be known as the ‘travelscam,’ in which as many as 135 MPs have been investigated, including


South Africa 38

Cabinet Members and both current and former Members of Parliament. Details of what the travelscam involves are given below. At the time of writing the Scorpions and private forensic investigators had given the Speaker of Parliament the names of 23 MPs who knowingly benefited from the travelscam. The Scorpions termed this ‘phase one’ of the investigation. The Speaker’s initial response was to refuse to release the names of the MPs under investigation, which drew fire from the media and the public. Although a number of newspapers released the names of the MPs implicated, it was ThisDay newspaper that eventually, on 2 September 2004, published the names of 136 MPs who were implicated in the initial investigations. The ANC and 92 of its leading politicians, including four Cabinet Ministers, threatening to sue ThisDay to the tune of R48 million, in response to its article headlined “Travelgate: full list of MPs”.103 In January 2005 the Scorpions stated that approximately 40 MP’s would be charged – by the date of the first court appearance on 18 February 2005 only 23 MP’s and former MP’s were charged (20 appeared before the court). The case was postponed to June 2005 but the NPA has made it known that it is considering plea-bargaining arrangemenst with a number of MP’s and the number may therefore be whittled down further by that date. The Scorpions have also according to media reports invited please bargains from the travel agents involved in the alleged scam.104 The Speaker has appointed a special task team of MP’s (headed by DA MP Sandra Botha) to review a forensic report produced by PricewaterhouseCoopers as well as a memo prepared by the head of the NPA (Vusi Pikoli) with a view to making recommendations to improve parliamentary procedure.105

The details of the scandal are as follows: At the beginning of each year MPs are issued with a ‘cheque book’ of vouchers that can be used to travel between Parliament in Cape Town, their constituencies and their homes. The number varies only if MPs live within a certain radius of Cape Town, in which case fewer vouchers are issued. Six travel agencies were allegedly involved in using the vouchers to claim refunds from Parliament for travel expenses, either without the knowledge of Parliamentarians (which is fraud), or with the knowledge of Parliamentarians for purposes other than those for which they were allocated, such as luxury holidays or even cash. In July 2003 ITC travel agent, Estelle Aggujaro, claimed that 20 MPs had been implicated in making irregular travel and accommodation arrangements, which included free flights, car hire and hotel stays.106 At this time travel agents were already charged with fraud. Parliament launched a full audit in mid-2003 as details began to emerge of the extent of the scam. In December 2003 the Sunday Times investigative unit (Jessica Bezhuidenhout and Mzilikazi wa Afrika) reported that South African Airways (SAA) had added weight to Parliament's finding of gross abuse of the travel voucher system.107 By January 2004, Mzilikazi Wa Afrika reported that:

“more than 40 MPs have signed agreements to pay debts owed to ITC Travel Services, one of the five travel agencies appointed by Parliament, that is implicated in a R15-million parliamentary voucher scam. According to these deals, any MP who fails to pay money owed to the travel agency within a year will have summons issued against her/him and will face being blacklisted for bad debt.”108

By then, PricewaterhouseCoopers investigators were already in the process of liquidating ITC Travel Services after it had allegedly defrauded Parliament of millions of rands by submitting fraudulent or inflated invoices.

According to a charge sheet submitted to the Cape Town Magistrates Court by the Scorpions on 27 July 2004, the travel agents stand accused, in instances in which MPs were not aware of the misuse of vouchers, of:109

� issuing and cancelling air tickets on the same day but nevertheless submitting an invoice to Parliament;

� altering the destinations to inflate the fare;

� copying official parliamentary travel vouchers and submitting these as valid claims;

� issuing tickets to non-MPs using a parliamentarian’s personal details; and

� claiming more than once for an air ticket.


South Africa 39

One of the arrested travel agents is Soraya Beukes, Director of Business and Executive Travel. Beukes is the life-partner of Lynne Brown, who is the Western Cape finance MEC and treasurer for the ANC in the Western Cape. Although Brown is not implicated, this situation highlights the danger of the intersection between (public) political and (private) economic interests.

Examples of fraud by the 23 MPs from the ANC (19), NNP (4) and DA (1), as quoted in the Sunday Times from the Scorpions/PricewaterhouseCooper report, include the following:110

� about 10 MPs exchanged their vouchers for cash, with one senior MP pocketing more than R50,000 after cashing in his vouchers;

� another top MP enjoyed a trip to Chicago via London with his girlfriend, paid for with his parliamentary voucher;

� a number of MPs hired luxury vehicles and stayed in five-star hotels, their bills being settled with vouchers intended only for economy-class airfares;

� some MPs used their vouchers to fly friends and relatives, who were not even government officials, to South Africa;

� two MPs were either shareholders in, or financially benefited from, some of the agencies; and

� one MP used his vouchers to settle a bill for cars hired for his wedding.

Some of the MPs have now taken steps to pay back the funds.

This was, however, not the first time that Parliamentarians have been implicated in the abuse of travel vouchers. As far back as 2001, ANC MPs John Ncinane and Khatliso Moeketsi were publicly reprimanded by the then-Speaker, Frene Ginwala, for misusing travel vouchers. Similarly, an internal probe launched by Parliament found in September 2003 that ANC MP Bheki Ntuli was guilty of a similar offence.111

According to press reports, Scopa is poised to investigate Parliament’s financial and internal management system after a recent report by the AGSA raised concerns about internal controls and unauthorised expenditure. According to a consultants’ report, “Parliamentary financial management systems, prior to 2004, were seen as disastrously inefficient…creating a possibility that Parliament might find itself unable to meet its obligations and putting it at risk of all kinds of error and/or fraudulent practice.”112 The report, in the possession of the Cape Times, goes onto detail some of the shortcomings in Parliament’s financial management system: “Members travel warrants for example, could not be properly recorded. Pending liabilities were not recorded, so there was no way to determine what should not be paid. One invoice for example was paid several times”.113

Of relevance to the travelscam is the fact that, according to the report: “Parliament was ‘wide open’ to all kinds of fraud from both suppliers [like travel agents] and staff, and inadequately protected against error on the part of under-qualified staff.”114 Trade unions in Parliament (including the powerful Nehawu) have, however, treated the report with caution as they fear that it fingers lower-ranked staff for incompetence, thereby shifting the blame from senior manager and those individual MPs who are responsibile for the travelscam.

At the heart of the travelscam is the integrity of South Africa’s elected representatives. As journalist Brendan Boyle points out:

”…there is little discussion about the culture that makes a newly-elected MP or a newly-appointed director-general believe that the position carries an entitlement to gifts and privileges unrelated to productivity. Legislators don’t ask why every government department feels it necessary to throw a party for MPs during the two weeks of the budget debate, one at a cost of over R140,000. Nobody is asking why too many of those on the public payroll seem to assume they are entitled to fly business class on the two-hour shuttle from Johannesburg to Cape Town…Parliament is moving to ensure there is no similar fraud in the future, but the better answer lies not in the letter of the law, but in the spirit of the rules aimed at constraining deviant behaviour. These rules shouldn’t simply define the starting line of an unseemly scramble for enrichment in cash or kind.” 115


South Africa 40

The editor of the Mail & Guardian, Ferial Haffejee, also argues that the desire for the ‘high life’ is what is at the heart of the travel scam. As she points out: “

”The social distance between the governed and the representatives is nowhere more starkly symbolised than in this sorry saga…It is a source of some comfort that the investigation was ordered by Parliament itself, as this speaks to a new spirit of vigilance…But more needs to happen to close the widening gap between the people and their tribunes. Take a taxi, ek sê, and stay in touch with the plain folk who are forced to do so.”116

Managing conflict of interest in Parliament In order to guard against a conflict of interest among its members, Parliament promulgated the Code of Conduct for Assembly and Permanent Council Members (1997). This requires members to declare any personal or private financial interests of theirs, of their spouse, partner or business partner, and to withdraw from proceedings of a committee where a conflict of interest may arise. In addition, the Code makes provision for the establishment of Register of Members Interests in which MPs must disclose registrable interests (these are discussed in detail in the relevant questionnaire below). There is, however, no mechanism, other than public oversight as a result of access to the public section of the register, to ensure that members’ activities do, in fact, match declared interests. The register is kept up to date by the Registrar of Members’ interests who serves on the Joint Committee on Ethics and Members Interests. The majority party holds a majority of one on the Committee, and gives the Registrar directives. This has been raised as a cause for concern as it may result, in some instances, in the majority party holding back on sensitive investigations (this is a long-term danger).

The Committee also has no salaried staff and can therefore not launch any investigations, thereby limiting its powers. Where the Committee has used the provisions at its disposal to force members to account to it (as with the cases involving Winnie Madikizela-Mandela, Toni Yengeni and Mosuia Lekota), this has happened in closed meetings, limiting the ability of the media and civil society to monitor the way in which the Committee deals with such matters. The sanctions that the Committee has at its disposal are relatively weak (at worst, a fine of a month’s salary or the suspension of the rights and privileges of a seat in Parliament for 15 days). However, the ‘embarrassment factor’ of being hauled before the Committee may prove sufficiently threatening for some MPs, particularly young politicians and back-benchers who have their sights on higher office and do not yet enjoy any political protection from party leadership. Similarly, senior officials such as Ministers or party leaders are unlikely to relish the public attention that being called before the Committee is likely to place upon them, and the resultant bad publicity for the party concerned.

In September 2004, after the new Register of Members’s Interests was made public, unregistered shareholdings were reported in the Mail & Guardian, including that of the Speaker of the NCOP, Joyce Kgaoli, who failed to declare that she is a director in AllPay Gauteng. Mrs. Kgoali has since passed away. This company distributes social grants to more than 1.8 million beneficiaries in that province.117 Kgoali, a former Gauteng MEC, tried to gag the Mail & Guardian from publishing these details. It emerged thereafter that Sediba sa Basadi, of which Kgaoli is a trustee, has a 6% empowerment shareholding in Allpay.118 It has also emerged that Angie Motshekga (then-MEC for social development) recommended to Allpay that Sediba sa Basadi be considered as a partner. Other than Kgoali, Sediba sa Basadi counts former Gauteng Premier, Mathole Motshekga, as a trustee. He is also the husband of Angie Motshekga. A month before this story broke, Joyce Kgaoli, the Chair of the NCOP, declared in a debate on the parliamentary travelscam that: “Accountability and transparency are the foundations of any democratic Parliament. These are the values for which so many of us sacrificed, and we challenge anyone who dares to question our unwavering commitment to them.”119 If the allegations prove to have substance,

Mbulelo Goniwe, the ANC Chief Whip, was more candid when the Mail & Guardian asked why he had not disclosed certain financial interests, remarking, “So what? I am not going to take this shit of yours any more. I may have special reasons that made me mot declare”.120


South Africa 41

Baleka Mbete has often spoken in defence of (some) members who fail to register gifts, stating that although she reports gifts:

”as small as a disposable pen or a teaspoon…the importance of record-keeping could be difficult for some members from rural backgrounds who had no experience of administration. She said some of the most valuable representatives were sent to Parliament by communities who knew and trusted them.”121

Quoted in the Sunday Times, she added that:

”They know the integrity of this person in terms of the setting from which that person comes, so you mustn’t set standards that have nothing to do with that reality to judge the person.”122

Mbete makes a valid point regarding training around disclosure provisions. MPs were briefed on the rule governing the disclosure of gifts over the value of R350 shortly after taking office. However, her statement is nonetheless inconsistent with reality since MPs are not directly elected by communities, but by party structures. At best, when appointments are not made by a party leadership, these appointments involve the politically-organised segment of the community, which is involved in a branch of the party, nominating candidates for approval by the party leadership (such as the ANC National Executive Committee and the DA Federal Council).

Additional challenges facing Parliament The issues of resource allocation also appears to be key, as, according to the Chief Whip of the DA, Douglas Gibson:

“…all portfolio committees are, virtually without exception, grossly under-resourced and I don’t think that they can hold the government to account properly, because there is a lack of capacity.123

Nathi Nhleko, the former Chief Whip of the ANC, supports this:

“…it is impossible to work without adequate research capacity. We (ANC) do have researchers but they are not properly structured as machinery that has got to drive and influence the kind of work that we do here from time to time. So we are looking into that…Unless we have adequate research we are not going to be able to cope around this area of (executive) oversight”.124

The UDM’s former MP, Annelise van Wyk (now a member of the ANC) also bemoans this situation: “We have one researcher serving 16 members and he is also a speech-writer for the leader (of the party). We are in need of independent research.”125 The Deputy Speaker of Parliament, Gwen Mahlangu, has urged MPs to make better use of Parliament’s research staff, parliamentary library and academic institutions in Cape Town, underscoring the need for MPs to look beyond information provided to it by the Executive. “Let’s try and make use of all those things that are around us that are trying to make us better,”126 she said.

South Africa’s electoral system, and the role of the party leadership in compiling election lists, also threatens to have a real impact on the ability of Parliament to exercise effective oversight. Patricia de Lille takes a dim view of this:

“Parliament has become…useless because we are controlled by the Executive and have to hold the Executive to account…The reason for that is the way that the majority party [the ANC] is structured, with all senior members of the party in the Executive as Ministers and all the junior members are members of Parliament, and the juniors will not challenge the seniors. And most of the seniors are also on the national Executive of the party [which, in turn, compiles the final version of the party’s candidates list]”.127

According to Nathi Nhleko, “The area of oversight…by Parliament over the Executive…is an area that must be sharpened.”128

A further challenge that needs to be addressed is the fact that there are no post-employment provisions for members of the Legislature – similar to other arms of government. Without regulatory attention this could lead to a revolving door between elected representatives and industries—or, for that matter, government office—in areas that they have a duty to monitor on behalf of the electorate.


South Africa 42

Political parties The Independent Electoral Commission (IEC) records a total of:

(startquote)132 political parties countrywide, 70 of which are registered at national level and 62 at municipal level. Of the 70 parties registered at national level only 12 are represented in the National Assembly. Smaller parties have much broader representation at a local level where 59 of the 62 parties have representation at a local level.129 (endquote)

During the period of the last available annual IEC report (31 March 2003), the IEC registered 21 political parties at a national level. Twelve were established in the wake of floor-crossing.130

The ANC is the largest political party both in terms of resources, membership and support at the polls (it received approximately 70% of the vote in the April 2004 elections). It is also bolstered by its alliance with Cosatu and, to a less significant extent, the South African Communist Party (SACP). The party also holds a majority in eight of the nine provinces and rules in coalition with the New NNP in the Western Cape, which, as a result, also has an ANC Premier. The desire to work closely with the ANC cost the NNP—a reinvented relic of the apartheid-eraNPdearly. By 2004, the once mighty NNP—which even during the 1994 election secured 20% of the votes—had seen its support drop to below 2%, and it announced that its representatives were free to join the ANC during the next election. Martinus van Schalkwyk, the NNP leader, will retain the position of Minister of Environmental Affairs within an ANC Cabinet, although approximately 250,000 voters will see the party they voted for exist only in name within six short months of the election.

Opposition politics is dominated by the DA whose market-friendly policy is often indistinguishable from the ANC, were it not for the fact that the majority of the party’s leadership are white (although that appears to be slowly changing). Although long styled as a ‘liberal party’, the DA has worked hard at attracting former NNP politicians and voters. This has not come without cost as there is apparent growing support within the party for conservative policies such as a constitutional change to allow for capital punishment. The DA chose the former Zulu nationalist IFP as its ally in the 2004 elections and relations between them appear to remain strong. Both the DA and IFP have consistently raised allegations of abuse of power and corruption within the public sector.

Among the other parties, the majority of whom represent minority or special (for example, religious) interests, the best performer at the polls is the UDM, headed by Bantu Holomisa (who was ejected from the ANC after having raised allegations of corruption involving former homeland leader and then-Cabinet Minister, Stella Sigcau, and casino kingpin Sol Kerzner in 1997). Another politician who is closely identified with anti-corruption efforts is Patricia de Lille, former firebrand of the PAC who established the ID in 2003 and is the only (black) woman to lead a political party. While still a member of the PAC she earned the public wrath—but possibly also the private respect—of leaders of government for her fearless approach towards uncovering corruption in the arms deal. The ID remains a small party, however, with the majority of its support base centred around the Western Cape Province.

Party funding Since 1997 South Africa has had legislation in place governing the public funding of political parties (Public Funding of Represented Political Parties Act No. 103 of 1997). The IEC is responsible for managing the Represented Political Parties’ Fund. The Fund is credited with monies appropriated by Parliament and donations from any source. Section 6 of the Act makes it a requirement for political parties to account for the monies they


South Africa 43

receive from the Fund and empowers the Auditor-General to audit any political party’s financial records relating thereto. There have been few examples of irregularities and the system has been relatively well-managed.

One glaring exception is private funding of political parties, which is completely unregulated. This is probably one of the last areas in which corruption can go both undetected and unpunished, given the country’s extensive anti-corruption armoury. According to Patricia de Lille, currently leader of the ID, unregulated private funding of political parties is “the root of corruption in government and in this country.”131

Private funding is thought to outstrip public funding by approximately five to one, which could create room for private donors to gain unfair advantage over a largely poor electorate. A prominent recent case of corruption in private funding of political parties involves the former Deputy Minister for Social Development, David Malatsi. He allegedly accepted R400,000 in donations for the NNP from Italian businessman, Riccardo Augusta, the developer of the Roodefontein Golf Estate in Plettenberg Bay.132 Augusta has since admitted that the money was intended to buy permission for the development from Malatsi, who was in charge of the province’s environmental affairs at the time. The golf estate was given the green light despite environmental impact studies that advised against such an estate in this environmentally-sensitive area. There are numerous other allegations of foreign governments and/or wealthy individuals (often themselves implicated in corruption scanndals) funding political parties. Most recently – in December 2004 - a public spat broke out between ID leader Patricia de Lille and her Western Cape chief Lennit Max over funding the ID received in the 2004 elections. Max alleged that de Lille received money from a well known Western Cape gang figure while de Lille refuted this and suspended his party membership. If their was legislated transparency regulating the funding of parties this may well have been avoided.

Although the need for regulation was raised by civil society organisations (CSOs) such as Idasa as far back as 1997, there have been renewed efforts in the past year to place the issue back on the public agenda. The need for sustained civil society involvement became clear when it was realised that Parliament would not include a clause on the private funding of political parties within the Prevention and Combating of Corrupt Activities Act. Although a number of NGOs and CSOs have argued the point, Idasa has now proceeded to launch a high court case to force disclosure of sources of private funding by political parties. This followed a request by Idasa that parties – as public bodies – should reveal their source of funding in terms of Access to Information legislation. Only the ACDP complied with this request pitting the ANC, DA, IFP, and NNP in a legal battle against Idasa in the Cape High Court. At the time of writing the bench was prepering to deliver a judgement on this matter.

Whatever option is found to resolve this issue, it is clear that some of the smaller parties are also concerned with openness, which they fear could prejudice their fundraising, according to Koos van der Merwe, Chief Whip of the Inkatha Freedom Party. “I go to somebody and I say to him, listen, I know you are soft on the IFP, I know that you have got lots of money, but we have a by-election, we need funds. Then he says, look, I will give you the R50,000, but you know I am getting a lot of government contracts. On one condition I will give you the cash, just don’t say that it came from me. That happens.”133 In the run-up to the 2004 national elections a number of large corporations disclosed the funding they provided to political parties, a likely effect of civil society lobbying for this to happen. Some corporations, such as the South African-based global gold giant, Anglogold-Ashanti, has gone as far as developing a policy that will, in future, guide all donations to political parties.

Another argument in favour of regulation is the fact that the African Union Anti-Corruption Convention (2003) includes a section dealing with disclosure of private funding to parties. The DA has submitted a private members’ Bill (by Douglas Gibson) for consideration by Parliament with a threshold of R50,000, above which disclosure is required. Gibson argues that, “…if you can be bought for less than R50,000 then you are very cheap”.134

This is an area that CSOs are also actively pursuing. Apart from the court case being pursued by Idasa (with Transparency South Africa, T-SA, acting as an amicus on the matter), the organisation also made a detailed proposal to the Portfolio Committee on Justice and Constitutional Development in August 2002 during deliberations on the new


South Africa 44

corruption act. These were supported by the South African Catholic Bishops Conference and the ISS. With the next national election almost five years away, the next two to three years before fundraising commences in earnest provide an ideal opportunity for reform.

Independent Electoral Commission The IEC is one of the state institutions supporting democracy whose independence is guaranteed by the Constitution. Accordingly, the Constitution states that the IEC must:135

� manage elections of national, provincial and municipal legislative bodies in accordance with national legislation;

� ensure that those elections are free and fair; and

� declare the results of those elections within a period that must be prescribed by national legislation and that is as short as reasonably possible.

According to the Electoral Commission Act (51 of 1996), the functions of the IEC include, among others:136

� managing any election;

� ensuring that any election is free and fair;

� promoting knowledge of sound and democratic electoral principles;

� maintaining a voters’ role and a party list; and

� adjudicating over election disputes.

The process for appointing the five members of the commission (one of whom must be a judge) commences when a South African who does not hold high political office is nominated by majority vote in the National Assembly or a multi-party committee of the National Assembly. The National Assembly’s list of nominations must be based on those received from a panel consisting of the Chairperson of the Constitutional Court, a representative of the Human Rights Commission, the Public Protector and a representative of the Commission on Gender Equality. The President appoints each commissioner for a period of seven years, including the chair and deputy chair.

The IEC is required to submit an audited report to Parliament as soon after the financial year as possible. This is done through the Home Affairs portfolio committee. Pantsi Tlakula is the Chief Electoral Officer and she reports to the five members of the commission. Since her appointment the IEC has focussed, among other things, on reforming its internal procurement process.137 In the year ending 31 March 2003 (the last year for which a report is available), the IEC employed 172 staff with a further 73 approved posts remaining vacant. The majority of the vacant posts are located in Financial Management (29) and Information Technology (30). The IEC received funding of R210,756 million during the year of the report. This was a non-election year and the income/expenditure for the period ending 31 March 2004 and 31 March 2005 can be expected to be much higher. The national/provincial elections in April 2004 are expected to cost more than R500 million and the country will also see local government elections in approximately 14,000 districts in late 2005/early 2006. The National Treasury has allocated sufficient funds to the IEC in the past to ensure that elections are not hampered by a lack of resources.

There have been no allegations of corruption involving the Independent IEC. Similarly, although political parties are prone to bussing delegates to large election rallies there is insufficient evidence to support actual cases of vote-buying. An area that does need to be monitored in future is the use of state resources in political campaigns. This is noticeable in some provinces, such as the Western Cape, where, in the run-up to the 2004 national elections, the public administration budgets were used to print posters and messages that prominently feature photos of the Premier. This is, in many instances, a difficult area in which to prove corrupt intent.


South Africa 45

Supreme Audit Institution The Auditor-General of South Africa (AGSA) is appointed by the National Assembly and the independence of this office is guaranteed by the Constitution. The AGSA must report to the National Assembly (primarily through Scopa and its counterpart at a provincial level), and must, according to the Constitution, audit and report on the accounts, financial statements and financial management of:138

� all national and provincial state departments and administrations;

� all municipalities; and

� any other institution or accounting entity required by national or provincial legislation to be audited by the AGSA.

The office may also audit and report on the accounts, financial statements and financial management of any institution funded from the National Revenue Fund or a provincial revenue fund or by a municipality, or any institution that is authorised in terms of any law to receive money for a public purpose.139 The AGSA must submit audit reports to any legislature that has a direct interest in the audit, and to any other authority prescribed by national legislation. All reports must also be made public.140 The AGSA has the additional powers and functions prescribed by national legislation, such as the Public Finance Management Act which prescribes, for example, that the AGSA must report to Parliament on specific and general findings regarding accountability of public entities.141

As indicated in the section dealing with Parliament, the independence of the office of the AGSA was called into question following the arms deal investigation. However, it should also be recognised that because of these accusations, the Office of the AGSA has shown some resilience in the past two years. Scopa has also announced that it “…wants an apartheid era law amended to avoid the perception of undue Executive influence on the Auditor-General—as was the case in the arms probe...It recommended that in the case of a forensic investigation, the Auditor-General need not consult the Executive, as was the case in the arms deal investigation, or that he should limit his report on the defence special account—only so far may be essential in the national interest.”142 However, what is in the ‘national interest’ and therefore not open to public scrutiny is debatable.

With a full- and part-time staff complement of approximately 1,500, who are paid market-related salaries, the office of the AGSA has managed to play an important preventative role through its small, forensic auditing division.143 In addition to the special audit investigations (such as that into the arms deal), the AGSA conducts a number of different types of audits and activities. These include:

� regularity auditing, which involves checking that the financial statements are a fair representation of the financial position of the audited body;

� performance auditing, involving checking that resources are purchased economically and are used properly and that effective management systems and controls are in place;

� computer auditing, to identify the strengths and areas of potential misuse of computer systems for data entry and financial transactions;

� environmental auditing, to support environmental protection and management practices through an audit approach to sustainable resource development; and

� forensic auditing, which facilitates the prevention, detection and investigation of economic crime.

Transversal audit issues include:

� the Public Finance Management Act and the submission of financial statements, which provide time-frames for the submission of financial statements (two


South Africa 46

months after the end of a financial year), which the AGSA monitors and report on;

� unauthorised expenditure; and

� budget auditing, to assess whether the decrease in amount not utilised in comparison with the previous year indicates that better planning and budgetary controls are in place.144

Although the previous Chair of Scopa, Gavin Woods, has criticised the AGSA’s reports as being partly superficial,145 this may also be reflective of the material provided by government departments. In a briefing to Scopa in November 2003 the AGSA bemoans the fact that “…only 69% of 163 national public entities had submitted information to [t]his office…This seriously undermines the accountability processes and principle under which these entities, which get significant funding from the state, operate.”146 The report adds that the bodies that did not generally provide information had a much higher incidence of dubious financial reporting: 43% of all entities that had failed to provide information had qualified audit reports.147 Fakie went reported that “…internal control problems had increased from 77 in 2001/02 to 133 in 2002/03”. Fakie blamed new reporting requirements, improved audit standards and capacity constraints in the government.”148 This all seems to suggest that performance of the AGSA is hampered by inaction from the civil service. This may point towards the need for increased capacity in terms of policies and procedures within errant departments to avoid a repetition of this practice.

Supporting this is the AGSA’s general report on audit outcomes for the year ending 31 March 2003. According to the report:

”Audit reports of the national departments for 2002-03 were once again largely unqualified. Only eight of the 33 departments received qualified audit opinions. Of these eight, four departments have been qualified for the past three years. These are:

� Home Affairs;

� Justice and Constitutional Development;

� Public Works;

� Water Affairs and Forestry.”149

Although the report points out that:

”unqualified audit opinions are the norm for national departments, this does not provide the complete picture in terms of internal control and compliance with fundamental legislation. When reviewing this an alarming trend can be observed, namely an increase in the issues being found. The critical areas on which departments urgently need to focus their attention are:

� asset management;

� administration of transfer payments;

� internal audit function.

Insufficient management capacity in these areas could make departments susceptible to fraud, irregularities and poor performance. It could moreover have the effect that such practices are not detected. This could in part be borne out by the lack of reporting on losses, irregular expenditure and fruitless and wasteful expenditure.”150

At a provincial level the situation is equally worrying:

”At this level of government the three main sectors at the provincial level in terms of expenditure are Education, Health and Social Development. Their budgeted expenditure represents 80% of the total provincial budgeted expenditure. Education is the single largest area of expenditure (R52.7 billion) with Social Development receiving the largest increase (36.4%). The total expenditure of R119 billion for these three main sectors exceeds the total expenditure of R114 billion for all national departments. Only 14 out of 27 (52%) of these three major sectors in the nine province received unqualified opinions [meaning that they were not required to report back on questions from the AGSA]. The percentage of unqualified audit opinions has improved from 15% in 2000–01 to 52% in


South Africa 47

2002–03”.151

In the activity report for 2002–2003, the AGSA calls for reports for entities to include performance and not only financial statements (as per the Public Finance Management Act). The report points out that 92% of audit resources are allocated to the auditing of financial statements.152 At present the AGSA only undertakes ad hoc performance audits and argues that:

”The challenge that we face by concentrating on our auditing of financial statements is the expectation gap between the product my office delivers and the product the stakeholders require, since their focus is on service delivery. This gap in expectation will continue unless the financial statements submitted by audited entities contain information on performance measured against predetermined objectives.153”

Although the AGSA has “…identified the need for a shift in the scope of my reporting, [the report recognises that] extended performance information auditing cannot supersede the existing audit process.154

Another issue that requires attention is the fact that the AGSA makes extensive use of private forensic auditors (70–80% of the forensic auditing is outsourced). Their role is often constrained by the exact mandate given and the amount of funding available. For instance, in the investigation around the awarding of the third mobile phone licence (to Cell-C), there were only limited funds available for investigation. In this instance the AGSA was requested to undertake an audit by the Telecommunications Portfolio Committee. In his final report the AGSA indicated that he was concerned by impediments created by resource constraints and the urgency and haste with which he was requested to undertake the audit (a point he raised from the outset).155

The arms deal investigations still casts a shadow over the office of the AGSA, given that a concern exists in the mind of many members of the Opposition and of civil society that the AGSA could have done more to assert its independence as a Chapter 9 body as per the Constitution. His office is often personalised. Given the length of tenure (nine years) and the political cleavages created by the arms deal, these concerns are likely to linger. Douglas Gibson of the DA believes that, “We have somebody about whom the jury is out, and on the arms deal, as far as we [DA] are concerned, did not cover him with glory. He [the AGSA] did not show as much independence as we would have liked to have seen”.156

The AGSA, however, believes that there are positive lessons that can be learned in the wake of his role in the Joint Investigation into the deal:

� the process of co-ordinating the functions of all three agencies investigating the deal (Public Protector, AGSA, , AG, NDPP) was difficult, e.g. when the AGSA wished to interview a witness he required a mandate from the NDPP;

� there was never real clarity on the terms of reference and the basis on which the AGSAproceeded which never spelt out clearly enough;

� the size of the investigative team (50 people) made it a difficult group to manage and there were clear indications that information was being leaked; and

� the fact that the media undertook what he terms “con-current” investigations, which suggested an outcome prior to the publication of the report.157

Of the points raised the last is a clear swipe at the media. In many instances it has been media investigations that have fuelled the continued investigations undertaken by the NDPP into aspects of the deal.

Looking ahead, the AGSA sees himself only functioning through Parliament as an independent body. However, this does not preclude dialogue between himself and senior public officials at a DG level, in particular, and he feels that there is a healthy respect between himself and most DGs.158 He believes that in the long run this will contribute towards an understanding of the role of the public audits. Gavin Woods, however, points towards the inherent risk in efforts by the AGSA to give advice to departments that he will later audit. This, in his mind, may compromise an audit as the AGSA may be required to report to Parliament that the initial advice that his office gave was incorrect.159 Clearly, the way in which the office of the AGSA operates will evolve over time. However, this must be


South Africa 48

measured against the mandate it is given in terms of the Constitution. The performance of the AGSA will also be measured not only in terms of its relationship with the Executive but in how another pillar of this NIS (Parliament) probes its reports.

Judiciary This section provides a short descriptive overview of the scope, power and function of the South African judiciary, and discusses major challenges facing the judiciary in combating corruption, including initiatives that are in place to deal with these challenges.

Overview According to the Constitution the South African courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.160 Not only does this require other organs of state to “assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness,” but it also explicitly requires that “no person or organ of state may interfere with the functioning of the courts.”161 The acceptance that the court decisions are binding on all citizens and institutions of state was perhaps best displayed when former President Mandela accepted a court judgment against him and in favour of former rugby supremo, (and sometime politician), Louis Luyt. This was an important piece of case law as it showed how the judiciary could exercise oversight over Executive decisions, but politically it exhibited that the Executive was willing to submit to the principle of judicial review.

The Judicial System comprises the following courts as defined by the Constitution (listed in order of authority):

� The Constitutional Court (CC): based in Johannesburg, the CC comprises a President, Deputy President and eight other judges. It is the highest court in all constitutional matters and makes the final decision whether a matter is a constitutional matter or whether an issue is connected with decisions on a constitutional matter. Only the CC may decide disputes between organs of state at the national and provincial levels concerning the constitutional status, powers or functions of any of these organs of state. The CC makes the final decision whether an Act of Parliament, provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court, a High Court, or a court of similar status, before that order has any force.162

� The Supreme Court of Appeal: based in Bloemfontein (the country’s former judicial capital), this court consists of a Chief Justice, a Deputy Chief Justice and a number of judges of appeal determined by an Act of Parliament. This court is also the highest court of appeal except in constitutional matters and focuses its authority on appeals and issues connected with appeals.163

� High Courts: there is one High Court in each judicial district, which may decide on any constitutional matter except those that fall within the ambit of the CC.164

� Magistrates Courts: these courts may decide on any matter determined by Parliament, but a court of a lower status than a High Court may not enquire into or rule on the constitutionality of any legislation or any code of conduct of the President.165 In addition magistrates courts are divided between regional and district courts that have different competencies. In terms of criminal jurisdiction regional courts have jurisdiction in all matters except treason and district courts in all matters except treason, murder and rape. In terms of penal jurisdiction regional courts can impose an imprisonment not exceeding 15 years, a fine not exceeding R300 000 (amount determined by notice in the Government Gazette) and district courts imprisonment not exceeding three years, and a fine not exceeding R60,000 (amount determined by notice in the Government Gazette).166


South Africa 49

� In addition, there are a number of special courts with limited powers and jurisdiction such as small claims courts, sexual offences courts and commercial crimes courts (the latter are discussed in some detail towards the end of this section.)

The President, after consulting the President of the CC and the leaders of parties represented in the National Assembly, appoints the judges of the CC. On the advice of the Judicial Service Commission the President also appoints judges of other courts.167 The Magistrates’ Commission is responsible for the appointment and the removal from office of magistrates. Judges may only be removed from office by impeachment.

In his state of the nation address in February 2005, President Mbeki announced that Judge President of the CC Arthur Chaskalson had asked that his term not be renewed. Mbeki agreed to the request and in March 2005 recommended that Judge Pius Langa – a long-sitting member of the CC and Deputy President of the CC – be appointed as its next head. This has met with the support from a cross-section of political parties and members of the legal fraternity.

Court performance According to a report to Parliament by the Ministry of Justice in 2004, court services were allocated a total of almost R2.5 billion for the financial year 2004/05. This is an increase of 16% on the previous year.168 The number of new criminal cases increased from 750,000 in 2001 to over a million in 2003. During the first quarter of 2004 close on 280,000 new cases were dealt with in the lower courts, with largely the same staff complement.169

Despite this overall increase in productivity, the number of cases on the outstanding roll in the district courts, in particular, has increased substantially during the past five years (from 104,000 in 1999 to 150,000 in 2003). However, the most recent information indicates a decline in the outstanding roll in the district courts, from 149,539 at the end of December 2003 to 139,459 at the end of March 2004. Comparative figures for the regional courts were 43,573 at the end of December 2003 and 44,797 at the end of March 2004.170

According to the Department of Constitutional Developments Business Unit, the comparative statistics for the case-load of various courts are:171

� High Courts (at end December 2003): 1,012 cases;

� Regional courts (at end March 2004): 44,797 cases; and

� District courts (at end March 2004): 139,459 cases.

South Africa has an unacceptably long awaiting-trial prison population, a situation that by and large affects the poorest defendants the worst. Despite attempts to decrease bail terms and provide alternatives to incarceration, too many indigent people spend too long waiting to appear in court. For many young South Africans this experience of being jailed (often with older, hardened inmates who know how to work a corrupt prison system) is the first step into the revolving door between freedom and incarceration.

One of the initiatives taken to tackle this backlog is Saturday court sittings. A joint initiative of the NPA and the Department of Justice (DOJ), it meant that an additional 14,884 cases were dispensed with from February to December 2001.172 The figure rose the following year and 25,570 cases were finalised between January 2002 and March 2003.173 This system is likely to be phased out in 2004/2005, a decision that is “motivated by financial considerations. An amount of R12m was allocated for Saturday courts. The money would was set out to run out in late 2004 and there is even a possibility of overspending.”174 This is clearly an example of a successful pilot project, which the DOJ should look at extending given its success to date (68,000 cases were finalised by Saturday Courts since the start of the initiative in 2001).

Although Saturday courts have assisted with case loads, other initiatives have also contributed including the following:

� case scheduling, which has shifted from the prosecution to the judiciary;


South Africa 50

� the regional courts now only allow two postponement dates, (plea and trial), to avoid unnecessary remands in between;

� at times delays have been due to offenders’ difficulties in obtaining legal Aid. This is being addressed by the roll-out of the Legal Aid Board’s Justice Centres, now operating at 53 sites throughout the country; and

� average court hours have been increased to four hours per day.175

The court system, unlike for example the police service, remains relatively untainted by corruption in the eyes of many South Africans. This may, of course, reflect the fact that South Africa does not posses an army of judges and magistrates and that the contact that many citizens have with the judiciary is at best infrequent, at most fleeting. A 2003 ISS national survey revealed that knowledge of the court system is relatively high, with four out of five South Africans being aware of the location of the nearest Magistrate’s court. Furthermore, half indicated that it would take them less than half an hour to reach the court, though, 12% reported that it would take them between one and two hours. Nearly 60% were of the view that the courts were performing their duties adequately. This proportion increased to 70% in the case of those who had attended court during the past three years. Of those who expressed dissatisfaction, the most common reason (67%) was that matters “drag on for too long”.176

Besides the problem of the long waiting-trial period, (which ultimately must be resolved by dealing with the social causes of crime, as opposed to the construction of more courts), there are a number of other challenges facing the judicial system. The (former) Chair of the of the Parliamentary Portfolio Committee on Justice and Constitutional Development, Johnny de Lange (now Deputy Minister of Justice and Constitutional Development) is on record as saying that:

”The Department of Justice has not reconciled its books since 1959 and had no real accounting system until two years ago. Of the 518 courts under the Department’s jurisdiction, only 30 are computerised and many transactions are not properly recorded”.177

This has, in part, led to a probe into fraud in Magistrate’s courts by the Asset Forfeiture Unit, which is authorised by the President to prosecute, seize and attach property. At least 285 cases of alleged fraud have been referred to the police. The former CEO of Business Against Crime uncovered much of the fraud. He was seconded to the DOJ in 2001 in order to bring its management system in line with business practice.178 These investigations prove that the courts are certainly not immune to corruption and once again point towards poor internal administrative/management procedures that may have allowed graft to go unchecked.

A worrying indicator of the kind of pressure that courts may be under from corrupt individuals are reports of violent intimidation against prosecutors and magistrates. According to a front page report in the Sunday Times, former Justice Minister, Penuell Maduna, received a secret report in February 2004 outlining a countrywide spate of security threats in courts over the past three years. According to the author of the report, Lucas Mlaudzi, a security audit conducted in 2003 revealed a:

”…lack of an effective security structure in the Department to ensure efficient security at the courthouse on a national level, including the houses of judges and magistrates. He said that the state had a Constitutional duty to protect people in the courts”.179

The Chair of the General Bar Council, Norman Arendse, said security had improved at High Courts but the situation at lower courts remained a “cause for concern”.180 Tshifhiwa Maumela, Vice-President of the Judicial Officers Association of South Africa, said that he knew of “magistrates under police guard, including André le Grange [who is hearing the corruption trial of former Western Cape Premier, Peter Marais, and his MEC, David Malatsi, who are alleged to have offered kick-backs in return for party funding for the NNP] because of gang-related cases he handled.”181 Judge Bernard Ngoepe, chairman of the Magistrates Commission and Judge President of the Transvaal, remains positive, however: “The South African judiciary is not under siege. We had a few isolated security-related problems but they are now being properly addressed. No judge or magistrate was forced to pull out of any case because of threats or pressure”.182


South Africa 51

The Sunday Times report also details various acts of intimidation against prosecutors such as ‘contracts’ ranging from R25,000 to R1 million being taken out on prosecutors’ lives and instances where prosecutors were forced off the road at night by accused, who demanded dockets, or another of a prosecutor being stabbed with a syringe containing a poisonous substance in court.183

Of further concern is the fact that magistrates, prosecutors and court clerks in the country's 40 worst-managed courts are being investigated by the “SIU for swindling about R100-million meant mainly for the poor….(this) was part of about R1.5 billion held in trust by the state for people who receive child maintenance through the courts and those who pay bail and traffic fines.”184 Furthermore, a report in the Cape Argus reveals that in 2003 claims totalling R267 million were lodged with the Attorney Fidelity Fund, an entity that repays people who have been swindled by corrupt lawyers. Though not all of the claims will be settled and despite the fact that rogue lawyers still constitute less than 1% of the profession, the “ever increasing figures” are still viewed as disturbingly shameful.185

An initiative designed to—potentially, at least—tackle corruption among judges is the proposal by Parliament’s Justice Committee to:

”create a register in which the judges will have to declare both their financial and business interests, similar to that which is in force for MPs by means of the Judicial Officers Amendment Bill that seek to create mechanisms to maintain oversight of judicial conduct and ethics”.186

When warned that there would be costs associated with the creation of an office to administer the register, the Chairperson of the Committee, Johnny de Lange, said: “if we are serious about the accountability of the judiciary then there are going to be costs.”187

A key area of court performance – although not measurable in terms of statistics- is how the countries judiciary like all the countries insitutions grapples with institutional racism where this exists as well as transformation of the bench. According to Justice Minister Bridgette Mabandla only 2% of judges were black in 1994 and today over a third are black. More importantly, “of the 53 new judges appointed since 1994, 89% are black and the magistracy is nearly 50% black and 30% female.”188 The issue of racism in the judiciary has been the result of public debate since late 2004 when Cape High Court Judge John Hlope accused colleagues on the bench and members of the Cape Bar of racism. This followed shortly after Judge Hlope and Judge Yekiso delivered a judgment in favour of governments medicine pricing regime – with a white judge delivering a dissenting judgement. Many of the claims made by Judge Hlophe have been refuted and some members of the legal fraternity have been surprised that Hlophe has labeled white judges and advocates who supported anti-apartheid activists in the 1980’s in this group. However, the merit of Judge Hlophe’s accusations aside – the issue of race and representivity will require the next President of the Constitutional Courts attention to ensure that the integrity of the judiciary is preserved.

This was underscored by the furore surrounding a statement released by the ANC at its annual anniversary celebrations in Umtata on 08 January 2005. The statement was interpreted as an attack on the countries white judges by the Sunday Times –following remarks that they (white judges) do not see themselves as part of the masses. The opposition DA interpreted this as an attempt to cow the judiciary into submission. The President of the CC Arthur Chaskalson and President Mbeki both later played this down – as not constituting an attack on the judiciary. The positive effect of airing this debate is two-fold: this remains a sticky issue that needs to be discussed in public and the debate has provided some of that space. Secondly, the response from the bar, judiciary, media and others has also been explicit – transformation is necessary, but the constitutional guarantee of independence of the judiciary is not not up for negotiation – a matter that the ANC has not contested.

Specialised Commercial Crimes Court One of the positive responses by the courts to white-collar crime is the creation of the Specialised Commercial Crime Courts. Three of these courts have been set up in the Johannesburg and Pretoria CBD for specialised commercial crime cases (see also the section on the police).


South Africa 52

“The Specialised Commercial Crimes Courts, which have been a remarkable success since there inception, registered more than a 95% conviction rate in 2002. This year (2003) has seen the trend persist, with a current average of more than 5 court hours per day.189

These courts have been established on the collective initiative of the Department of Justice and Constitutional Development, the NPA and the SAPS. This has been matched by support from Business Against Crime, which added financial backing to ensure the success of these initiatives. One of the courts in Johannesburg, for example, occupies rent-free premises donated by Nedbank, which house 125 SAPS Commercial Branch investigators, 25 state advocates/prosecutors and three regional court Magistrates.190 This initiative is in the process of being rolled out in the Western Cape, Eastern Cape and KwaZulu-Natal provinces as well. Monthly steering committee meetings are held with the Judiciary.191

According to Tom Bouwer of Business Against Crime:

”Reliable estimates show that commercial crime siphons off the better part of R40 billion a year from the economy and that while 82% of businesses were probable victims of crime resulting in 200,000 cases of commercial crime annually, only 65,000 were reported to police….before the establishment of the Specialised Commercial Crime Courts, only 6% of all perpetrators were prosecuted compared with 23% being achieved in Pretoria”.192

Civil service The South Africa public sector, remains the largest ‘single’ employer in South Africa. with approximately 1,030,000 employees in its service (this excludes local government employees).193 The focus on corruption in South Africa remains targeted at the public sector, although the law, media and anti-corruption agencies are increasingly also focussing on corruption emanating from the private sector.

Public servants are appointed or promoted by the departments for which they work. The DPSA is responsible for the overall conditions of service for all government employees (such as salary negotiations etc.). The PSC is not directly responsible for employing officials but instead has an oversight role designed to ensure that the DSPA implements the principles of public service as enshrined within the Constitution.

Within the civil service the DPSA is responsible for policy formulation and includes a specialised anti-corruption unit that is responsible for overseeing the implementation of the Public Service Anti-Corruption Strategy. Established in 2001, this unit has a staff of six (a head, four corruption specialists and an administrative assistant). It has recently also taken on the responsibility for aspects of the Government’s work on the New Partnership for Africa’s Development (NEPAD), including the African Peer Review Mechanism.

In the ‘shadows’ of the DPSA, benefiting neither from occupying a 20-storey office block in the centre of Pretoria, nor from the media attention generated by a dynamic Minister (Geraldine Fraser-Moleketi), is the PSC. The PSC is the key constitutional agency responsible for monitoring and evaluating the public sector, as well as promoting the constitutional principles of public administration. Its functions and activities are therefore discussed in detail. In addition to a focus on the PSC, this section also addresses details of the State of the Public Service Report and provides an overview of some of the requirements and rules surrounding disclosure of conflict of interest and gifts amongst civil servants.

In terms of Section 196(4) of the Constitution, the PSC shall:194

� promote the constitutionally-prescribed values and principles governing public administration in the public service;

� investigate, monitor and evaluate the organisation and administration, and the personnel practices, of the public service;

� propose measures to ensure effective and efficient performance within the public service;


South Africa 53

� give directions aimed at ensuring that personnel procedures relating to recruitment, transfers, promotions and dismissals comply with the constitutionally-prescribed values and principles;

� report in respect of its activities and the performance of its functions, including any finding it may make and directions and advice it may give, and provide an evaluation of the extent to which the constitutionally-prescribed values and principles are complied with.

On its own accord or on receipt of any complaint, it shall:

� investigate and evaluate the application of personnel and public administration practices, and report to the relevant Executive authority and legislature;

� investigate grievances of employees in the public service concerning official acts or omissions, and recommend appropriate remedies;

� monitor and investigate adherence to applicable procedures in the public service; and

� advise national and provincial organs of state regarding personnel practices in the public service, including those relating to the recruitment, appointment, transfer, discharge and other aspects of the careers of employees in the public service.

The PSC, which must at all times retain its independent and impartial status, is required by the Constitution to comprise 14 members, five of whom are appointed by the President on the recommendation of the National Assembly, while one member for each of the nine provinces is appointed after nomination by the provinces’ Premiers. The PSC is accountable to the National Assembly, to which it must report at least once a year. It must also report on its activities in provinces to the Provincial Legislatures.

”The members of the Commission were appointed by the President, with effect from 1 January 1999. The commencement of formal operations by the Commission was, however, delayed until 1 July 1999 because of legal difficulties around certain aspects of the Public Service Laws Amendment Act, 1997. On 1 July 1999, the Public Service Laws Amendment Act, 1997 and section 15 (1) of the Public Service Commission Act, 1997, and the abolition of the Commission for Administration Act, 1984, came into effect, making the Commission fully operational”.195

The PSC’s mandate in terms of combating corruption can be summarised as follows:196

� handling of public complaints (an Ombudsman function);

� monitoring and evaluation, including research and investigation and the provision of advice to legislators and the Executive;

� anti-corruption programmes, including corruption-related investigations;

� promoting professional ethical conduct (a preventive measure);

� audits, including investigations of public administration practices such as finances, human resources etc.

The work of the PSC is structured around six key performance areas, of which three are directly relevant to combating corruption:197

� the Chief Directorate: Public Administration Investigations undertakesaudits and investigations into public administration practices;

� the Chief Directorate: Professional Ethics and Human Resource Reviews focuses on corruption prevention and reviews implementation of human resource policies; and

� the Chief Directorate: Governance Monitoring is responsible for promoting good governance and enhancing governance practices.

During the last year for which a report is available (2002/03), the activities of the PSC were organised into three programmes: administration, human resources management


South Africa 54

and labour relations, and good governance and service delivery. The good governance programme “executes the Commission’s mandate through promoting Professional Ethics and Risk Management; conducting of Special Investigations; as well as evaluating and supporting Management and Service Delivery Improvement”.198

According Professor Richard Levin, (former Deputy Director-General of the PSC and since appointed Director-General in the Department of Public Service and Administration), “Corruption remains a problem at all levels of government and the problem of complicity by public officials in acts of fraud and corruption remains a challenge”.199

“This is specifically true in relation to the area of procurement and the management of conflicts of interest. The approach of the Commission is to address corruption proactively and in an integrated manner by focusing on the creation of an ethics management infrastructure. Previous surveys in 2001 (Ethics 2001, Ethics in Practice) reiterated the need to strengthen the ethics management skills of public servants and the ethics management infrastructure as the latter was found to be too basic and therefore potentially ineffective. Many of the elements of an effective ethics infrastructure (code of conduct, fraud prevention plan, risk management plans and consistent financial disclosures) are present in departments but are often generic, inappropriate and poorly supported. The effectiveness of the different elements is often compromised by their failure to operate in an integrated and coordinated manner”.200

Some of the activities that the sub-programme on professional ethics risk and management was involved in 2002/03) include support for the implementation of the national anti-corruption strategy by, among other things:

� developing an audit of anti-corruption capabilities in provincial and national departments in conjunction with the DPSA;

� providing a secretariat for the National Anti-Corruption Forum. The PSC has been under-resourced regarding this task and at times it appears that the Minister for Public Service and Administration drives this process, rather than the PSC (see the section on cross-sectoral initiatives);

� proposing and implementing a national hotline system for the public service. Initially scheduled to be up and running by April 2004, the hotline came into operation on 1 September 2004; and

� researching the acceptance of gifts and favours, as well as comparative analysis of the management of asset registers, conducted by Idasa and funded by the German Gesselschaft fuer Technische Zussamenarbeit (GTZ).

Special investigations were also undertaken in various provinces and at a national level, and a report on blacklisting businesses and individuals was also produced.201

State of the Public Service Report The PSC published its third State of the Public Service Report in 2004, offering a high-level overview of the public service – and essentially also reflects on its progress in the first ten years of democratic rule. The 2005 State of the Public Service Report – provides an overview of some of the challenges facing the Public Service in the ten years ahead.

Both reports are structured around the nine constitutional principles governing public service and administration in South Africa. For purposes of comparison some of the key findings of both report, relevant to this study are reproduced below.

State of the Public Service Report 2004202:

”Principle One: A high standard of professional ethics

� Combating corruption is a priority concern for the Public Service but better implementation of the outstanding elements and improved coordination of the National Strategy is needed.

� Departments also need to improve their processing of cases of professional misconduct, particularly by improving turnaround times.


South Africa 55

� The PSC argues that the minimum anti-corruption capacity for departments must be implemented, that more training on applied ethics be provided and that departments’ own anti-corruption efforts be better integrated with the National Anti Corruption Strategy.

Principle Six: Public administration must be accountable

� The Auditor General plays a major role in building accountability in the public service and produces useful reports that should be used to identify and address areas of weakness.

� Parliamentary Portfolio Committees also play an important oversight role, while the Public Finance Management Act has defined what is required for accountable financial management. PSC research has found that its requirements are exacting and many departments comply only formalistically.

� The PSC proposes the creation of a specialist turnaround capacity to address problems as they arise. Risk management and fraud prevention plans also need more emphasis.

Principle Seven: Transparency must be fostered by providing the public with information

� Legislative bodies play a key role in demanding government report to them on their activities and results, while the Truth and Reconciliation Commission played an important role in providing a space in which its victims could review the apartheid experience.

� Annual Reports are the key mechanism through which government departments achieve transparency. While these have generally improved, there are still tendencies to report on activities rather than impact and not to use plans as the basis against which to compare achievements.

� Annual Reports should be structured so that they report directly against plans and budgets. The human resource information that must be provided in Annual Reports needs to be simplified. Additional mechanisms for transparency should also be adoption and promotion of a Code of Conduct for the Public Service. Adherence to the Code is a condition of service and is a mechanism for dealing with unethical practice, albeit weakly at the moment.

State of the Public Service Report – 2005203:

“Principle One: Professional Ethics

� While a basic ethics infrastructure has been established, its implementation requires attention for it to become fully entrenched and integrated within the organisational culture and ingrained into the ethos of every public servant.

� The Code of Conduct will require further refinement with clear sanctions built in for non-compliance.

� The PSC’s National Anti-Corruption Hotline promotes ethics as misdemeanours can be reported and its usage demonstrates widespread public interest.

� Understanding of the whistle-blowing guidelines and legal framework should be promoted.

Principle Four: Impartial, fair and equitable service delivery

� An assessment of the extent to which the Promotion of Administrative Justice Act (PAJA) 2002 is being implemented shows low awareness resulting in poor implementation of the Act.

Principle Six: Accountability � In terms of financial accountability, the increase in the number of qualified reports is a

source of concern, indicating the challenge of compliance with the Public Finance Management Act, 1999 (as amended).

� The PSC’s management of the Head of Department evaluation process, which brings the highest level of public servants under scrutiny for performance, has contributed to an improved performance ethos in the entire public service.


South Africa 56

Principle Seven: Transparency

� Transparency involves making the workings of government visible so that citizens know what is being done with public resources.

� The quality of annual reports has improved in recent years, although there are still a number of areas of weakness.

� Performance information in annual reports needs to be properly linked to plans and budgets.”

These key findings reflect some of the challenges facing the public service as a whole and the way in which it interacts with other pillars of the NIS.

Financial disclosure compliance Financial disclosure by civil servants remains a problem that requires urgent attention. According to the Public Service Regulations (2001), members of the Senior Management Service and members of the PSC are required to submit annual disclosure forms (on which must be included gifts and hospitality other than that from a family member) to the Minister, who in turn submits copies of these forms to the Chief Directorate of Professional Ethics and Human Resource Reviews. In line with Chapter 3 of the Public Service Regulations, the Director-General keeps a confidential register known as the Register of Designated Employees’ Interests.

The submission of disclosure forms remains relatively lacklustre, as the following table shows:

Table 4: Submission of financial disclosure forms204

Year 1999/2000

%

2000/2001

%

2001/2002

%

2002/2003

%

National 61 72 88 55

Provincial 63 59 75 33

TOTAL 62 67 82 44

Source: Levin, Richard M., Financial Disclosures and Conflict of Interest: The case for strengthening and amending the current regulatory regime. Paper presented at the Senior Management Services Conference. 15-17 September 2003

There are clearly still too many officials flouting the rules and the civil service should be developing clear sanctions mechanisms to ensure that disclosure forms are submitted on time.

One of the reasons for this lack of compliance may be the fact that the PSC has not yet enforced the code by charging employees with misconduct for failure to submit the forms. As the system has been in place for a number of years it could be argued that senior managers should now be sufficiently familiar with the system for those who fail to comply to be charged. Thus far, few investigations of suspicious disclosures have taken place—for senior officials to not simply to regard this as a post-box exercise, it is necessary that more capacity is allocated than the existing single staff member responsibile for this function.

Levin argues that there are also inherent problems in the existing regulatory framework, anexample of which:

“can be found in the provisions around acceptance of gifts. Section C.5.3 [of the Public Service Regulations] stipulates that an employee must not in her/his official capacity solicit gifts or benefits nor accept any benefits or gifts when they are offered as this may be


South Africa 57

construed as bribes. On the other hand, in terms of Chapter 3 of the amended regulations [Public Service Regulations, 2001], members of the SMS [Senior Management services] are required to disclose gifts valued at over R350. Moreover, there are also problems of definition and interpretation, as the code does not clearly define what a gift is”.205

Apart from these problems the civil service, like the Executive and Parliament, has no code governing post-public service employment. Unsubstantiated allegations often surface that senior officials who have left the public service have found employment in corporations that have been awarded substantial tenders by their former departments. An effective regulation would ensure that rumours are tested and this practice, if it does take place, could be effectively dealt with.

Media reports indicate that the DPSA is now considering drafting such regulations. This comes in the wake of criticism - from Cosatu in particular - following revelations that Andile Ngcaba, former Director-General in the Department of Communications is heading up a consortium that is set to buy a stake in Telkom, the fixed line telephone monopoly that is still largely state owned. The deal will in turn be financed by the Public Servants Pension Company – PIC. Cosatu charged that without a law governing post-employment restrictions: “…there will be a serious risk that (they) will at best have a serious conflict of interests and, at worst, be involved in outright corruption by using their political contacts to enrich themselves.” 206The ANC however has declared that it was within the rights of former civil servants and politicians to seize the business opportunities presented to them. The Ngcaba/Telkom deal exemplifies the need for public service to act quickly and provide policy that will place a stopper in the revolving door.

Police and prosecutors This section assesses the powers and functions of the SAPS andprosecutors (the NPA) as well as their role in combating corruption within their own ranks and in the broader society. The Independent Complaints Directorate (ICD) is also briefly discussed as the body tasked with monitoring corruption within the SAPS.

South African Police Service According to the Constitution the objects of the SAPS are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property and to uphold and enforce the law.207

The Constitution (section 207) makes provision for the appointment of the National Police Commissioner, by the President, to control and manage the national police service, and provincial commissioners to oversee policing in the provinces. In terms of section 207(2) of the Constitution, the National Police Commissioner exercises control over and manages the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing. Accordingly, the Commissioner is subject to the South African Police Service Act No. 68 of 1995 and the Amendment Act No. 83 of 1998 and takes direction from the Minister of Safety and Security. In addition, the Constitution provides for the establishment of a police civilian secretariat under the direction of the Minister of Safety and Security.208

The SAPS has a key role in the investigation and prosecution of corruption in South Africa. It is by far the largest of all the agencies that are tasked with combating corruption, although corruption is proportionally one of its smallest focus areas. The SAPS has over 132,000 members (as at 31 March 2004) and is allocated a budget through Parliament by the Department of Safety and Security of over R20 billion (2004/05).209

The SAPS is involved in specialised efforts to root out commercial crime, such as through the Commercial Crimes Court. However, the bulk of its anti-corruption-related work is undertaken through investigations by components of the Directive Services i.e. Organised Crime, General Investigations and the Commercial Branch, depending on the nature and extent of the corruption. An organised crime and corruption desk is also in operation within crime intelligence.


South Africa 58

According to the SAPS:

”The Commercial Branch of the SAPS is responsible for investigating mainly fraud, forgery and theft (mostly theft of trust money or funds that have been manipulated to the extent that the services of a chartered accountant are required). In addition to these crimes, the Commercial Branch is responsible for policing 56 Acts, which include, among others:

� Companies Act (No 61 of 1973);

� Closed Corporations Act (No 69 of 1984);

� Insolvency Act (No 24 of 1936);

� Merchandise Marks Act, (No 17 of 1941);

� Counterfeit Goods Act (No 37 of 1997);

� Banks Act (No 94 of 1990);

� South African Reserve Bank Act (Act No 90 of 1989).

The SARB Act (No 90, 1989) deals with counterfeit currency and the investigation of corruption in State departments and the private sector”.210

The Commercial Branch was restructured in 2002, which entailed closing down 71 units and establishing 17 new Commercial Branches countrywide, with an improved mandate.211 According to statistics released in 2003 Commercial crime contributes 2.1% to South Africa's serious crime statistics212. The most recent SAPS statistics available reveal that this is on decrease falling by 5.7% between 2001/2002 and 2002/2003 and a further 2.6% in the 2003/2004 financial year213. It is now at its lowest level (120.4 cases per 100,000 of the population) since 1994/1995, when it stood at a ratio of 162.5214

Table 5 (below), as reflected in the SAPS report (2003/04) reflects the total number of arrests and convictions for the period 1 April 2003 to 31 March 2004. The arrest and conviction figures include cases reported previously and not only those reported in the specified period. It is worth noting that of the 292 corruption cases reported, only five resulted in a conviction (a tiny 1,7% conviction rate), which may once again show the shortcomings in applying the now-repealed Corruption Act (1992).

Table 5: Commercial crime cases

Value First appearance/ arrest Convictions

Description of crime

Num

ber o

f cas

es re

port

ed

Actual Potential

SA c

itize

n

Not

a S

A

citiz

en

Cas

es

Cou

nts

Internet fraud 358 R47,272,178 R44,211,185 41 5 7 280

Counterfeit credit cards 124 R3,926,767 R1,989,583 40 11 11 21

Stolen cards 372 R145,120,925 R4,269,614 125 10 38 259

Other cards 340 R11,737,871 R2,939,954 32 4 24 193

Offences in terms of the Prevention of Counterfeiting of Currency Act, 1965

117 R2,446,918 R3,169,726 26 10 15 16

Offences in terms of the South African Reserve Bank Act, 1989 204 R28,867,385 R322,751 54 6 33 102

Stolen cheques 1 654 R215,351,111 R72,662,637 269 16 130 364

Cloned cheques 1 031 R46,632,667 R31,516,184 94 8 44 51


South Africa 59

419 scams (advanced fee fraud) 132 R1,303,521,480 R70,363,508 1 73 14 2

Black dollar scams 37 R871,683 R27,083,104 18 24 4 1

Kite flying 36 R6,470,625 R23,208,693 10 0 27 411

Other fraud 5 213 R1,525,946,012 R1,882,519,428 1662 51 990 8,172

Theft 867 R152,524,399 R23,293,923 253 13 188 1151

Forgery and uttering 562 R259,769,929 R74,299,437 145 5 75 150

Offences in terms of the Corruption Act, 1992 292 R75,038,354 R464,573,926 93 0 5 9

Offences in terms of the Prevention of Organised Crime Act, 1998 1 R0 R900,000 0 0 0 0

Offences in terms of the Exchange Control Ammendment of Taxation Laws Act, 2003

23 R10,553,194 R8,053,796 3 0 2 2

Offences in terms of the Insolvency Act, 1936 40 R40,912,755 R268,215 14 0 8 13

Offences in terms of the Companies Act, 1973 43 R29,235,921 R980,678 2 0 0 0

Offences in terms of the Close Corporations Act, 1984 12 R7,552,013 R3,493 0 0 0 0

Offences in terms of Usury Act, 1969 29 R225,759 R63,001 12 0 2 14

Offences in terms of the Magistrate’s Courts Act, 1994 21 R186,645 R0 2 0 1 1

Offences in terms of the Merchandise Marks Act, 1941 4 R0 R1,000 2 0 3 1

Offences in terms of the Counterfeit Goods Act, 1997 548 R130,716,868 R40,460,953 56 14 15 690

Other statutes 260 R27,340,600 R109,634 75 1 67 1034

Total 12 320 R4,072,222,059 R2,777,262,422 3,059 251 1,703 13,100

Source: SAPS Annual Report 2003/04, Pretoria, 2004.

The South African security apparatus (defence, intelligence and police) were perhaps the sector that most required reform after the end of apartheid rule in 1994. Apart from the brutal manner in which the security forces implemented apartheid policies, the lack of civilian oversight and transparency made them particularly vulnerable to corrupt activity from within. According to Transparency International’s 2003 Global Corruption Barometer, if South Africans had a magic wand the corruption they would most want to wish away was that in the SAPS. In the vast majority of countries surveyed by the same report, political corruption was seen as the top priority for the ‘magic wand’.215 The need to address corruption within the SAPS is related to both its relatively high incidence and a need for urgency in dealing with this issue given the high rate of violent crime in South Africa: corruption undermines the delivery of service by the police. It is no doubt compounded by the fact that many members of the public feel uniquely hard done by when those individuals who should be upholding the law are themselves seen to be breaking it. This does paint a negative picture of the SAPS although many of its members are involved in the investigation and prosecution of corruption related crimes. However, as Table 6 indicates, there has been a general upward trend in arrests and convictions of SAPS members for corruption-related offences.

Table 6: Corruption within the SAPS 1996–2001

Year Number of enquiries received

Number of arrests/charges

Arrests as a % of enquiries received

Number of convictions

Convictions as a % of arrests

1996 2300 249 11% 30 12%


South Africa 60

1997 3108 429 14% 78 18%

1998 3779 475 13% 128 27%

1999 4618 844 18% 147 17%

2000 6974 1048 15% 193 18%

2001 4275 592 14% 138 23%

Source: SAPS Annual Report, 01 April–31 March 2002/216 Percentage values included by author.

One approach to dealing with corruption in the SAPS is the Police Service Integrity Strategy, which has at its main goal enhancing levels of integrity in the SAPS.

“The Strategy focuses on addressing corruption in the Service. It is essential to establish and maintain a management information system to successfully address service integrity in the SAPS. This system will be implemented within the context of the Strategy. The Strategy was recently revised to ensure that initiatives are not undertaken in a fragmented manner, thereby ensuring coordination between the various role-players in the SAPS. The Fraud Prevention Plan was also included in the Service Integrity Strategy”. 217

The Strategy has been rationalised into six tiers on which its development and implementation are to be based. These tiers are as follows:218

Regulatory development The focus of this tier is to equip the SAPS with legal mechanisms to address corruption. These will include various legal and policy instruments such as the United Nations Convention Against Corruption and the SADC Protocol Against Corruption.

Control and verification of services This tier will address the management processes, including functional processes and procedures relating to, for instance, physical and information resources, in the SAPS. The verification of the integrity of members of the SAPS (including current SAPS members and recruits) will be included in this tier.

Disciplinary action This tier concerns complaints against members of the SAPS, disciplinary investigations and hearings and the restoration of integrity through the dismissal of offenders. A database will be created to assist the SAPS management with the correct placement of police officials to enhance integrity in the SAPS.

Criminal investigations This tier will focus on the investigation of criminal cases against SAPS members and the prosecution of SAPS members in criminal cases.

Intelligence Gathering reliable intelligence in respect of corruption and potentially corrupt activities will form part of this tier, which is closely linked to risks relating to corruption in the SAPS. Such risks will be taken into account during intelligence tasking and gathering.

Preventive partnerships This tier concerns the establishment and development of projects in the SAPS and of external partnerships with key role-players in the community and private sector. Refining methods and procedures in the SAPS to prevent corruption in identified areas of police functioning will be included.

Furthermore, the six tiers must be in line with the following aims:

� the prevention of corruption;


South Africa 61

� the detection of alleged cases of corruption;

� the investigation of cases of corruption; and

� the implementation of restorative actions to deal with possible shortcomings which may have resulted in, or contributed to, corruption.

According to latest reports (for the period 1 April 2002 to 31 March 2003), “altogether 872 police members were suspended as a result of their alleged involvement in corruption. Of these police members, 833 were suspended without pay and 39 were suspended with pay”.219 The total number of members suspended represents 0.66% of all SAPS members (of a total population of 132,000).

Of the alleged offences that members were charged with, corruption was the most frequent (1,251), followed by fraud/theft (696), defeating the ends of justice (293), assisting escapees (90) and bribery/extortion (40). The largest number of the criminal cases are still pending (704), with 252 guilty convictions recorded. In 225 cases the Directorate of Public Prosecutions declined to prosecute, 100 cases were withdrawn and 39 defendants were found not guilty.220

The Police Service Integrity Strategy aside, it was surprising to many observers that the SAPS chose to close down its internal anti-corruption unit in January 2003. The unit was created in 1995 and managed to achieve an increase of 600% in the arrest and conviction of corrupt officials. However, as far back as 2000 moves were afoot that eventually resulted in the closure of four of the nine provincial offices.221 The official reason given for closing the unit and amalgamating it with the Organised Crime Unit was that this was part of an overall process of restructuring specialised units within the SAPS.

The decision to move most of the members to the Organised Crime Unit was questioned by many at the time, as some members of the Anti-Corruption Unit were investigating the Organised Crime Unit itself. This makes their job particularly difficult, potentially putting them at risk in the workplace. Some of the reasons given were that the Anti-Corruption Unit was not able to transform itself sufficiently, which does not appear to be an adequate reason given that similar structures have gradually been changed throughout the public and private sector. Another reason alluded to—but unproven—is that the integrity of the Unit may have been breached. Whatever the reason, the decision leaves the SAPS in a vulnerable position as good practice elsewhere has shown that a police service can benefit from a well trained and well equipped internal reporting point. An alternative favoured by many is to locate a dedicated anti-corruption unit outside of the SAPS, possibly with the ICD.

ICD The Independent Complaints Directorate ”an independent statutory body, established in terms of Section 50(1)(a) of Chapter 10 of the South African Police Services Act no 68 of 1995. Its principal function (derived from Section 222 of the Interim Constitution) is to ensure that complaints in respect of misconduct allegedly committed by members of the SAPS are investigated in an effective and efficient manner.222

The ICD is tasked with investigating the following complaints:223

� deaths in police custody and as a result of police action;

� misconduct (infractions of disciplinary regulations, code of conduct etc);

� criminal offences (attempted murder, robbery, assault, theft etc);

� corruption (bribery, organised crime etc).

At present the ICD does not have the resources nor a clear mandate to investigate all forms of police corruption. However, as long as South Africa continues to opt for the multi-agency approach to combating corruption, the ICD would probably be the best point in which to locate any possible police anti-corruption unit.

Among the spending priorities for 2004/2005, the head of the ICD, Advocate Karen McKenzie, foresees the ICD handling an increased number of corruption cases (apart from those already referred to it), as well as the establishment of an anti-corruption command


South Africa 62

to deal specifically with corruption.224 At the time of writing this report the powers and functions were as yet not yet made public, with an official from Scotland Yard seconded to the ICD to assist with this.

National Prosecuting Authority In the Transparency International Integrity System, the police and prosecutors are located within one ‘pillar’. It is therefore pertinent to discuss the activities of the prosecution service at this point.

The Constitution makes provision for a single, national prosecuting authority in the Republic, structured in terms of an Act of Parliament, and consisting of:225

� A National Director of Public Prosecutions; and

� Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament.

The NDPP is the Head of the NPA, which was established by an Act of Parliament on 1 August 1998. The Constitution guarantees the independence of members of the NPA, which is South Africa’s first centralised prosecuting authority. The President appoints the Head of the NPA and although s/he reports to Parliament, s/he is accountable to the Minister of Justice.

The NPA has the power to institute criminal proceedings on behalf of the state and to carry out any necessary functions incidental to instituting criminal proceedings. Furthermore, the Constitution states that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. The National Prosecuting Authority Act No. 39 of 1998 states that “a member of the prosecuting authority shall serve impartially and exercise, carry out his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.”226

The NPA consist of the following distinct units:

� the National Prosecuting Service (NPS);

� the Directorate of Special Operations (DSO);

� the Asset Forfeiture Unit (AFU);

� Corporate Services; and

� Support Services (encompassing the Specialised Commercial Crimes Unit (SCCU), Witness Protection Unit, Sexual Offences and Community Affairs Unit, Priority Crimes Litigation Unit and Crime Information Collection Unit).


South Africa 63

Figure 4: The NPA

The head of each unit reports directly to the NDPP, including those listed under Support Services. The job of the NDPP is a powerful one as s/he can veto investigations and is the ultimate interlocutor between the Executive and the NPA. The first NDPP, Bulelani Ngcuka, resigned in July 2004 after almost six years of successful tenure as the head of an organisation he helped shape into a credible organisation with the capacity and political will to effectively tackle corruption and other forms of organised crime. In an interview with the Financial Mail shortly after announcing his resignation, Ngcuka notes that “A politically-independent director of public prosecutions is wishful thinking”. He Ngcuka argues that what is needed is someone with the support of the ruling party but with objectivity in taking decisions:

”When we started with asset forfeiture we suffered a number of setbacks because of loopholes in the legislation. The law needed to be changed. Parliament did so in the shortest time it has yet taken to pass an amendment. That happened because I was able to explain to the leadership and political parties, even the opposition, why it was necessary. They trusted me and that facilitated communication. A second reason is the scramble for budget. If nobody knows you, you get nothing. So it is very important that you have somebody in whom the ruling party has confidence. Remember, this position is quasi-judicial; it straddles the line between the Executive and the judicial. The Executive has a say, because at the end of the day it is the Executive, not the judiciary, that must account for the crime rate and answer to the population.”227

Following Ngcuka’s resignation President Mbeki appointed Adv. Silas Ramaite as acting head of the NPA. In February 2005 Adv. Vusi Pikoli was confirmed by President Mbeki as head new head of the NPA. Pikoli, former Director-General in the Department of Justice, is regarded as a capable manager and has a good understanding of the workings of the criminal justice sector – which will be required to steer the NPA and its various agencies during the next few years.

As the Scorpions and AFU are more directly associated with anti-corruption responsibilities, they receive attention in the section on anti-corruption agencies, later in this report. In order to better understand the workings of the NPA this section looks at two of its units, namely the SCCU(part of Supplementary Services) and the NPS.

National Prosecuting Authority

Asset Forfeiture Unit

National Prosecuting Service

Directorate of Special Operations

Corporate Services

Support Services

� Witness Protection Unit

� Special Commercial Crimes Unit

� Crime Information Collection Unit

� Priority Crimes Litigation Unit

� Sexual Offences and Community Affairs Unit


South Africa 64

The Special Commercial Crimes Unit The SCCU forms part of the NPA and was established on 1 August 1999 as a pilot project to combat commercial crime (white-collar crime). The SCCU operates in both Johannesburg and Pretoria (and from there it has further reach into the Limpopo and Mpumalanga provinces).228 The most-recently added offices are in Durban and Port Elizabeth. However, according to a report in Parliament by the NPA on 18 June 2004, they have not been able to open a planned office in Cape Town due to a lack of funding. Furthermore, the head of the SCCU reported in Parliament that all the offices are struggling with a very large workload and are in need of greater capacity in terms of personnel.

The mandate of the SCCU is to accept matters for investigation and prosecution emanating from the SAPS Commercial Branches in Johannesburg and Pretoria. The SCCU combines the efforts of prosecutors and investigators to ensure speedy investigation and finalisation of trials. Since the establishment of the SCCU in Pretoria, there has been an increase in the conviction rate from 86.6% to 96.2%. The focus of the SCCU has also broadened to deal with all people, including lawyers, police officials, public office bearers or other government officials. The relative success of the SCCU, coupled with the scale of white-collar crime in South Africa, appears to support a need for more investment in the work of these prosecutors by the State and the private sector, particularly given the fact that plans to open an office in Cape Town were shelved due to resource constraints.

National Prosecuting Services The overall responsibility of the NPS is to co-ordinate and assist the traditional prosecuting entities, i.e. the offices of the Directors of Public Prosecutions and the lower court prosecutors. The unit comprises two divisions, namely, Policy and Representations and Court Management, and is responsible for a number of specialist functions.

”The objectives of the Policy and Representations Division are to develop and coordinate policy for the prosecution service and to deal with representations made to the National Director by the public or parties. The objectives of the Court Management Division are to monitor and manage the performance of prosecutors, to promote the quality of professional work, professional conduct and discipline and to identify training needs. Specialist Functions of the unit include providing support services for Directors of Public Prosecutions in matters pertaining to International Cooperation (Extradition and Mutual Legal Assistance) and in Constitutional Matters and Litigation. International Cooperation also includes the development/negotiating of Treaties in conjunction with relevant State departments”.229

The Internal Management Unit (IMU)of the NPA is tasked with reviewing its organisational system. It was recently embarrassingly in the limelight when the Scorpions suspended its human resources department for alleged corruption. According to the IMU’s Head, Dipuo Mvelase, it takes a three pronged approach to corruption: prevention, public education and enforcement. The main purpose of prevention is to protect the organisation from outside corrupt influences.230 She elaborates: “ It would therefore be important to look critically at systems within the organisation and determine where there are vulnerabilities, especially considering the sensitive nature of its work. If there are weaknesses, someone will find a way to exploit it”.231 The IMU has six staff members, two of whom are investigators. It therefore has limited capacity to undertake its work. It does, however, fulfil a very important function, particularly given the high-profile nature of the anti-corruption work undertaken by the NPA and units such as the DSO and AFU.

Public procurement Public sector procurement is estimated to be worth approximately R180 billion a year (at all three levels of government). As this is the nexus between the public and private sectors, it is also one of the areas most vulnerable to corruption. Equally, however, public procurement is necessary to enable the public service to deliver on its developmental mandate to the South African people (be that in terms of building houses, constructing


South Africa 65

bridges or providing schools with textbooks). At the same time, public procurement was identified by government as a driver for black economic empowerment, particularly for small- and medium-sized entrepreneurs. It is therefore essential to ensure that the effect of corruption in this particularly vulnerable area is mitigated.

South Africa has both provincial tender boards and a national State Tender Board, which were constituted in terms of the State Tender Board Act of 1968 (Act 86) as amended in 1971, 1988 and 2003. The final amendment essentially saw all provincial tender boards disbanded and all indications are that the system will be phased out in 2005 and replaced by the supply chain management framework discussed below. One of the criticisms of the tender board system was that the boards acted too autonomously (particularly at provincial level), often disregarding departments’ recommendations, which they had the power to do.

According to the State Tender Board Act (Act 86 of 1968), the State Tender Board shall consist of not less than 16 and not more than 20 members, to be appointed by the Minister of Finance, of whom at least half shall be officers or employees (five is the required quorum for meetings). The Minister designates any member of the board as Chairperson and individuals can only be members of the board for up to three years.

The government and Treasury have been involved in a long process of assessing the existing framework. One of the primary shortcomings of the tender board system has been that it placed the responsibility for public procurement in the hands of provincial and national tender boards, centralising this function. This is the opposite of the new supply chain management framework, introduced in the Government Gazette on 5 December 2004, which decentralises this function into the hands of accounting officers in departments/councils within the different tiers of government.

The Constitution provides the basis for procurement by determining that:

”When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods and services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective”.232

Public procurement reform was already under discussion as far back as 1997 when a Green Paper on the subject was produced. However, it took until November 2000 (following a number of detailed reports by the Treasury) before a memorandum was placed before Cabinet proposing certain changes to the government’s procurement system. Cabinet approved the following at that time:

� Extension of the pillars of public procurement (provided for in the Constitution) to include the concept of ‘equity,’ linked to black economic empowerment (discussed further below).

� Mandating the Minister of Finance to issue general procurement guidelines, including the criteria of black economic empowerment, capacity building, training and job creation.

� Phasing out the various national and provincial tender boards and offices.

� Establishment of a common service provider on a cost recovery basis.

� Implementation of a pilot programme of procurement reform in four national departments.

� It was clear that the need for a White Paper on procurement reform superseded these decisions. This meant that instead of enacting new legislation, a framework should be developed by the national Treasury in line with the provisions of the Public Finance Management Act (and later the Municipal Finance Management Act).233

In 2001 a further Joint Comprehensive Procurement Assessment Report identified a range of issues that required resolution. These included the following governance-related issues that pointed to both the need for an overhaul in the awarding of tenders and the challenges that the new procurement framework is likely to face.234


South Africa 66

� insufficient planning and linking of entities to budgets;

� lack of uniform bidding and other procedures across the public sector;

� conflicts of interest due to the composition of tender bodies;

� consultants not being selected in a systematic, competitive manner;

� flaws in the awarding of tenders, particularly corruption;

� insufficient training of staff (a key factor); and

� the procurement processes being too rule-driven.

The introduction of the Supply Chain Management Framework (SCMF) on 5 December 2003 by the Treasury could signal a real shift in an area of public sector activity that is particularly vulnerable to corruption. According to Mr. Henry Malinga, the Director of Supply Chain Management in the Treasury, this new policy can be described as: “a function that ensures that goods and services are delivered to the right place, in the right quantity, with the right quality, at the right cost, at the right time.”235 Essentially this will mean that procurement (with the exception of strategic procurement, such as arms) will be handled from the first point of demand to the final point of supply. Accounting officers in various departments will be responsible for overseeing this process as part of the drive to devolve many of these responsibilities to the responsible authorities. There is, however, a need to ensure the uniform application of this policy in future to cover all areas of procurement.

Treasury documentation states that the SCMF:

It serves as a formal requirement to accounting officers/authorities to ensure the implementation of the supply chain management process as an integral part of their financial systems.

� It also requires accounting officers/authorities to develop and implement an effective and efficient supply chain management system and to establish a separate supply chain management unit within the chief financial officer’s structure of his/her department/institution to deal with supply chain management. The Framework deals with various aspects of supply chain management.

� The Regulations also empowers the National Treasury to issue practice notes that address relevant supply chain management topics with a view to ensuring uniform minimum norms and standards within government.

� The National Treasury has issued practice notes that relate to, among others, general conditions of contract and standardized bidding documents, appointment of consultants, code of conduct for supply chain management practitioners and threshold values for the invitation of price quotations and competitive bids.

� The National Treasury will continue to facilitate the arrangement of transversal term contracts for the procurement of goods/services required by more than one client department, provided that the arrangement of such contracts is both cost-effective and in national interest. National departments and provincial departments through their relevant treasury may opt to participate in the transversal contracts facilitated by the National Treasury. Should a client department opt to participate in any such contract, no similar contracts may be arranged by any of the participating departments during the tenure of such contract.

� Policy outcomes that determine the success of Government’s procurement reforms should be monitored by the various treasuries and regular reports in this regard should be forwarded to the relevant Executive authorities.

� An amendment to Regulations issued in terms of the State Tender Board Act, 1968, (Act No. 86 of 1968), has also been promulgated in the Government


South Africa 67

Gazette. Where before, the Regulations required that procurement of all goods and services must be done only through the State Tender Board, the amended Regulations now allow for accounting officers of national departments to procure goods and services either through the State Tender Board or alternatively in terms of the Public Finance Management Act, No. 1 of 1999 (as amended by Act 29 of 1999).

� The promulgated amendment is in line with the intention of the Public Finance Management Act which empowers accounting officers to manage their departments and accept full responsibility and accountability for all expenditures incurred by his/her department.

� The amendment to the State Tender Board Regulation has been promulgated in terms of Section 13 of the State Tender Board Act, No. 86 of 1968 in the Government Gazette Number 25766 dated 5 December 2003 as Government Notice 7836.

� The promulgation of the above-mentioned Regulations allows national departments an option to arrange their ad hoc tenders through the State Tender Board, or alternatively in terms of the Public Finance Management Act. This “dual system” will be available to accounting officers at national level until such time that the State Tender Board Act is repealed.

� At provincial level the various tender board acts will also be ultimately repealed and the various provincial tender boards will be dismantled. In some provinces this phased process has already commenced and certain provincial tender boards have already been dismantled”. 236

The process of implementing this framework is unlikely to be easy and the Treasury has established a Supply Chain Management Unit to assist in this. However, every accounting officer will ultimately be responsible for determining a detailed implementation strategy. Accounting officers are appointed in terms of the Public Finance Management Act and fall under the code of conduct for public servants. Should there be a challenge to the decisions of the accounting officer, it is possible that an ombudsman or a structure similar to a secretariat may be established to adjudicate such issues quickly.237 There was, however, no clear policy decision on this at the time of writing this report.

Ensuring that this model of decentralisation of functions is effective will require careful monitoring by the Treasury and scrutiny by the office of the AGSA, which is not likely to be an easy task. The process will also require training and education among senior managers and accounting officers to ensure that they are aware what the new functions and responsibilities entail.

Preferential procurement As mentioned earlier, it was already noted in the mid-1990s that procurement reform would have to be geared towards addressing both governance issues and apartheid-created socio-economic imbalances. The major, limited exception to competitive bidding is a policy designed to promote black economic empowerment and that of other groups discriminated against under apartheid. The Preferential Procurement Policy Framework Act No. 5 of 2000 was passed to give effect to section 217(3) of the Constitution, which calls for the enactment of national legislation to regulate the procurement system. Due to South Africa’s history, the Act prescribes a preferential procurement policy, which is implemented by following a preference point system. The Act outlines the preference point system in the following manner:

(i) for contracts with a Rand value above a prescribed amount a maximum of 10 points may be allocated for specific goals provided that the lowest acceptable tender scores 90 points for price;

(ii) for contracts with a Rand value equal to or below a prescribed amount a maximum of 20 points may be allocated for specific goals provided that the lowest acceptable tender scores 80 points for price. The specific goals mentioned may include—(i) contracting with persons, or categories of persons,


South Africa 68

historically disadvantaged by unfair discrimination on the basis of race, gender or disability.

The application of the existing Preferential Procurement Policy Framework has been unequal and draft legislation is now under review that will establish a Black Economic Empowerment (BEE) Bill. It is hoped this will deal with a number of key concerns linked to the difficulty that emerging small- and medium-sized black entrepreneurs experience in gaining access to public procurement (as opposed to the spoils being awarded to a group of existing ‘mega-wealthy’ black capitalists). Another contentious issue that the BEE Bill needs to address is that of ‘fronting’, in which black partners are sought by established white capital to ensure that they gain access to public contracts. This form of fraud—perpetrated by both parties—has the potential to reduce the current ‘empowerment’ policy to a mere bureaucratic hurdle for businesses and individuals intent on subverting it. This does little for the cause of ensuring long-term equity of ownership in the economy as envisaged in these policies—and in the Constitution.

Public Protector (Ombudsman) The Public Protector is one of the institutions established in terms of Chapter 9 of the Constitution to strengthen constitutional democracy.238 The Public Protector is independent, subject only to the Constitution and the law, and is accountable to the National Assembly. The Public Protector has the power, as regulated by national legislation, to:239

� investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;

� report on that conduct; and

� take appropriate remedial action.

The Constitution also states that the Public Protector may not investigate court decisions and must be accessible to all persons and communities. Any report issued by the Public Protector must be open to the public unless exceptional circumstances, to be determined in terms of national legislation, require that a report is kept confidential. The Public Protector is appointed for a non-renewable period of seven years and may only be removed on very narrow grounds, with two thirds of the National Assembly supporting such a motion. The President appoints the Public Protector upon the recommendation of the National Assembly and the person appointed is required to have proven legal knowledge (such as a degree in law).

The Public Protectors Act (23 of 1994) states that any matter in respect of which the Public Protector has jurisdiction may be reported to the Public Protector by any person, by means of a written or oral declaration under oath or after having made an affirmation, specifying:240

� the nature of the matter in question;

� the grounds on which he or she feels that an investigation is necessary;

� all other relevant information known to him or her; or

� by such other means as the Public Protector may allow with a view to making his or her office accessible to all persons.

This means any citizen (with the exception of public officials in certain circumstances) may report a matter to the Public Protector, who is then bound to investigate the matter.

The Public Protector may refuse to investigate a matter reported to him or her, if the person ostensibly prejudiced in the matter is:241

� “An officer or employee in the service of the State or is a person to whom the provisions of the Public Service Act, 1994 (Proclamation No. 103 of 1994), are applicable and has, in connection with such matter, not taken all reasonable


South Africa 69

steps to exhaust the remedies conferred upon him or her in terms of the said Public Service Act, 1994; or

� Prejudiced by an act or omission referred to in subsection (4)(d) or section 112(l)(a)(v) of the Constitution and has not taken all reasonable steps to exhaust his or her legal remedies in connection with such matter”.

In addition to the powers and functions assigned to the Public Protector by section 112 of the Constitution, he or she shall be competent to investigate, on his or her own initiative or on receipt of a complaint, any alleged:242

� “Maladministration in connection with the affairs of any institution in which the State is the majority or controlling shareholder or of any public entity as defined in section 1 of the Reporting by Public Entities Act, 1992 (Act No. 93 of 1992);

� Abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function;

� Improper or unlawful enrichment or receipt of any improper advantage, or promise of such enrichment or advantage, by a person as a result of an act or omission in connection with the affairs of a public institution; or

� Act or omission by a person in the employ of an institution or entity contemplated in paragraph (a), which results in unlawful or improper prejudice to any other person.

There have been a number of instances where members of the public, including members of the Opposition, have claimed that a public official has not declared all assets or interests in the prescribed register. These provisions give the Public Protector the power to investigate such allegations, particularly where the gift, asset or interest could lead to a conflict of interest and, ultimately, to corruption.

A Public Protector is also appointed in every province. Parliament is mandated to appoint a Deputy Public Protector, who will essentially function as CEO. The current Public Protector raised a concern with Parliament that it had not appointed a Deputy by June 2004, despite the fact that such an appointment was budgeted for.

Mr Lawrence Mushwana replaced Advocate Selby Baqwa as the Public Protector in October 2002. The Public Protector’s office, also involved in the JIT report on the arms deal, did not suffer the same level of negative public fall-out and criticism as the AGSA. However, the unenviable task it has of investigating senior officials, combined with its seven-year term of office, meant that Parliament had to advertise twice to ensure that it was able to select a suitable candidate for the position. Mushwanas’ predecessor, Selby Baqwa, often described the office as a ‘lonely’ position, as the incumbent does not—and should not—have many natural political allies.

The headquarters or national office is in Pretoria and, for the interim, it also serves as a provincial office for the Gauteng Province. In addition, there is a provincial office in each of the eight other provinces. The combined national and provincial staff is 154 and the budget in the financial year 2004/05 is over R43 million.243

However, the Public Protector’s office has had capacity problems of its own, according to the 2003 report to Parliament.244 The Department of Public Service and Administration recommended that the Public Protector create additional posts to clear its backlogs, mainly created by the increased workload since the establishment of provincial offices.245 This had as not yet happened as senior vacancies are still being filled. Cases carried over to April 2003 from the previous year numbered 7,520246 The year ending 31 March 2004 has seen a significant a total of 8,869 cases carried forward following the finalisation of 15,496 cases in the year under review (an additional 17 295 cases were received during the year)247. What is clear is that capacity constraints may still present a problem given the large volume of new cases the office of the Public Protector receives on an annual basis.

All investigations are undertaken in terms of the Public Protector Act, which stipulates that only the following may be investigated: maladministration, abuse of power, improper


South Africa 70

conduct, and an act or omission by an employee in designated institutions that results in unlawful or improper prejudice to any other person. No figures are available indicating the breakdown of cases according to these criteria.

According to Mamiki Mosheshe of the Office of the Public Protector:

”The delays in finalising cases were also created by the fact that some departments and/or parastatals took time to respond to correspondence from the offices and co–operation was not always forthcoming. Also, lack of sufficient resources prevented investigators from conducting some in loco investigations, hence hindering quick settlement of certain complaints”.248

However, she argues that:

”The office has managed to deal with the backlog effectively. In terms of the acceptable norm in the office an investigator should on average deal with not more 100 cases at any given time. Cases carried forward at the end of the year have been brought down to a manageable 107 cases per investigator”.249

The former Public Protector, Selby Baqwa, has also underscored the necessity not only of improved co-ordination between institutions, but also of raising awareness in civil society of the role that the office of the Public Protector plays in combating corruption. “Once there is awareness within the community then you have a real chance…of putting out fires in terms of corruption.”250

Lawrence Mushwana, himself a former ANC MP, has already had to investigate a number of high profile cases. He stated that political parties, particularly Opposition parties, tend to use his office to test political disputes or “for the media frenzy that such reportage was likely to cause”.251 Mushwana claims that despite the fact that he has found in favour of a number of high profile (ANC) officials, he has:

”taken over 17,000 decisions on complaints, mostly against senior ANC leaders in charge of departments and parastatals…(and has) dealt with corruption and maladministration in a dispassionate manner”.252

However Mushwana has also had the difficult task of investigating matters which were alleged to implicate senior members of the executive – an unenviable task given the intense interest by the media and Opposition parties. These inlcude:

� a probe into an undeclared gift received by Deputy President Zuma (the Public Protector found in Zuma’s favour that he had declared);

� a probe of claims that Defence Minister, Mosiuoa Lekota, did not disclose certain shares (the Public Protector found in his favour);

� an investigation into a diamond headpiece worn by Minister Pumzile Mlambo-Ngcuka (wife of the head of the NPA, Bulelani Ngcuka), which she received from a person who was later appointed to the SA Diamond Board (the Public Protector found that although she had not declared this, it did not constitute a gift or a donation); and

� claims that Zanele Mbeki (wife of President Thabo Mbeki) bought a house from Public Works at a price well below market value, only to attempt to sell it at double the value less than 10 months later. (The Public Protector found in the favour of the First Lady, who had apparently intended to buy it for the aged mother of President Mbeki. A lifetime member of the Communist Party, the President’s mother declined the offer and remains in a rural community in the Eastern Cape. Mushwana found that this was private matter.) 253

Perhaps the most controversial finding by Mushwana was into a complaint lodged by Deputy President Jacob Zuma against the NDPP, Bulelani Ngcuka, about the way in which the Scorpions and the NPA had investigated him on charges of corruption. He believed that the prima facie charge of corruption against him besmirched his name. The Public Protector found in Zuma’s favour, a move that earned the ire of Ngcuka and former Minister of Justice, Penuell Maduna, who regarded this as ‘spineless’ of Mushwana, sparking a serious clash between the institutions. Mushwana had apparently agreed with Ngcuka in a letter to him in February 2004 that, should there appear “to be a prima facie


South Africa 71

case of corruption against Deputy President Zuma, then he should be charged.”254 This viewwas not reflected in the final report to Parliament, which was highly critical of Ngcuka and Maduna.

Investigative/watchdog agencies One dragon—many heads? South Africa does not have a single anti-corruption agency but has instead vested a range of powers to tackle corruption in a number of institutions. It has, as some commentators have suggested, opted for a ‘multi-headed dragon’ with which to combat corruption. State institutions or authorities that have a specific mandate (usually as one of many other mandates), can be categorised as:

� constitutional and oversight bodies that have a special mandate in terms of Chapter 9 of the Constitution. These include the AGSA, Public Protector, PSC and ICD;

� criminal justice agencies, including the SAPS, NPA, Scorpions, AFU (a unit of the NPA) and SIU; and

� other stakeholders, which include the DPSA, National Intelligence Agency (NIA), South African Revenue Service (Sars) and the cross-sectoral National Anti-Corruption Forum (NACF). 255

With the overhaul of the criminal justice system and an emerging framework for fighting corruption, a debate emerged in the late 1990s about whether a poor country could afford so many agencies, potentially duplicating their work. The conclusion of this debate in 2002 saw government opting to retain the status quo, but providing for better co-ordination between the agencies through regular meetings of the government Anti-Corruption Co-ordination Committee. This includes all major agencies involved in combating corruption. The PSC undertook a comprehensive audit of national anti-corruption agencies in 2001 and recommended that: “the priority should be to retain the current agencies with some rationalisation while making them more effective by formalising co-ordination agreements”.256 One of the motivating factors was, ironically, that given other competing demands (poverty alleviation, job creation, HIV/Aids programmes), combined with the fact that this would potentially create a new layer of bureaucracy, the state could not afford the creation of a dedicated anti-corruption agency.257

This decision moves the country in the opposite direction of its neighbours in the region. Botswana has, for 10 years since 1994, centralised anti-corruption activity in a single agency based on the Hong Kong ICAC model. Signs are also emerging that Zambia, Lesotho and Mozambique may be moving in a similar direction.

Political motivations were possibly at play too: the creation of a single agency would have meant that the mandate of some of the existing authorities would have to be changed, most likely meaning budget cuts. None of the criminal justice institutions would be inclined to support this in an environment where all are calling for more capacity, not less. Despite the relative efficiency that is created by establishing a central authority it also poses certain risks. If the independence of such a single institution is significantly undermined through political intervention, it places public trust in the state’s response to corruption in jeopardy. This is an aspect of the debate that has not been sufficiently aired in the public domain. It is possibly a necessary one in order to answer questions regarding the creation of such an agency:

� Can Parliament play an effective oversight function?

� Is corruption a sufficient ‘threat’ to democracy to warrant the creation of a new, dedicated agency?

� What would the benefits be of a single agency as opposed to the current system of co-ordination?


South Africa 72

� To what extent does the present model dilute capacity among a myriad of actors, and are we creating expertise within institutions to combat corruption effectively?

� How do we guarantee that such an agency is free from state interference, yet remains accountable to the people?

� Equally importantly, an analysis is required as to the additional cost to the fiscus of creating such an agency, together with the saving accrued through removing this function from existing agencies.

This study neither answers all these questions nor can it provide a comprehensive cost analysis. To do this would require co-operation from all agencies and from the Treasury. However, it could be argued that this debate should now be reopened. Even if the consensus is that a single agency is not an option, it might ensure that complacency does not set in between agencies that show a tendency towards ‘turf wars’ as opposed to ensuring that the present mode of co-ordination actually works.

A notable example of such a turf war is the most public spat to date, between the SAPS and the NPA. The SAPS are convinced that the Scorpions should be an agency of the police and not of the prosecution service (this is discussed later in this section). If the ICD should take up the role of the police anti-corruption unit (as discussed in the previous section dealing with police and prosecutors), it will no doubt have to be carefully negotiated with the top brass of the SAPS who remain sensitive to external oversight or probity. Some of the turf wars are also based on an overlap in the work undertaken by certain agencies, such as between the DSO and the SAPS, for example. However, even among institutions where relationships are less acrimonious there is often an overlap of focus areas. For example, the SIU and the Public Protector overlap to some extent, and the same could apply to the DSO and SIU. Co-ordination among specialist agencies through regular meetings or due to institutional linkages, (such as between the DSO and SIU, where the Director and Deputy Director of the SIU are drawn from the DSO), have helped to ensure that duplication does not take place. It does, however, underscore the necessity for effective co-ordination and co-operation for as long as the multi-agency approach is favoured.

This section does not focus on all the authorities with an anti-corruption focus as they are discussed elsewhere in this study. It focuses on three key agencies not analysed at any length elsewhere in the study, namely:

� the SIU;

� the Directorate of Special Operations (the Scorpions); and

� the AFU.

These three agencies (the last two of which are located within the NPA) are the closest that South Africa has to specialised anti-corruption agencies. All three share a high public profile, which is positively reinforced through their generally good success rate in tackling difficult, high-profile and high-value corruption cases in both the public and private sectors.

Special Investigations Unit The SIU is the only state agency that is dedicated to combating corruption and its mission is to be “an anti-corruption agency that performs high quality investigations in the public interest and takes legal action to prevent and recover losses of state monies and assets.258”

Originally established by the Eastern Cape government in 1995 under the leadership of Willem Heath, the SIU was, for a number of years, closely associated with the profile of this former Judge. It shifted focus beyond the Eastern Cape Province when President Mandela established the SIU by proclamation in 1997 (in terms of Act 74 of 1996). During his tenure Heath developed a public profile as the state’s ‘anti-corruption buster’. However he operated without sufficient political support fromthe political establishment and his high-profile approach (some have argued it was brazen at times) ruffled many feathers in


South Africa 73

the fledgling administration and by the late 1990s he had alienated some people from his cause. In November 2000, as the arms deal scandal began to break, Scopa announced the creation of a Joint Corruption Task Team to investigate the arms deal. It recommended the inclusion of the AGSA, the Public Protector and NDPP. The Committee and its Chair, Gavin Woods, were divided over the inclusion of the SIU (by now popularly known as the Heath Unit). After weeks of debate in Parliament it was decided to exclude the SIU—one of the most contentious decisions in the entire process of the investigation—on the grounds that the role of investigator would be in conflict with the head of the unit’s role as a judge, in which capacity he was not permitted to be part of a criminal investigation in law. Members of the Opposition, some voices from within the ANC and the media saw it as an attempt to exclude the SIU, the only dedicated anti-corruption unit, from the process. Some of these concerns were validated when the NDPP, together with the Minister of Justice, indicated that they had prima facie evidence of corruption against Deputy President Zuma in August 2003 but decided not to prosecute. It was Zuma who had written to Scopa at the height of the debate suggesting that the SIU be excluded from the investigation. At the same time, the Executive, with support from some leading ANC MPs, raised the argument that Heath, as a judge, could not head the unit (which draws its authority from Executive directives), as this compromise the independence of the judiciary. Heath, who contested the decision in court, eventually resigned and on 28 November 2000 the Constitutional Court found (in a ruling by Judge Chaskalson in SA Association of Personal Injury Lawyers vs. Heath and Others 2001 (1) SA 883 CC) that a judge cannot head such a unit.259 The announcement to exclude the SIU from the investigation was made on 19 January 2001 by the President and Judge Willem Heath subsequently resigned with effect from 1 July 2001. Heath, now a private sector consultant has ironically gone on to act on behalf of people such as mining magnate Brett Kebble - in a matter brought to the court by the DSO. Kebble, who is well connected within the ANC and is never far from controversy when it comes to his business dealings has often spoken out against the way in which the Scorpions have investigated Deputy President Zuma.

Following the Constitutional Court ruling the SIU was re-established in August 2001 with Willie Hofmeyer as the new Director. Hofmeyer joined the SIU from the offices of the NPA where he, as Deputy to the NDPP, headed the AFU. Although he is a member of the ruling party, his appointment was welcomed given his good track record at the AFU.

The SIU only deals with cases of corruption, fraud and maladministration that have been referred to it or authorised by the President, and therefore functions under an Executive mandate without any institutional independence.

”When an investigation reveals sufficient evidence, the SIU should be able to institute civil action in the Special Tribunal to recover, protect or save state assets or state monies that have been or could be misappropriated or misused…the SIU has the added advantage that in civil matters arising from its investigations, cases have to be proved only on a balance of probabilities. This is significantly easier than criminal prosecutions where the guilt of an accused person has to be proved beyond reasonable doubt”.260

The President may refer a matter to the SIU for investigation on the grounds of any alleged:

� serious maladministration in connection with the affairs of any state institution;

� improper or unlawful conduct by employees of any state institution;

� unlawful appropriation or expenditure of public money or property;

� unlawful, irregular or unapproved acquisitive act, transaction, measure or practice having a bearing on state property;

� intentional, or negligent loss of public money or damage to public property;

� corruption in connection with the affairs of any state institution; and

� unlawful or improper conduct by any person, which has caused or may cause serious harm to the interests of the public or any category thereof.261

The SIU argues that its mandate is broader than the other law enforcement agencies such as the DSO and SAPS. In its Annual Report (2003/04) it states that it:


South Africa 74

”can intervene in instances of irregular administrative misconduct and/or corruption resulting in losses to the state. The SIU's forensic investigative capacity means that (a) it can perform functions of forensic auditing firms, (b) recover losses, (c) ensure savings, (d) facilitate criminal investigations, prosecutions and/or internal departmental inquiries, (e) advise government departments on improving their systems and (f) provide ongoing advice to host departments”.262

The SIU is, however, limited to investigations in the public sphere and does not tackle corruption or fraud involving the private sector. This most likely informed its decision not to not participate in investigations of large-scale corruption (probably worth many hundreds of millions of Rand) in the Road Accident Fund, as it was unclear if this money, intended to assist with injury claims resulting from motor vehicle accidents, was in fact public or private money.

The value of corruption is difficult if not impossible to quantify in any country, with no apparent victim in many instances i.e. there is not a ‘body’ to identify the scene of a crime. It is difficult to estimate the value of corrupt transactions other than through media reports and official documents. The SIU is one of the only agencies that quantifies its saving to the state through cash recoveries and the further prevention of loss of state activities, emphasising the high return that government has through its investment in this unit. In 2003/04 the SIU:

� recovered cash to the value of R14,019,848; and

� prevented the further loss of an estimated R373,910,389.263

The SIU has an annual budget of R37 million (up from R26 million in 2002/03) and a staff complement of 190 members.264 It predicts major personnel growth and plans to increase its staff to 300 by the end of 2004.265 It is in the process of moving its office from East London, where it has been since its inception, to Pretoria, from where it is operating since early 2005. The SIU has, however, since its inception under Judge Heath, had a heavy work burden and the Director Willie Hofmeyer notes that its existing budget is insufficient for it to undertake some of the proposed investigations that it has discussed with various departments.266 Hofmeyer added that:

”As a result of our successful track record in previous investigations, state institutions have increasingly approached the SIU for assistance with forensic investigations. Contrary to popular belief, investigations conducted by the SIU do not simply fall into our lap. The SIU has been pro-active in identifying departments that can benefit from our intervention, for example by using reports issued by Scopa and the Auditor-General. These reports have highlighted areas where there is significant corruption or maladministration in our country”.267

One novel approach of the SIU is that it receives some of its funding from departments where it is asked to make an intervention. For example, the SIU has been working with the Department of Correctional Services (DCS) to investigate corruption in South Africa’s 179 prisons. The Jali Commission of Enquiry has confirmed suspicions that prisons, most of which are overcrowded and largely designed for incarceration as opposed to rehabilitation, are rife with corruption. The Department is paying the R6 million a year needed for the SIU to dedicate 25 staff members to the investigate this situation.268 In 2003/04, the SIU derived 31% of its budget from departments and this is expected to grow to 49% in 2004/05.

During 2003/2004 the SIU has made a measurable impact in major areas where corruption and maladministration have debilitated service delivery. Some of the areas of intervention include the following:269

� The National Department of Transport: the SIU has begun a massive investigation, with the National Department of Transport, into the irregular issuing of driver’s licences and the irregular registration of vehicles. This is a problem in throughout the country but often reported in Gauteng and most recently in the Eastern Cape, where as many as 25% of drivers may have falsified driver’s licences.270


South Africa 75

� Local government: the SIU has started working with the Eastern Cape Department of Local Government on a large investigation into corruption and maladministration in a number of municipalities.

� Housing: the SI has recovered R1 million in a settlement with a contractor in Gauteng who was involved in irregularities relating to housing subsidies.

� The SIU has assisted the Witness Protection Programme (WPP) in investigating and rooting out large-scale mismanagement and corruption in its KwaZulu-Natal office, prior to its transfer to the NPA.

� DCS (prisons): as a result of the SIU investigation with the DCS, the Departmenthas achieved a substantial saving of R370 million in respect of its medical aid fund. This translates to a monthly saving to the medical aid of R31 million. The DCS is one of the government departments most troubled by corrupt activity. Many of the matters brought to the attention of the Jali Commission of Enquiry have lead to investigations by the SIU and SAPS. The Commission is likely to hand a final report to the President in 2005.

� Department of Justice (DOJ): the SIU was appointed by the DOJ to investigate allegations of fraudulent and corrupt activities at 40 magistrates' offices. After nine months, the SIU has investigated 21 Magistrate’s courts and at several of these exposed systemic gaps. Together with the SCCU the SIU has identified and investigated at least 49 cases that will be fast-tracked through the criminal justice system to ensure a speedy and successful outcome. In the more serious matters, some of the SIU’s senior advocates will conduct the prosecution on behalf of the NPA.

One of the problems that the SIU continues to have in speeding up its delivery is with proclamations that are required in law to be issued by the premier of a province in which an investigation has to take place. In response to a parliamentary question in June 2004, the head of the SIU noted that it:

”remained a problem, especially as matters of urgency would not be able to be pursued until all these processes were finalised. The average cycle time was 3–6 months or longer. The primary problem was that the legislation required the consent of the Premier of the province, and in most cases the SIU wasted inordinate amounts of time waiting for that consent”.271

He added that in most cases the problem was not due to a lack of political will but was instead because the premiers’ offices were overburdened and the process now needed to be streamlined.

Directorate of Special Operations (the Scorpions) Loved by the people, feared by the criminals, respected by peers

- Vision of the DSO

The DSO, commonly known by the emblem of the —the Scorpion—is the most high profile of the units tasked with combating corruption within the NPA, and the general public probably regards it as the state-sponsored corruption-busting agency. With its fast black cars, driven by a youthful, well-skilled and educated staff (many of whom have university degrees), donningt black jackets and baseball caps with the red scorpion insignia, one could not accuse the Scorpions of being publicity shy. President Mbeki launched the Scorpions in September 1999 soon after taking office. By now the political elite were aware that crime was the one issue, other than poverty and a lack of basic services, that was causing the greatest insecurity from the boardrooms to the back-yard shacks. Mbeki’s response, together with the head of the NPA, was to set up a media-savvy unit dedicated to tackling high-profile crimes (cherry picking, some would argue), modelled closely on the USA’s Federal Bureau of Investigation. Its success has received international recognition: the UK is considering emulating the Scorpions’ approach, the US State of Texas has apparently implemented the Scorpions’ model and a number of countries in Southern Africa have shown interest in its approach too.272


South Africa 76

The DSO was only officially launched on 12 January 2001 (16 months after it began work) when the National Prosecution Authority Amendment Act (No 61 of 2001, hereafter the NPA Amendment Act) came into force. The Head of the DSO is a Deputy National Director of Public Prosecutions who reports to the NDPP and is appointed by the President. The DSO istherefore not independent of the Executive. The DSO has thus far had three different Heads: Frank Dutton, Percy Sonn (also Head of the United Cricket Board at the time) and, since April 2003, Leonard McCarthy, whose stable hand (and relatively low profile, compared to that of the former NDPP, Bulelani Ngcuka) has seen the DSO through some of the politically most treacherous times. These are discussed elsewhere in this chapter.

The DSO replaced capacity in three former investigating directorates, namely the Investigating Directorate: Organised Crime and Public Safety (IDOC), the Investigating Directorate: Serious Economic Offences (IDSEO); and the Investigating Directorate: Corruption (IDCOR).273 What has made the Scorpions unique in terms of a South African law enforcement approach is that it has adopted a unique Troika methodology of combining crime analysis (also known as intelligence), investigation and prosecution in an integrated manner.

The NPA Amendment Act makes provision for:

”…the establishment of an Investigating Directorate, with a limited investigative capacity, to prioritise and to investigate particularly serious criminal or unlawful conduct committed in an organised fashion, or certain offences or unlawful conduct, with the object of prosecuting such offences or unlawful conduct in the most efficient and effective manner; and the necessary infrastructure and resources to perform these functions”.274

The purpose of the DSO is therefore to combat crime that takes place in an organised manner, which includes corruption. It has developed criteria for taking on new cases, as defined by its ‘Circular One’, “which outlines both the general and particular criteria which the investigating director will apply before authorising an inquiry…”.275

The DSO strategy can be encapsulated as 276:

� “identifying and addressing serious, complex and organised crime phenomena, that call for pro-active counter-attack;

� becoming the primary source of crime information (as per its mandate), with a stable, pre-emptive capacity to analyse serious organised crime trends and determine targets;

� applying a multi-disciplinary approach to investigations to ensure quality impact in its focus areas;

� disrupting organised crime and corruption networks through arrests, searches and convictions, and forfeiture;

� attacking the value chain of organised crime, through modern technology, communication surveillance;

� applying racketeering and money-laundering legislation; and

� proliferating the perception of victory over crime, essential to enhance public confidence”.

Matters to be investigated by the Scorpions need to be brought to the units attention by the public ( and can include reports by investigative journalists), or can be referred by the National Director. In deciding to declare an investigation a number of complex hurdles have to be crossed first, ensuring that the high-profile nature of the Scorpions work is not open to abuse. As a first step a matter must fall within the DSO’s strategic focus areas, which are drawn from work already undertaken by the organisation. These are:

� organised crime;

� rganised corruption;

� serious and complex financial crime; and

� racketeering and money laundering.277


South Africa 77

There are also 14 general criteria that must be taken into account when considering an investigation. They include:

”To what extent has the syndicate penetrated legitimate structures in the public and private sector? What potential exists for joint task teams with specialised units of the SAPS? Would the involvement of the DSO neutralise potential future loss on markets or industries? What is the public interest, particularly the impact on society as a whole rather than a select group of victims, and what is the potential future risk to society of the offences? And finally, what would be the cost of the investigation?”278

In addition to these comprehensive guidelines, there are also further criteria that are specific to the kinds of offences involved. “These usually include a threshold that must be met of the amounts of money involved in the matter. For example, a corruption matter has a threshold of R500,000, while serious economic offences should involve actual loss of R5m.”279

The Scorpions have an impressive prosecution record to date and on average 90% of cases prosecuted result in conviction. This success rate has, however, not come without criticism from detractors. Members of the SAPS, in particular, have grumbled about perceived ‘cherry picking’ by the Scorpions. The stringent selection criteria used by the Scorpions (detailed above) when deciding on cases and the high-profile nature of some of these cases is no doubt a contributing factor. Added to this is the fact that the Scorpions have two key resources: relatively good funding and a staff complement of approximately 500 young, motivated individuals, many of whom are University graduates.

However, it would be cynical to simply write off the Scorpions as glamorous crime-fighters who know how to spin a good story, although its intention to flirt with the media is very clear. The focus of the Scorpions on high-profile crimes, matched with its success rate, sends out an important signal to both corrupt individuals and the public. It may act as a deterrent to potential perpetrators of high-profile crimes by creating the sense that the state does have sufficient capacity to tackle such activities. Similarly, the Scorpions have come to represent the state’s capacity and political will to tackle cases of ‘grand corruption’. The latter is a necessity given the lack of faith in the police to tackle crimes such as corruption (although this perception may not be entirely correct). This is reflected, once again, in a stakeholder survey undertaken by the ISS at the request of the DSO in 2003 which, when comparing performance ratings in the criminal justice sector, places the Scorpions in top place.280 Of respondents in the survey, 65% were positive about the Scorpions’ performance and 6% were negative. In comparison, on the opposite end of the scale, 31% were positive when asked about uniformed police, while 35% where negative (approximately as many were ‘neutral’). Prisons warders, prosecutors, detectives and policy makers performed only marginally better than police.

Among the successes the DSO lists in its first three years of operation are following:

� more than 150 convictions in urban terror, hi-jacking, taxi and political violence;

� Approximately 2,000 arrests, searches, seizures and other operational breakthroughs;

� up to R3 billion-worth of contraband and drugs taken off the streets; and

� disruption of 100 syndicates/groups involved in smuggling, corruption, violence and money rackets. 281

Some of the major cases that the Scorpions have tackled over the past few years include:

� Count Ricardo Augusta. The Scorpions investigated claims that Count Ricardo Augusta paid money to the NNP in order to gain the support of Western Cape MEC for Environmental Affairs, James Malatsi, to build a golf course in ecologically-sensitive area. Augusta, who is purported to have links to other criminal activities, pleaded guilty in order to escape prosecution. This has however meant that Augusta’s business got off lightly in comparison with Malatsi, who is still facing criminal prosecution.


South Africa 78

� Hout Bay Fishing Industries. Arnold Bengis, one-time favourite son of Cape Town and chairman of Hout Bay Fishing Industries, was at the centre of an investigation into over-fishing and exporting of rock lobster and hake. In 2002 Bengis pleaded guilty to 28 charges of contravening the Marine Living Resources Act. A director of the company, Colin van Schalkwyk, also pleaded guilty to 301 charges of corruption.282 Bengis was eventually penalised by a fine of R20 million, the highest amount in South African asset forfeiture history.283 However Bengis, a high-flyer who at the time ran his business from the East Coast of the US, got off comparatively lightly. Jail sentences have, for example, been imposed on poor South Africans involved in illegal activities such as stock theft. In Bengis’s cases, though his fine was stiff, it should probably be seen in relation to his net worth which is no doubt far greater. The DSO has argued that a plea bargain was the only chance it had for a conviction, given that the alternate was extradition, which is a lengthy procedure. Bengis was eventually netted by US authorities who found him guilty on further charges of poaching. He now faces imprisonment in that country.

� Road Accident Fund. The DSO has been involved in investigating and prosecuting attorneys and agents involved in corruption and fraud involving many millions of rands in the Road Accident Fund.

� Leisure Net. An investigation was instituted in December 2001 into what was described by Judge Nel in the liquidation-related High Court litigations, as arguably the largest corporate collapse in South African history. The former CEOs of Leisure Net were arrested on fraud charges in March 2002.284 Co-operation by the Reserve Bank and Sars with the DSO was notable in this matter and eventually facilitated a trip to Jersey that resulted in the repatriation of R12 million.

� Land Bank.285 This case involves allegations of fraudulent activities carried out against the Land and Agricultural Development Bank of South Africa (the Land Bank) by alleged members of syndicates and corrupt officials of the Land Bank. Such activities include fraudulent loan applications (for false purposes and fictitious clients), fraudulent supporting documents, false and inflated securities andpayment ofbribes. At the beginning of the investigations the estimated amount of known fraudulent transactions was R3.8 million but this figure increased dramatically as the investigation progressed to a figure exceeding R100 million. In 2002, three of the accused were given prison sentences of five years, 12 years and 15 years respectively.

� State vs. Shaik. Shabir Shaik, financial advisor to Deputy President Jacob Zuma, was charged with corruption relating to, among other things, transactions he undertook as part of the arms deal. In this he allegedly acted as an intermediary between Deputy President Zuma and French multinational, Thomson Thales. This is a high-profile case involving an extremely well-connected individual and corruption in a deal that remains politically charged. It is widely believed that the Shaik case could provide the state with an opportunity to eventually prosecute Deputy President Zuma. If it does not, the result could be damaging for the Scorpions. When Deputy President Zuma was implicated by the NDPP of being involved in corrupt activity, Advocate McCarthy, Head of the DSO, reportedly said: “When you shoot at the king, make sure you don’t miss”.286 This may be an important test of the Scorpions shooting skills and the way in which they have selected their targets.

� Travel scam. The DSO has is leading investigations and prosecutions into abuse by both travel agents and members of Parliament of the parliamentary travel voucher scheme.

Despite this good performance, the DSO faces a number of key challenges:

� Skills. Despite the fact that DSO staff are regarded as ‘the elite’ amongst law enforcers, the DSO recognises that skills have sometimes been found to be


South Africa 79

lacking, particularly in the courtroom where mistakes have been made.287 As McCarthy has pointed out, the DSO “is not at the skills level [it] should be”.288

� Political challenges: In the wake of the travelscam, prosecution of Shabir Shaik and other ‘high-flyers’, critics of the Scorpions have become more vocal. According to media reports based on comments by ‘ANC insiders’ – Deputy President Zuma, ANC Secretary-General Kgalema Motlanthe and National Police Commissioner Selebi are “driving a campaign to reduce the independence of the Scorpions.”289 The Scorpions, established during the Mbeki Presidency, have long had the support of the President, however this support is not universal. In late January ANC Chief Whip Mbulelo Goniwe publically tongue lashed the Scorpions stating that the probe into the parliamentary travelscam “smacked of dubious intensions.” Goniwe who descibed the investigation as a ‘circus’ that was aimed at “embarrasing the country and tarnashing its international standing”, went on to add that “We don’t think that the Scorpion’s probe is done in good faith or is doing any good to the image of the country. It creates the impression that members of parliament are crooks.”290 Goniwe’s comments and his accusations of the Scorpions playing “political games” and being part of an apparent conspiracy are unfortunate as they appear to be an attempt to deflect the focus from the key issue of an alleged ‘lapse’ of integrity by a number of MP’s implicated in the scam. President Mbeki’s response to the Scorpions detractors has been to appoint a Commission (headed by Judge Sisi Kampepe) who will provide him with information on options regarding the future of the Scorpions. A group of civil society organisations (including T-SA, ISS, CSVR, Idasa, ODAC & the Benchmarks Foundation) made a public appeal to the President in early March 2005 to ensure that Judge Kampepe should focus on how to deal with the apparent overlap between the SAPS and the DSO – as opposed to how the DSO could be integrated into the SAPS (which would remove the sting – the unique troika approach – from the Scorpions).

� The DSO and the SAPS: constitutional arguments. Of all the agencies charged with a mandate to combat corruption, the DSO has, according to media reports, often been at loggerheads with the SAPS. Although these reports have not been substantiated by attributed comment in the media, it is believed that questions have been raised regarding the constitutionality and the existence of the DSO under the NPA as opposed to the SAPS. Although the Constitution makes provision for the establishment of a “single police service,” it does also provide that armed organisations or services may be established in accordance with National legislation.291 The key, therefore, is that the DSO should not come to duplicate the functions of the SAPS. Its focus is on investigation and prosecution and the argument has been made that the former potentially overlaps with the mandate of the SAPS. However, the Constitution further mandates the NDPP to carry out “necessary functions incidental to instituting criminal proceedings”.292 Redpath293argues that the investigation of crime is not the exclusive preserve of the SAPS, citing the roles of the AGSA and Sars as examples. There is thus no explicit constitutional reason for incorporating the DSO into the SAPS. If this were to happen, the DSO, as an agency also tasked with prosecution, would cease to exist as prosecution is the preserve of the NPA. It would no doubt also be damaging to public morale, as it would most likely be interpreted as a political move to sideline the DSO. Another proposal is to have the DSO report to the Minister of Safety and Security and not the Minister of Justice. The difficulty with this arrangement is that the effective head of the DSO is the NDPP, who is empowered to veto any prosecutions. Such an arrangement would (even further) blur the reporting lines, and when the Minister of Safety and Security is tasked with considering competing needs between the SAPS and the DSO, real institutional conflict may be the result as he is forced to support one agency over another or make difficult compromises. A move from the status quo to the SAPS may therefore be a move from bad to worse.


South Africa 80

� Relationship with other agencies. Section 31 of the Act governing the DSO calls for a specially-created ministerial co-ordinating committee, consisting of Cabinet members responsible for the criminal justice system, intelligence services and defence. Among other things, such a committee would determine policy guidelines in respect of the functioning of the DSO, determine procedures to co-ordinate activities of the DSO and other relevant government institutions, and determine the responsibility of the DSO in respect of certain matters.294 Progress in implementing this has been notoriously slow and the Public Protector’s Report in mid-2004 into the DSO investigation of the Deputy President highlighted the need for progress to be made. Most recently Willie Hofmeyer was directed by Bulelani Ngcuka to finalise the guideline agreement on the Section 31 Co-ordinating Committee. According to a response to a question from an MP by Advocate McCarthy, this was “completed and was made available to SAPS, and a final version would be made available for consideration by the Ministers in June 2004”.295 McCarthy added that “it would be incorrect to assert that the stakeholders would not function successfully without the Section 31 committee, because they do operate well on the ground in the absence of that committee.”296 McCCarthy also tackled the perception that the DSO was at loggerheads with the SAPS, citing a number of examples of co-operation between them including the DSO co-operation with the SAPS in the Eastern Cape Province (the Joint Anti-Corruption Task Team). In this case, 300 people were arrested, a further 114 were convicted and assets worth R34 million were confiscated.297 On another occasion McCarthy described the relationship between the DSO and the SAPS as “more good than bad on the ground”.298 Clearly, however, there is room for improved co-ordination and better relations. The establishment of the so-called Section 31 committee may go some way towards dealing with this, but it will take a measure of political good will from both institutions to overcome what often appears to be an acrimonious relationship, though one that is seldom aired in public.

� Staying the course. The DSO has been the victim of much attack, particularly following its focus on the aspects of the arms deal relating to Deputy President Zuma. It is an open secret that morale in the organisation is low following the Hefer Commission of Enquiry, the Public Protector’s report and Ngcuka’s resignation. Nor has the suspension of Cornwell Tshavhungwa, one of the most senior officials in the Scorpions, on charges of accepting bribes from officials at a government finance institution in Mpumalanga in May 2004, helped matters. More recently (in August 2004) Marion Sparg, CEO in Ngcuka’s office, has been implicated in corruption claims. Media reports in early 2005 also indicate that a number of top investigators and prosecutors have recently left the DSO.

The Parliamentary Monitoring Group quotes Ngcuka as stating, in a briefing to Parliament in June 2004, that it was important:

”to ensure, in the midst of all the attacks directed at the NPA, that the organisation remained united and focused…the problem has been that the management and leadership of this organisation has been diverted from running the institution, because it had to focus its attention on diverting the attacks. This affected the moral of the personnel and was destroying the organisation”.299

Asset Forfeiture Unit The AFU was established in May 1999 in the Office of the NDPP to focus on the implementation of Chapters 5 and 6 of the Prevention of Organised Crime Act, Act 121 of 1998. The Unit was set up in order to ensure that the powers in the Act to seize criminal assets would be used to their maximum effect in the fight against crime and with a special focus on organised crime. Although the AFU does not have a specific anti-corruption mandate it does have the capacity to investigate cases and seize or freeze assets that are in some way or another related to criminal offences of an organised nature.300 From its inception the AFU identified corruption and serious economic offences as major targets.

Willie Hofmeyer was appointed as a Special Director of Public Prosecutions and Head of the AFU in May 1999 and the AFU became a full division of the NPA in 2001. As mentioned


South Africa 81

earlier, Hofmeyer, Deputy National Director of Public Prosecutions, is also Head of the SIU. With a national office in Pretoria the AFU has a presence in seven other major centres in six provinces. The staff complement in 2004 is approximately 100 and the AFU has benefited from additional resource allocation, in part a recognition if its past performance.

The AFU has set itself the following key strategic objectives301:

� “To develop the law by taking test cases to court and creating the legal precedents that are necessary to allow the effective use of the law;

� To build the capacity to ensure that asset forfeiture is used as widely as possible to make a real impact in the fight against crime;

� To make an impact on selected categories of priority crimes;

� To establish a national presence;

� To establish excellent relationships with its key partners, especially the SAPS, DSO and SARS;

� To build the AFU into a professional and representative organisation”.

One of the major problems that has confronted the AFU to date is that its new approach of freezing assets means it often has to fight off legal challenges against this, including in the Constitutional Court. “The complexity of the work of the AFU is illustrated by the fact that it is at present litigating about 30 different legal and procedural issues, apart from a host of constitutional issues.”302 The AFU has, however, obtained over 60 High Court judgments which have helped to clarify many parts of the operation of the law, albeit not finally. During the past year (2003/04) the AFU won 19 of 23 cases, a success rate of 83%.

Despite legal challenges, the AFU has frozen assets valued at nearly R700 million (between 1999 and 2004) in terms of the nearly 500 orders it sought.303 In the same period, 243 forfeiture orders were granted and applications involving R116 million were finalised.304 The AFU has, however, conceded that while it is beginning to make an impact, much more needs to be done before it could be said to be making a big dent in criminal proceeds. Through its interaction with the Treasury, the AFU estimates that it would have to recover 10 times its current recovery figures to make a real impact.305

The AFU has identified 13 priority crimes, ranging from keeping brothels, through to drug money and violent crime. The three areas in which the largest percentage of assets have been frozen in the past five years are economic crime (62.8%), natural resources (9.7%) and corruption (8.1%) – corruption represents a monetaty value of over R57 million.306 As a category, economic crime focuses particularly on white-collar crime and includes the work that the AFU has undertaken in respect of the Road Accident Fund. Asset forfeiture has also proved a powerful tool against corrupt officials. The AFU has been part of the JACTT set up in the Eastern Cape to deal with corruption. “Nearly 30 restraint orders have already been obtained for about R8.5 million. Confiscation orders totalling over R1 million have already been obtained in the 13 finalised matters.”307

The JACTT operation in the Eastern Cape is one example of excellent co-operation between the AFU and other agencies. The AFU has a good working relationship with the SAPS, DSO, SIU and other law enforcement structures, which is vital to ensure an increased flow of properly-investigated cases to the AFU. It is also in the process of signing formal guidelines for future co-operation with the SAPS and DSO.308 Given the focus on organised crime, co-operation between the AFU and these units is key. One example is that of setting up special SAPS task teams in each province.

”These teams consist of skilled detectives who specialise in working with the AFU and they report directly to the Head of Organised Crime in the province. This has ensured that cases come to the AFU well prepared and has lead to a significant increase in the number of cases being referred to the AFU”.309

A further important aspect of the AFU’s work is to return stolen money to victims of crime and a total of R55 million has placed in the specially-created Criminal Asset Recovery Fund (CARA) for this purpose.310 Money is only ceded to the state in the event that there is no identifiable victim. It is important to note that the R55 million represents more than the total costs of the AFU to the Treasury to date, underscoring the effectiveness of this


South Africa 82

agency.311 However, CARA had not disbursed any funds at the time of writing as the regulations governing the fund, and a decision on who would act as its accounting officer, were not yet finalised. A key aspect that the South African Law Commission is reviewing is whether assets are given to individuals or to communities, in terms of restorative justice. This is no doubt important to clarify to ensure that CARA is not bogged down in bureaucracy in processing claims.

Media Despite years of state censorship under apartheid, South Africa has a fairly wide spread of public and private media. As mentioned above, the public broadcaster, the SABC, hosts six television channels, three of which are free-to-air, as well as 19 national and regional radio stations that have by far the widest reach of any form of media. There are 15 private radio stations and approximately 80 community radio stations as well as. There are three other privately-owned broadcasters, MNet, DSTV and eTV, of which only eTV is free-to-air and the other two rely on a mix of advertising revenues and paid subscriptions by viewers. Ownership of the largest circulation daily and weekly newspapers is however, highly concentrated. Five groups control 16 daily newspapers and 11 weeklies. They are:

� Independent Newspapers (part of the UK Independent stable, whose publications include The Star, The Cape Times, The Cape Argus, Pretoria News and Sunday Independent);

� Johnnic (publishers of Business Day and Financial Mail);

� Nationale Pers (publishers of City Press, Beeld and Die Burger);

� New Africa Publications; and

� Caxton.

Approximately 18.1% of the South African adult population of 45 million are reached by a newspaper.

”Circulation of the 17 regional dailies is over 1.2 million; the four Sunday newspapers have a circulation of one million; and the non-dailies, of which there are 104, reach in excess of 1.6 million. Furthermore, the 151 free sheets reach in excess of 3 million average circulation”.312

Radio has by far the largest reach of any form of media in the country with more than 12 million receivers in circulation. A spread of public and private broadcasters transmit both nationally and in certain regions and cities. In addition, licences have been granted for community broadcasters. The latter mostly focus on specific local or cultural interests. Worth noting, however, is Idasa’s Democracy Radio that provides programming with a focus on democratic education. Democracy Radio regularly focuses on governance issues and has, for example, also produced programming on the need to regulate the private funding of political parties in 2003/04.

Freedom of expression is guaranteed in the Constitution. The Films and Publications Act No. 56 of 1996 replaced the oppressive, apartheid-era Publications Act of 1974. Licences are, however, required to broadcast on radio or television. The Independent Communications Authority of South Africa (Icasa) is the telecommunications and broadcasting regulator. Icasa was established in July 2000 (its forerunner was the Independent Broadcasting Authority, established in 1993). Its key functions include making regulations that govern broadcasting and telecommunications and issuing licences to telecommunication service providers. Icasa is regarded as acting with the necessary independence and impartiality, as required by the law, in the awarding of licences.

Legal challenges facing the media Freedom of speech is guaranteed in the South African Constitution and the National Assembly has gone some way to remove relics of apartheid-era law that adversely affect freedom of speech. One such example is the Official Secrets Act (16 of 1956) that was repealed by the Justice Laws Rationalisation Act (18 of 1996). Citizens also have


South Africa 83

guaranteed access to information through a process outlined in the Promotion of Access to Information Act (2 of 2000). However, the procedure for requesting information is often tedious—particularly as there is pressure on journalists to ensure that stories leave the newsroom quickly. Delaysare almost inevitable in a time-bound process of applying for access to information.

Some legal provisions do, however, continue to cast a shadow (or at the very least, have the potential to do so) over the ability of the media to both ensure that the public has access to information and that the media operate without undue influence from the state. They include:

� Sankie Mthembi-Mahanyele vs. the Mail & Guardian: towards the end of every year the weekly Mail & Guardian publishes a ‘report card’ in which it asses the performance of Cabinet Ministers and awards them a symbol (i.e. A, B, C, etc.). The 1998 report included an assessment of the then-Housing Minister, Sanki Mthembi-Mahanyele, and linked her to corrupt activity by the Director General of that department, Billy Corbett. The Minister chose to respond to the assessment in February 2000 (a year later) and brought a defamation action against the Mail & Guardian, claiming damages amounting to R3 million in March 2000. The matter was dismissed by the Witwatersrand Local Division on the basis that the Minister had no locus standi (right to bring an action) to sue for defamation. The Minister appealed and the Supreme Court dismissed the appeal with costs in early August 2004.313 Ms. Mthembi-Mahanyele (now Deputy Secretary-General of the ANC), has decided to take the matter to the Constitutional Court, possibly at the taxpayers expense. The ruling is an important one as Judge Lewis held that a Cabinet Minister does have locis standi to sue for defamation. However, she found that:

“the proper approach to finding the appropriate balance between freedom and expression and the right to dignity is to recognise that, in particular circumstances, publication of defamatory statements about a Cabinet Minister (or any member of government) may be justifiable in the particular circumstances and, therefore, lawful…”.The judge also held that freedom of expression in political discourse is necessary to hold members of the government accountable to the public, and that some latitude must be allowed to allow robust and frank comment in the interest of keeping members of society informed about the government’s actions. She said that errors of fact should be tolerated, provided that statements are published justifiably and reasonably.314

This important judgment will, if it is upheld in the Constitutional Court, ensure that the media can report on actions of government officials within clear parameters without the threat of court actions for libel.

� The Interception and Monitoring Act (2002): although not yet in force, this Act could enable monitoring of journalists’ communications by the state or employers under certain conditions.315 This law may eventually be tested in the Constitutional Court should it be found to be in conflict with the right to privacy as contained in the Bill of Rights (Chapter 2 of the Constitution).

� The Protection of Information Act, no. 84 of 1982 (POIA): the drafters of this legal text were unlikely to have the promotion of access to information in mind. The Freedom of Expression Institute (FXI) has argued that “the South African government regularly uses laws such as the Protection of Information Act and the Armaments Development and Production Act to prevent media from accessing information that may be in the public interest.”316 The Act was most recently used by Advocate George Bizos (somewhat surprisingly, given that he is not only a respected advocate but has excellent anti-apartheid credentials), during the Hefer Commission of Enquiry into spy claims against Bulelani Ngcuka. Bizos argued on behalf of the intelligence agencies that the Commission must apply for information in terms of the Intelligence Services Act, the Promotion of Access to Information Act (PAIA) and the POIA. This move came under fire from the FXI, an NGO, and the South African History Archive at Wits University, which argued that this “ignored PAIA's involuntary


South Africa 84

disclosure mechanism through which documents could be made available without stringent legalistic and bureaucratic procedures. The agencies' reliance on POAIA was problematic because they themselves had admitted this ’archetypal piece of apartheid legislation‘ was anachronistic”.317 The organisations said that many legal commentators regarded it as unconstitutional.318 There is clearly a need to review the 1982 Protection of Access to Information Act, in as far as it is out of step with the 2000 Promotion of Access to Information Act (2000).

� Section 205 of the Criminal Procedure Act (51 of 1977) empowers courts to subpoena witnesses to give evidence without allowing some form of qualified privilege to journalists. It is now the subject of a Constitutional Court challenge. This comes in the wake of the Hefer Commission of Enquiry in which former Sunday Times journalist, Ranjeni Munusamy, was subpoenaed to testify about her work and the sources of claims that Bulelani Ngcuka was an apartheid-era spy. This followed her refusal to testify on the basis that she was receiving death threats and that testifying would affect her work as a journalist. She had, in addition, requested that she be called only as a matter of last resort. Munusamy then went to the High Court seeking a review of the judge's decision. Four media freedom bodies joined this application as amicus curiae (friends of the court), namely the Anti-Censorship Forum, the South African National Editors’ Forum, the Media Workers Association of Southern Africa and the Media Institute of Southern Africa. The Court dismissed the application and the matter is now heading to the Constitutional Court.319

� The Anti-Terrorism Bill (The Protection of Constitutional Democracy against Terrorist and Related Activities Bill): this Bill, which should have been completed before Parliament broke for the April 2004 national elections, included in its draft form clauses whose vagueness “lent it to abuse against legitimate media activities. In particular the Bill would restrict coverage and therefore the public’s right to know, and also put unprecedented legal pressure on journalists to reveal sources”.320 Media advocacy and human rights groups, and Cosatu raised concerns about the Bill, not least of which was that it could be used to limit the right to strike and protest. Many such controversial clauses have now been dropped.

The role of the media and challenges it faces Although they are not the single biggest source of whistleblowing, the South African media do play an important watchdog function in exposing abuse of power by both the private and public sector. Though the media are often accused of only seeking to sensationalise stories to ensure newspaper sales, South Africa is fortunate to have a largely free press which has, thoughwith some difficulty, weathered the allegations of being ‘unpatriotic’ or of harbouring a more sinister agenda when tackling the abuse of public office. Racism persists throughout South African society and this obviously does not exclude the media. An often-heard accusation is that the media is racist when critiquing government malfeasance. This accusation has also been made when both the editor and owner of a newspaper are black.

A recent example of government critiques of the media centres around a letter penned by President Mbeki in the weekly electronic journal, ANC Today.321 In it he chides the media for being “the fishers of corrupt men” who will go to any length to prove the government arms deal was corrupt.

”The fishermen (and women?) have recast their fishing nets, convinced that they will bring in a rich haul of corrupt government luminaries…The fishers of corrupt men happily construct doom scenarios that serve their purposes…The point however is that neither substance nor fact are important to the fishers of corrupt men in terms of their project to substantiate the stereotype…What is central is that the stereotype must be sustained and entrenched”.322

Mbeki adds that: “In this no-holds-barred campaign, anything and anybody who stands in the way of the fishers, including and especially the truth, must give way.”323 The


South Africa 85

President’s analogies are rich with subtext. However, within six weeks of the letter’s publication, the NDPP had charged Schabir Shaik, Deputy President Zuma’s financial advisor, with corruption, and implicated Zuma himself in a prima facie case of corruption. Most of the charges relate to the arms deal and vindicate many of those within civil society, the media, the opposition and within the ANC who have raised concerns about corruption in the deal.

The arms deal has, however, also been a low point of conduct among some members of the media. When the Sunday Times’ editor, Mathata Tsedu, refused to publish a report by Ranjeni Munusamy alleging that Buleleni Ngcuka was an apartheid-era spy, Munusamy promptly took it to Vusi Mona, the editor of a rival Sunday broadsheet, City Press. Mona, no doubt smelling a juicy story, ran a piece that broke the ‘spy allegations’ into the open. They were recently proven to have no substance by the Hefer Commission of Enquiry. Munusamy, who had defied her editor and was alleged to be politically too close to members of the ruling party, was subsequently suspended and resigned from the newspaper and Mona was forced to resign on allegations of conflict of interest. Soon thereafter Tsedu, too, was given his marching orders by the Sunday Times’ owners on the grounds of irreconcilable differences (although this may have had as much to do with falling sales figures, attributed to attempts to ‘Africanise’ this very influential Sunday weekly). Tsedu has now taken up the helm of editor at the City Press.

An example of criticism of the media at provincial level is an advertisement in City Press, paid for by the Mpumalanga Provincial Government, stating that, ”freedom of [the] press has become a licence to kill”.324 The advertisement accused journalists of having hidden agendas and claimed the media was trying to “send every black official to jail, including the President himself”.325

The pressure that leading journalists face is not limited to intellectual battles. Justin Arenstein, editor of the Mpumalanga-based African Eye News Service (AENS) is often under immense pressure to drop corruption investigations. This has taken the form of:

”death threats to verbal intimidation (both telephonic and face-to-face) as well as public character assassinations (…accusing him of being anti-revolutionary, racist, a ‘dirty liberal Jew’, an apologist for blacks and even a ‘satanic force’…)…the most serious pressure has, however, been a concerted campaign of professional malignment, and a systematic campaign of legal action…the letters have been coupled with a campaign of defamation suits which incur real costs and significant time for client newspapers to rebuff”.326

Only continued pressure by AENS eventually revived a police investigation into intimidation of their reporters in this province.

The pressures that members of the profession face are therefore enormous and the onerous task of investigating corruption is often delegated to the five media operations that have in-house investigative reporting units. These are Noseweek, the SABC, AENS, Sunday Times and the Mail & Guardian.327 This is likely to be compounded by what Sam Sole, of the Mail & Guardian and Vodacom journalist of the year in 2003, refers to as the conditions in the newsrooms which exhibit, “a lack of a supportive environment to sustain a focus on corruption, often regarded as ‘too serious or too complicated’ for the mainstream media or the average reader”.328

Some of the major findings reported in research commisisoned by the Southern African Human Rights Trust (SAHRT) include:

”A lack of resources is the major obstacle to coverage of corruption by the South African media. This is the view of 63% of the 23 senior journalists and editors who responded to questions on the capacity of the South African media to report on corruption. The time-consuming nature of investigative reporting came next, being rated as a major limitation by 45% of respondents”.329

The arms deal aside, the media do cover a broad range of corruption-related stories. Increasingly, also, and perhaps reflective of what is happening on the ground, the press are reporting on ‘good-governance’-related stories as well. According to a report by the Community Agency for Social Enquiry (CASE), produced for T-SA, 72% of articles focusing on corruption dealt with good governance or anti-corruption issues in the period from January to June 1999.330


South Africa 86

In a recent survey produced by JP Landman & Associates,331 civil society (excluding the media) is responsible for uncovering 18.4% of corruption in state structures, the official process (i.e. through government) uncovers 60.2% and investigative journalism only uncovers 8.4%. Although this is a clear indication of government’s commitment to combating corruption, it should be remembered that although investigative journalists only contribute a percentage of reports on corruption these are often the ‘politically sensitive’ cases that would otherwise struggle to come to light. These figures are therefore not an adequate measure of the gravity of the corruption that is uncovered.

However, one gains a sense when engaging sectoral actors, such as the Media Institute of South African (MISA), that journalists are often under pressure from both interest groups and those who are alleged to be involved in corrupt activity to report the ‘right angle’. This task is is unlikely to be made easier with the growth of media ‘monopolies’ that place commercial interests, which demand a ‘synergy’ between advertising and editorial content, above those of good journalism. Another concern raised by commentators is the pressure placed on some journalists regarding reporting on the controversial arms deal. Political pressure is also likely to exacerbate the practice of not following up on stories, for which the media is often criticised (i.e. encouraging a ‘sensationalist’ style of reporting on allegations of corruption rather than an issue-based style of reporting).

The public broadcaster: The role of the SABC The SABC has both the largest numerical and the largest geographical reach of any broadcaster in the country, dominating both television and radio (although with competition from the private sector). Any discussion of the role of the SABC should be seen in light of its abuse by the apartheid Nationalist government as a vehicle for state propaganda. As a result, the perceived independence (or lack thereof) of the public broadcaster is a key barometer of relations between the state and the media. The SABC also has the most powerful news team in Africa, with a staff of over 600 journalists, and so is therefore a potentially powerful source of information, and access to information, for the public. It can be argued that recent events have challenged—but by no means completely drawn into question—the independence of the public broadcaster:

� In late 2003, on Parliament’s recommendation the President appointed a predominantly ANC-aligned SABC Board. Some commentators maintained that political affiliations did not necessarily mean that members of the Board would not act independently. This, however, came on the heels of a statement by Board member, Thami Mazwai, to the National Assembly communications committee in June 2003, that:

”Others on the SABC Board may feel different, but I feel that objectivity is a delusion...The notion known as objectivity does not exist…we cannot afford to be driven by old clichés such as objectivity, the rights of the editor and so on. These are old clichés and no longer address the challenges of the day”.332

� In 2003 MPs overruled proposed legislation that the Minister of Communications should determine SABC policies. In the wake of this the SABC put forward a policy for commen,t which included a suggestion that would essentially centralise editorial control in the CEO through a system of “upward referral”. This was criticised for impacting on the independence of the institution, but the SABC argued that journalists were required to be accountable in terms of the Broadcasting Act and that the SABC’s licence, draft and internal draft code of conduct guaranteed editorial influence from commercial and political interests.333

� In July 2004 the Media Monitoring Project released a survey that revealed that 35% of items run by the SABC in May and June focused on government activities. In addition, on SABC 3 some 44% of the news was considered as ‘positive’ in comparison with this station’s main competitor, e.tv, on which 25% of news was so described.334 This was interpreted by the print media, (which ran headlines such as “SABC in war of independence”), as being linked to the appointment of Snuki Zikalala as Managing Director of news and current affairs. Zikalala, who has strong ties to the ruling party, is seen as a political


South Africa 87

appointment by many. In his defence Zikalala argues that he “doesn’t want sunshine journalism” and “has told journalists at the corporation if they found any politician to be corrupt, the story should be put on air.”335

Diversity of representation in the media—both in terms of the gender/race/class make-up of commentators and in terms of promoting alternative voices—along with increased capacity and support for investigative journalists, are essential to ensure that the next generation of journalists is well-balanced and informed, as well as sufficiently independent to be critical of corrupt practice.

Civil society A study336 by the Centre for Civil Society at the University of Natal indicates that by 1999 South Africa had as many as 98,000 NGOs and Community Based Organisations (CBOs). Many are likely to be involved in aspects of anti-corruption activities such as whistleblowing, demanding access to information or ethics training, but see combating corruption as a task undertaken by government agencies. Anecdotal evidence suggests that many NGOs are concerned with the effect that corruption has on development.337 Corruption is seldom seen as the single biggest developmental concern but rather as one that will ultimately undermine efforts by NGOs to promote social justice.

An Idasa/Co-operative for Research and Education (CORE) survey of the state of civil society in South Africa338 notes that 62% of respondents run programmes and projects in an area defined as ‘transparency and governance’. This was 3% fewer than those working specifically with democracy-related issues and substantially more than land (44%) and housing (43%). Who are these organisations and what are they doing? Their experiences may provide rich material of good practice on which other organisations in South Africa and the region can draw. One proposal is that they could be included in an organic database, managed by the National Anti-Corruption Forum (NACF), which would provide a structured approach towards sharing information on what is happening in this field.

An issue that has stared many NGOs in the face is the need to match support for a new democratic process with vigilance against corrupt practice, wherever this should arise. As in other states in transition, this poses a challenge when some individuals implicated in corruption have admirable credentials in the struggle against apartheid. There is no doubt that civil society, as a voice independent of narrow political party interests, has a critical role to play in raising awareness, monitoring, advocacy and research.

South Africa is fortunate to have a number of CSOs that have, as their primary focus or one of their top focus areas, of the promotion of transparency and accountable governance. It has been suggested that one of the challenges they faced in the past was that they often did not know who was doing what,339 and this possibly indicates the need for more active networking between them. In response to this challenge, 11 organisations met in July 2003 at a gathering hosted by the ISS. They agreed to establish a Civil Society Network Against Corruption (CSNAC340), a loose civil society network that will provide a basis for increased sharing of ideas and possible future co-operation around particular campaign areas. Participants at that meeting were drawn from:

Black Sash;

Cosatu;

Centre for the Study of Violence and Reconciliation;

ISS;

Idasa‘s Political Information Monitoring Service (Pims);

National Religious Leaders Forum (NRLF);

Open Democracy Advice Centre (ODAC);

Public Service Accountability Monitor (PSAM);

SA Democratic Teachers Unions (SADTU);

SA Catholic Bishops Conference (SACBC); and


South Africa 88

T-SA.

CSNAC has since convened four follow-up meetings and a possible programme of action with an organisation hosting the Secretariat of this structure is now being considered. The nature of a loose network precludes formal affiliation at present and therefore not all organisations listed above are necessarily active in CSNAC deliberations. However, it is hoped that this will form a basis from which the network could grow.

Some of the areas CSOs are involved in include the following:

Membership-based -rganisations This section discuss one important example of membership-based organisations.

Trade unions Organised labour has a rich history of promoting whistleblowing among its membership. Exploringthis issue with activists reveals that very little is being done to educate workers about the role they can play in whistleblowing and the protection afforded them by recent legislation. This is despite a detailed submission made by Cosatu341 on the Open Democracy Bill.

The reason for singling out unions among membership-based organisations is that they have the potential to be a key partner in CSO anti-corruption work, with an organised membership that accounts for a large percentage of South Africa’s workforce employed in the formal sector: they are a key partner to involve. It should be noted that unions are well represented among the civil society members of the NACF and have been involved in the formation of the CSNAC. Cosatu and its member unions are also becoming more vocal against corruption within government, the private sector and even within the unions themselves.

In little-noticed event, a resolution at Cosatu’s 8th National Congress on the Union, good political governance and moral regeneration included the following encouraging resolutions342:

� “Cosatu must develop a comprehensive strategy to encourage good governance within its ranks and for public representatives.

� Members of political parties in government, including ANC members in Parliament and public positions, must fully declare individual assets to avoid undesirable practices and adverse publicity that tarnishes the image of the Alliance.

� Cosatu must educate members to be aware of white-collar crime and not to accept bribes.

� The Federation should monitor companies and report those illegal activities to the relevant authorities for prosecution. It should encourage government to be vigilant in its monitoring of private companies.

� The Alliance (Cosatu, the ANC and South African Communist Party) should develop a stringent policy framework on the funding of political parties. There should be minimum standards and rules on funding, and such funds should not be mixed with other programmes that serve different needs.

� Cosatu should lobby the democratic government to audit legislation to ensure that it excludes companies from government tenders that have been convicted of corruption in South Africa or other countries.

� Cosatu together with the government needs to put in place strategies to monitor the private sector as well as the public sector to ensure that anti-corruption policies are adhered to”.


South Africa 89

Faith-based organisations Central to community life in many parts of South Africa, faith-based organisations have been involved in some of the networking initiatives343 among CSOs. The National Religious Leaders Forum (NRLF) comprises representatives of all major faith communities in South Africa.344 Represented on the NACF, the NRLF used the opportunity of its bi-annual meeting with the President to raise its concern with the very slow progress the NACF had shown in taking up its activities. This contributed to the Minister of Public Service and Administration’s involvement in attempting to reconstitute the NACF in late 2002. Although not directly involved in anti-corruption initiatives the NRLF promotes many ethical values associated with combating corruption through the activities of its constituent members. The SACBC has also been vocal on the issue of corruption. Another new initiative launched in 2004 is the inter-denominational Christians Against Corruption.

Moral Regeneration Movement Furthermore faith based organisations were well-represented at the government-initiated Moral Regeneration Summit which took place in May 2002 and also focused on the need to combat corruption. The Summit, which also saw the launch of the Moral Regeneration Movement (MRM), followed the October 1998 Moral Summit, where former President Nelson Mandela spoke of the need for an “RDP of the soul”. (The RDP is the now-defunct Reconstruction and Development Programme, designed to combat poverty under the Mandela presidency). The MRM is now planning provincial initiatives, which will look specifically at establishing partnerships to combat corruption.345 One of the issues that is likely to continue to plague the MRM in the months to come is that its primary political backer is Deputy President Jacob Zuma, implicated in a prima facie case of corruption. Since he has been one of the driving forces behind the MRM, its continued existence is linked to and dependent on his political future as the Deputy Presidency has overall political responsibility for the MRM and provides some of the funding for its activities.

Advocacy

The Open Democracy Advice Centre The Promotion of Access to Information Actand the Protected Disclosures Act have given South Africa what is considered ‘state of the art’ whistleblowing legislation. The Open Democracy Advice Centre (ODAC) was established in 2001 to offer training and advisory services on this important new legislation. This legal advice centre is an initiative of Idasa, in partnership with the University of Cape Town’s Law Department and the Black Sash Trust. Civil society activists involved in establishing ODAC also made substantial contributions to the drafting of the legislation through a parliamentary submission process. ODAC offers training and assistance on the why, how and what of putting in place a whistleblower policy, as well as tailor-made training on the legislation. ODAC is currently under contract to assist the PSC nationally and to offer it training on the Protected Disclosures Act and the implementation of a whistleblowing mechanism in the public service. It also offers training to trade unions and local government officials. ODAC also launched a hotline in 2002 (0800-lalela) to assist whistleblowers with the process of disclosure, which handles approximately 200 calls a month.

Transparency South Africa T-SA is the only national NGO with anti-corruption efforts at the core of its activities. T-SA has the potential to be key in mobilising CBOs and NGOs that are active at a local level to become ‘watchdogs’. This would no doubt be welcomed by many organisations once T-SA completes its current process of internal reorganisation. With access to international good practice from other NGOs, a board of directors and patrons who are influential in shaping the anti-corruption debate, and a good network particularly among CSOs, T-SA has played an important role in bringing together CSOs concerned with corruption-related issues, most recently at the February 2002 Civil Society Anti-Corruption Summit.346 This followed provincial workshops in 2001 which identified areas in which CSOs could make a valuable


South Africa 90

contribution in combating corruption. Due to resource constraints and the diffuse nature of some of the Summit decisions, these have not been followed up.

Public Service Accountability Monitor The PSAM,347 based at Rhodes University, is a provincial NGO initiative that follows individual cases of reported misconduct in the public sector in the Eastern Cape and makes its findings public, particularly through its publicly-accessible website. Since its inception in 1999, PSAM has developed a searchable internet-based case-monitoring database, which is regarded as an innovative approach and has drawn much attention both locally and abroad as a model to emulate. Although respected by many in the Provincial Government of the Eastern Cape, much of the whistleblowing and subsequent monitoring activity is regarded with suspicion by some quarters of the public sector in that province. With a small but growing staff, PSAM has presented a model that could be replicated in other provinces. It also recently launched the ‘My Rights’ campaign, which focuses on informing citizens about their rights as contained in the plethora of ‘citizen-friendly’ legislation drafted over the past 10 years.

The Idasa Public Information and Monitoring Service PIMS is an Idasa programme based in Cape Town with a focus on advocacy, research and training and which has contributed to the development of legislation combating corruption and promoting accountability. Most recently PIMS has been particularly active on the issue of political party funding, working with other members of CSNAC including T-SA and the ISS in exploring new ways to regulate private of funding of political parties. At the same time it has launched a court case to gain access to records of private funding to political parties. PIMS has also recently conducted research on government ethics in post-apartheid South Africa.348

The South African NGO Coalition The largest umbrella body for NGOs, Sangoco is now recovering after a period of leadership flux. In the past it has worked on developing a code of conduct for the NGO sector, something that it is hoped it will pursue as a means of assisting in combating corruption in CBOs and NGOs.

Research: ISS & CSVR The research carried out at the CSVR includes a specific focus on corruption in the SAPS. This was one of the only CSOs to publicly question a decision to close down the SAPS Anti-Corruption Unit in January 2003.

The ISS is the only applied policy research organisation with a dedicated anti-corruption programme. Located in Cape Town, the Organised Crime and Anti-Corruption Programme has undertaken extensive research on the phenomenon and houses both the Southern African Internet Portal on Corruption (www.ipocafrica.org) and produces a monthly briefing on corruption in South Africa, Umqol’uphandle—SA Corruption Briefing. The ISS also regularly proposes initiatives to combat corruption more effectively, including monitoring anti-corruption legislation.349

Singling out the handful of CSOs with a specific focus on anti-corruption issues is a relatively easy task, but may only give us part of the picture. It is likely that good work is being done in the field about which we know little. Included would be stories of local CBOs attempting to hold crooked council officials to account for irregular expenditure in rural communities, which receive scant national media attention regardless of the nature of the story.

Other challenges facing the sector � Monitoring compliance by the private and public sector. Civil society has

actively lobbied for many measures that are now included in national legislation, which govern conflicts of interest, accountability and good governance. Civil society has the key challenge of sharpening its oversight


South Africa 91

function to ensure that where these measures are not being implemented, it raises such concerns in public.

� Regulation of Gatherings Act (205 of 1993). This Act is being used with increasing frequency to clamp down on protest action. The Freedom of Expression Institute has argued that the “clampdown on rights and civil liberties [is] being accelerated at an alarming rate, and no one is pushing the panic buttons”.350 This relates primarily to the activities of the Anti-Privatisation Forum and Landless People’s Movement (LPM), which have been vocal critics of government policy on issues of privatisation and redistribution of land. The LPM called for a boycott of the 2004 elections and both organisations have reportedly been closely monitored by intelligence agencies in the past. Although this act is not of concern to the mainstream of civil society, its application should be carefully monitored.

� Corruption within Civil Society: CSO’s are not immune to corruption and the sector needs to be vigilant to ward against this. Strategies to combat this include the existence of an enforcable Code of Ethics within CSO’s, that together with sounds financial management could go a long way to preventing and dealing with corruption. It may also be timeous to revisit the SANGOCO Civil Society code on corruption, that has as yet not been implemented, as well proposals made in the late 1990’s that the office an Ombudsperson should be established to assist people working within CSO’s to deal with ethics related issues.

Provincial and local government The post-apartheid political era not only heralded a shift towards democratic rule, but also had a marked impact on the internal geographic make-up of the country. The by 1994 almost farcical black ‘bantustans’ or homeland states (whether ‘independent’ or ‘self-governing’) were dissolved, together with the four provinces. The creation of nine new provinces and newly-organised local governments has not been without its difficulties, indeed, these administrations have also been the source of much of the reported corruption in the country. However, it is important to keep the context of the reorganisation of both the state and its component parts in mind. This section discusses three key areas: the notion of co-operative governance, the role of provincial government and the role of local government. In addition, it explores briefly both the extent of corruption at local and provincial level and initiatives to combat it.

Co-operative governance Section 3 of the Constitution states that the government is constituted as national, regional and local spheres of government, which are distinctive, interdependent and interrelated. The importance of co-operative governance and intergovernmental relations in South Africa, determined by a number of principles, is stressed, and the ‘supremacy’ of the Constitution is highlighted.

Subsection 41(1)(h) provides that all spheres must cooperate with one another in mutual trust and good faith by:

� fostering friendly relations;

� assisting and supporting one another;

� informing one another of, and consulting one another on, matters of common interest;

� co-ordinating their actions and legislation with one another;

� adhering to agreed procedures; and

� avoiding legal proceedings against one another.351


South Africa 92

In addition, Section 41(2) specifically determines that an Act of Parliament must establish or provide for structures and institutions to promote and facilitate intergovernmental relations. This Act, which is being developed by the Department of Provincial and Local Government, should also provide for appropriate mechanisms and procedures to facilitate the settlement of intergovernmental disputes. A number of intergovernmental structures have also been instituted to promote and facilitate co-operative governance and intergovernmental relations between the respective spheres of government. These include, among others, the following:352

� the President’s Co-ordinating Council (PCC), comprising the President, the Minister for Provincial and Local Government and the nine Premiers;

� ministerial clusters, Directors-General clusters and the Forum of South African Directors-General, which promote programme integration at national and provincial level;

� ministerial forums (or MinMecs) between responsible line-function Ministers at national level and their respective counterparts at provincial government level, which normally meet on a quarterly basis. These fora are supported by technical committees; and

� a number of intergovernmental fora that facilitate co-operative government and intergovernmental relations.

In addition, according to the Constitution and the Organised Local Government Act, (Act 52 of 1997), (which formally recognises the South African Local Government Association –Salga - and the nine provincial local government associations), organised local government may designate up to ten part-time representatives to represent the different categories of municipalities and participate in proceedings of the NCOP.353 This gives local government a voice in the NCOP in Cape Town. Salga has a mandate to represent the interests of organised local government in the country's intergovernmental relations system with a united voice. Its business plan sets out a series of objectives, namely:

� “Promoting sound labour relations practices that can achieve high levels of performance and responsiveness to the needs of citizens;

� Representing, promoting, protecting and giving voice to the interests of local government at national and provincial levels, in intergovernmental processes and in other policy-making for a; and

� Building the capacity of local government to contribute towards a developmental democratic governance system that can meet basic human needs”. 354

Salga is funded through a combination of sources. These include a percentage share of the national revenue allocated to local government, membership fees from provincial and local government associations that are voluntary members, and donations from the donor community that funds specific projects.355

The role of provincial government South Africa’s nine provinces (Eastern Cape, Gauteng, KwaZulu-Natal, Mpumalanga, Northern Cape, Limpopo, North-West, Free State and Western Cape) each have their own legislature consisting of between 30 and 80 members. The number of members is determined in terms of a formula set out in national legislation. The members are elected in terms of proportional representation.

The political head of each province is the Premier who, together with the Executive Council, is responsible for the executive functions of government. The Premier is elected by members of the Provincial Assembly and s/he then appoints Members MECs. Decisions of the Executive Council are generally taken by consensus, as in the national Cabinet. Besides being able to make provincial laws, a provincial legislature may adopt a constitution for its province if two thirds of its members agree. However, a provincial constitution must correspond with the national Constitution as confirmed by the Constitutional Court.356


South Africa 93

Members of a provincial legislature are elected by means of proportional representation by voters registered to vote in the relevant province. Elections take place every five years and to date there have been three elections (1994, 1999, 2004), which have been held on the same day as the national poll, with each registered voter entitled to vote for a political party registered in that province as listed on a separate ballot paper. The ANC’s dominance at provincial level does not face a serious challenge. The ruling party enjoys a majority in seven of the nine provinces (with votes cast in its favour equalling between 68.4% and 89.18%).357 Although it does not enjoy majority support in the Western Cape (45.25%) and KwaZulu-Natal (46.98%), it still holds the premiership in both provinces through coalition governments. In the Western Cape this is achieved through a governing coalition with the NNP (10.88%): the former party of apartheid has thrown its lot in with the ANC after the 2004 election in the face of dwindling support. In KwaZuluNatal, old ANC rivals the IFP (36.82%) agreed to participate in the provincial cabinet after much negotiation. This was not insignificant given that the ANC and IFP were involved in a civil war in the province (actively fuelled—if not initiated—by the apartheid state) in the years preceding the 1994 election.

According to Schedule 4 of the Constitution provinces may have legislative and executive powers concurrently with the national sphere over, among other things:

� Administration of indigenous forests; Agriculture; Airports (other than international and national airports); Animal control and disease; Casinos, racing, gambling and wagering; Consumer Protection; Cultural affairs; Disaster Management; Education at all levels, excluding tertiary education; Environment; Health services; Housing; Indigenous law and customary law (subject to the constitution); Language policy; Nature conservation; Police services; Provincial public media; Pollution Control; Public transport; Public Works (in respect of provincial government); Regional planning and development; Road-traffic regulation; Tourism; Trade and industrial promotion; Traditional authorities; Urban and rural development; Vehicle licensing; Welfare services.

These powers can be exercised only to the extent that provinces have the administrative capacity to assume effective responsibilities. Provinces also have exclusive competency over a number of areas, which include358:

� “Abattoirs;

� Ambulance services;

� Liquor licences;

� Museums other than national museums;

� Provincial planning;

� Provincial cultural matters;

� Provincial recreation and activities;

� Provincial roads and traffic”.

Provincial governments have, in certain instances, been affected by a lack of capacity to ‘deliver,’ combined with poor accountability and oversight. This has affected their ability to both spend their budget and, where they have done so, has made the disbursement of funds vulnerable to corruption by public officials and eager private sector representatives. It is important to note that provinces account for nearly 60% of national budget expenditure (R165.2 billion in 2003/04).359 One such example has been the Eastern Cape Province, where massive underspending, mismanagement and probable corruption (both at a grand and petty level) lead to central government intervention. An Interim Management Team (IMT) was established by the national Cabinet in November 2002, not to take over the functions of provincial government but rather to assist in sorting out some of the structural problems within the provincial government.

The overall goal of the IMT (comprising, among others, officials of the DPSA and PSC) was to ensure that any service delivery backlogs are addressed and to establish sound


South Africa 94

management and leadership in the education, health, roads and public works and social development departments. The IMT is specifically mandated to:

� “Establish turn around plans for the four target departments, including the elimination of service delivery backlogs;

� Address cross cutting issues such as disciplinary matters, procurement reform and human resource management;

� Establish appropriate management structures and back office support;

� Monitor the implementation of the turn around plans and other interventions as well as the use of conditional grants”.360

Although the IMT was meant to produce a report upon completion of its work in 2003/04, the Minister of Public Service and Administration, Geraldine Fraser-Moloketi, only delivered ‘interim’ reports or ‘reflections’ to the National Assembly Portfolio Committee on Public Administration (in January and August 2004). A report was eventually released in late August 2004 after having been presented to Cabinet. It is not clear if the report released to the public is the only version or if a more detailed, confidential version of the report was circulated to the Cabinet.

The report states that during the, “problem analysis phase, the IMT identified a number of primary concerns relating mainly to issues around leadership, behavioural patterns, undue union influence, poor discipline, misconduct and corruption, delays caused by poor application of procedures and allegations of possible irregularity on the part of the Provincial Tender Board. A number of transversal challenges were also identified. In response to these challenges, six transversal plans were developed” 361. For the purpose of this study these are listed below but only selected relevant aspects of the progress in implementing these are highlighted362:

� Strengthen Back Office (Corporate Services Support). This plan aims to address many of the Human Resource Management, Financial Management and general administration problems identified. It has succeeded amongst other in finalising a draft permanent Supply Chain Management Framework for the province in line with the Public Finance Management Act and Treasury Regulations, this will usher in a new procurement mechanism and disband the Tender Board system.

� Improve Internal Controls and Accountability. This plan aims to improve internal controls and accountability within the four IMT departments through the establishment of an internal audit function. Only Health and Social Development have appointed an audit committee thus far while the other two departments are in the process of finalising their appointments.

� Improving Human Resources Management. This transversal plan deals with a number of human resources issues, both in terms of existing problems as well as piloting new initiatives.

� Strengthening Leadership and Management. This plan deals with issues of leadership and management.

� Rapid and Visible Service Delivery. The overall objective of this transversal plan is to pilot an innovative and fast track project implementation solution through using Coega Development Corporation’s Rapid Infrastructure Development Agency (RIDA).

� Ethics and Anti-Corruption. This transversal plan contains projects that deal with possible corruption, discipline and ethics.

o Successes achieved so far. The Disciplinary Cases Task Team (DCT) dealt with over 1324 backlog and emerging cases and 1102 cases have been finalised as at 15 March 2004. A sustainable framework for the management of discipline has been established, which was piloted in the Department of Roads & Public Works (DRPW) and is now being rolled-out. 207 call reports of corruption were received by the Hotline, and have been referred to the DCT


South Africa 95

and JACTT for further follow-up actions. 18 out of 21 forensic audits have been completed.

o Challenges. Implementation of the findings of the forensic audits, especially those related to systems improvements. A training and awareness programme for ethics and anti-corruption has been delayed because of budgetary constraints. A provincial anti-corruption strategy that is in line with the Public Service Anti-corruption Strategy is being developed and the medium to long term law enforcement anti-corruption capacity in the Province is being assessed. Of the 1324 DCT cases, 60 still need to be taken through the disciplinary process.

In addition the report details the work of the Procurement Review Project, which entails an audit of 17 tenders.

”These 17 tenders were identified from tenders awarded in the 1999/00 to 2002/03 financial years. The documentation of 137 tenders was scrutinised and 31 identified for possible further investigation. After a process of consultation with the Joint Anti-corruption Task Team (JACTT), the National Intelligence Agency and the Office of the Auditor-General, the 17 tenders were selected from the 31 possible irregular tenders. In the main the audits that were looked at, revealed many possible irregularities, non-compliance with policies and limited cases where disciplinary and criminal actions are required”363.

One of the issues of major concern to Government in relation to the Eastern Cape administration was the backlog in finalising disciplinary proceedings against civil servants charged with misconduct (including corruption). Accordingly, law enforcement agencies were asked to develop quick responses to deal with corruption. The JACTT was constituted to deal with the challenges posed by corruption in the Eastern Cape Province. JACTT is led jointly by the NPA and the SAPS, and is constituted as follows:364

� NPA, including the following specialised units: DSO (Scorpions), AFU and SCCU;

� SAPS, mainly detectives from the Commercial Branch and SAPS intelligence;

� Forensic division of the AGSA’s Office (Eastern Cape);

� SIU; and

� NIA.

The total number of investigators, analysts, forensic investigators and prosecutors forming part of JACTT amount to approximately 85, a great majority of whom have been drawn from other parts of the country.365

JACTT operations can be divided into two phases. The first relates to the eradication of the existing backlog of corruption-related cases in the province (which was estimated at 340 cases in 2003, a large number of which related to fraud and corruption in the Provincial Department of Social Development). The second phase relates to investigation and prosecution of high-profile and complex cases of corruption. To some extent, the investigation of cases relating to both phases is being done simultaneously.

Although the JACCT mandate has been extended into 2004/5, and a final report is not yet available, some of its successes include:

� A high-profile case in which action has already been taken, relating to payments made on a fraudulent or erroneous basis by the Eastern Cape Provincial Government. These investigations follow from previous investigations undertaken by the AGSA’s office, into payments made by the Department of Health. Possible duplicate or fraudulent payments to the value of R16 million were uncovered for the period 1998–2000.366

� By November 2003 JACTT had 198 cases on hand, had made 169 arrests, achieved 33 convictions and closed 158 cases.367

The gravity of the problem in the Eastern Cape—and the lesson it has for those who wish to see provincial governments succeed in their mandate—is perhaps best described by the


South Africa 96

Eastern Cape-based PSAM, which has a case monitoring database in the province. It argues:

”Of the 401 reported cases on the PSAM database only 19 (or 5%) have reportedly been met with a satisfactory resolution. We deem a satisfactory resolution to consist of the effective implementation of internal disciplinary, criminal and recovery proceedings. With respect to the reported amounts involved in these cases the PSAM’s database shows that of a total reported amount of over R6.9 billion only R264 million (or 4%) has reportedly been recovered”.368

The NPA and JACCT consulted with the PSAM during the course of this intervention and it is hoped that the province is on the road to stability and that the potential slide towards near systemic corruption has been halted. Importantly, in the wake of the April 2004 elections President Mbeki (as head of the ANC) replaced Premier Stofile (who was said to have managed the crisis facing the government, including accusations against members of his Executive, with less than vigour), with Premier Balindela. She has tackled the job with vigour and according to newspaper reports, has, on a number of occasions, commenced her Cabinet meetings at 4 a.m. These are initial encouraging signs that the work of the IMT and JACTT may be sustained by political will in the province.

Provinces: Declaration of gifts and interests Recent research by Lorato Banda (former Idasa researcher) also points towards the challenge of government ethics with regard to the declaration of gifts and interests. In the Office of the Premiers it was found that:

� “Offices of the Premiers in all nine provinces indicated that they do keep a register as required by the Code of Ethics and the Executive Members Ethics Act;

� Dates of the first set of disclosures differ from province to the other. All provinces failed to adhere to the timeframes stipulated in the Code of Ethics for the first set of declarations;

� There is general lack of awareness about the requirement of the Executive Members Ethics Act and the Code of Ethics in the respective Premier’s offices;

� Some provinces argued that the records kept in terms of the Code of Ethics are confidential and cannot be accessed by the public;

� All provinces except Gauteng, Western Cape and the Eastern Cape failed to comply with the Promotion of Access to Information Act of 2000 by failing to provide information requested in terms of this Act”.369

In the Provincial Legislatures it was found that:

� “All provincial legislatures have adopted codes of conduct similar to the national code of conduct for Members of Parliament;

� Gauteng and Mpumalanga have appointed integrity/ethics officers with reasonable functions and autonomy to enforce the code of conduct;

� Gauteng and the Western Cape provinces have made provisions for post-employment restrictions.370 (endquote)

The problems faced here are similar to that at national level and display a slow pace of implementation. Initiatives may have to be taken to raise awareness among members of the provincial Executives and Legislatures of the importance of timely compliance with these provisions, as well as the need to address the fact that no post-employment restrictions exist.


South Africa 97

Local government Chapter 7 of the Constitution discusses the role of local government. Municipalities enjoy the following status:

� “The local sphere of government consists of municipalities, which must be established for the whole of the territory of the Republic.

� The executive and legislative authority of a municipality is vested in its Municipal Council.

� A municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution.

� The national or a provincial government may not compromise or impede a municipality's ability or right to exercise its powers or perform its functions”. 371

In addition the objects of local government are to:

� Provide democratic and accountable government for local communities;

� Ensure the provision of services to communities in a sustainable manner;

� Promote social and economic development;

� Promote a safe and healthy environment; and

� Encourage the involvement of communities and community organisations in the matters of local government.

As directed by the Constitution (Chapter 7 s.155), the Local Government: Municipal Structures Act, 1998, contains criteria for determining when an area must have a Category A municipality (a metropolitan municipality) and when its municipalities fall into categories B (local municipalities) or C (district areas or municipalities). It also determines that Category A municipalities can only be established in metropolitan areas:

”Metropolitan councils have a single metropolitan budget, common property rating and service tariffs systems, and a single employer body. South Africa has six metropolitan municipalities, namely Tshwane (Greater Pretoria), Johannesburg, Ekurhuleni (former East Rand), Ethekwini (Greater Durban), Cape Town and Nelson Mandela (Greater Port Elizaberth), 231 local municipalities and 47 district municipalities. Metropolitan councils may decentralise powers and functions. However, all original municipal, legislative and executive powers are vested in the metro council. In metropolitan areas there is a choice of two types of executive systems: the mayoral executive system where legislative and executive authority is vested in the mayor, and the collective executive committee where these powers are vested in the executive committee”.372

As is the case at national and provincial level, the IEC is responsible for organising and overseeing ‘free and fair’ municipal elections (as well as by-elections when a council position is vacated). These must take place every four years, as opposed to five in the other two tiers of government. The last elections were held on 5 December 2000 and the next elections are expected in late 2005. Registered voters totalled 18.5 million with a turnout of 48.08% (almost half the national poll the year before). Seventy-nine parties nominated 30,477 candidates of whom 16,573 were party list candidates and 13,214 were ward candidates.373 Six hundred and ninety were independent candidates. During the 15-day floor-crossing period in October 2002, a total of 555 municipal councillors joined other parties. The floor-crossing provision continues to be controversial as councillors have two window periods between elections to swap parties. Many analysts believe that this system is likely to erode public trust in elected political parties as, in some instances, councillors, members of provincial government and MPs are lured to cross the floor by promises of titles or resources to fight elections. Members of the electorate who see their votes ‘walking’ to other parties may decide to withhold their vote in later elections, thereby negatively affecting participation in the democratic process. Another flaw inherent in this


South Africa 98

system is that those responsible for compiling party lists are likely to only seek out representatives whose loyalty is almost beyond question to avoid a political haemorrhaging during the window period. Equally, this may result in a situation in which public representatives are chosen more on the basis of their loyalty to the party (and its leadership) than on other important competencies. Clearly, there is a need for a balance to be struck in this regard.

The total allocation to local government in 2003/04 was R10.2 billion and this increased to R10.9 billion in 2004/05.

Corruption in local government Out of sight of the better-resourced national media, local government is considered to be particularly vulnerable to corruption given both size of its operations, the size of its budget allocation, and the role that councils play in the tendering process. The Department of Local and Provincial Government (DPLG) has implemented a Local Government Anti-Corruption Strategy (as of 2003) to deal with what it refers to as:

”A very real danger that, unless DPLG produces and champions an anti-corruption strategy, the legitimacy of the new system of Local Government will remain questionable and unacceptable to the majority of our people”.374

This ambitious project will be implemented in the financial year 2003/4 and “the total budget for the plan is R11.05 million of which approximately half will be sourced in-house and DFID will provide the remainder of the resources”.375 Endorsed by a Cabinet Lekgotla (extended Cabinet meeting), this includes aspect aimed at: prevention, awareness raising, implementing current legislation to ensure compliance, severe penalties for corrupt councillors and officials, technical support to municipalities and mayors to champion the anti-corruption campaign, and reporting and monitoring of corruption.376 Other than detailing an action plan to tackle these issues the strategy also make provision for a specific Local Government Anti-Corruption Unit designed to neither duplicate existing structures nor create another new superstructure.377 Additional research is required to understand how effective the DPLG has been in implementing the strategy. This is, however, a positive step towards taking the issue seriously at local government level.

Another encouraging development is the Municipal Finance Management Act (no. 56 of 2003), assented to by the President in February 2004. A key element of this piece of legislation is that it has the potential to curb corruption and cronyism among elected officials by bringing local government in line with the Public Finance Management Act and the new state supply chain management framework:

� Accordingly, councillors are barred from serving on Municipal Tender Boards and instead the accounting officers of various municipalities are required to take responsibility for financial decisions. This also frees councillors to better fulfil their oversight function as opposed to having to act as adjudicators in the awarding of tenders. The system was previously open to abuse either through the payment of direct bribes—or the funding of local branches of political parties to which a councillor serving on such a board is affiliated.

� The Act also requires municipalities to not only combat fraud and corruption—but requires them to provide regulations that would see any company that is found guilty of fraud and corruption being barred from tendering for a period up to five years.378

Cross-sectoral initiatives The National Anti-Corruption Forum A number of noteworthy attempts have been made to draw together various members of the public sector, private sector and civil society to discuss national anti-corruption initiatives. These include the Public Sector Anti-Corruption Conference (November 1998),


South Africa 99

two Civil Society Anti-Corruption Summits (2000 and 2002) and the National Anti-Corruption Summit (1999).

The National Anti-Corruption Forum (NACF), a cross-sectoral body representing business, civil society and government was established in 2001 following a resolution of the National Anti-Corruption Summit. When the Minister of Public Service and Administration, Geraldine Fraser-Moloketi, spelled out her vision for the NACF in Langa in June 2001, as not a “fancy talk shop, but rather as a very powerful body...an institution (which) will reflect new ways of organizing networks,”379 she could not have realised just how wrong she would be proven within the first year of this body’s existence. Blame for this should be borne equally, including by Civil Society. However, it was partly through intervention from the NRLF that the Executive attempted to revive the NACF in late 2003. Since then, however, the body has not proven that it could be the driving force behind bringing together the three sectors to tackle graft jointly. Two of the major challenges this body faces arethat it has no clear secretariat, with one member of the PSC supporting the NACF but only in a part-time capacity; and further, the issue of civil society representation may be one of the reasons for the lack of civil society commitment to the forum. Representatives were not elected, a difficult procedure given the size and scope of civil society, and therefore cannot be held to account to ensure that the NACF functions effectively. Another contributing factor is the lacklustre commitment by business, which has apparently not elected to send senior business leadership to participate in it. Corruption costs business money and one would have hoped that this would have been a sufficient driver to ensure the active participation of business in the NACF, although business has been represented by various umbrella bodies for a long time. As business ‘unity’ starts to emerge there appears little reason for the lacklustre role this sector has played in the NACF thus far.

The NACF has been increasingly active since early 2003 and is organising the National Anti-Corruption Summit, planned for March 2005. This may provide a new impetus for the body, also giving it a clearer—and much needed—mandate for action.

Provincial Civil society organisations in the Eastern Cape were, for a short time, part of the now-defunct provincial Network Against Corruption (NAC). This body, created in 2000 to “promote clean governance in all organs of state in order to improve service delivery in the Eastern Cape”, could provide a model for cross sectoral good practice that involves civil society as a partner. Membership was drawn from the following representatives of the legislature: the Presiding Officers, Chairpersons of Committees, Chairpersons of Standing Committees, Head of the Petitions Office, as well as representatives of all other stakeholders with an interest in fighting corruption. Essentially an attempt to involve NGOs and oversight/anti-corruption bodies (i.e. the SIU, AGSA etc.) in ensuring that the legislature deals with corruption effectively, the NAC may have been a victim of its short-lived success. It has been suggested that it was eventually closed down as the Executive saw it as a potentially critical oversight body, given accusations of corruption against senior members of the Eastern Cape provincial government. Nevertheless, it provides an interesting model of CSO intervention at a provincial level, which may well require further research to ascertain if it would also prove an effective model for replication at provincial or local government levels.

The private sector South Africa is awakening to the changing discourse on the nature of corruption, to focus not only on private-private corruption but also on the role of bribe payers from the private sector. This has, in part, been brought home in the somewhat one-sided debate on the role of elected representatives in the arms deal. There is no doubt that these officials should be held to account but the same applies to the large corporations implicated in bribery, such as Thales, EADS and BAE. With the exception of ongoing investigations into EADS (formerly Daimler Aerospace) by the Munich State Prosecutor, there is no indication that willingness exists on the part of the other OECD member states to implement the much-touted OECD Convention that criminalises the bribery of foreign public officials.


South Africa 100

However, SA business has as yet not clearly taken ownership of the need to tackle corruption in South Africa, focussing rather on fraud, in terms of which business is seen as the victim of criminal action. This fails to recognise the role that South African business has played in sustaining corrupt practice while both benefiting from it and being negatively affected by it through its negative impact on the economy.

However, there appears to be a lack of willingness in some quarters to recognise the role of business in corruption (much of which no doubt stems from corporate practice that was commonplace during apartheid, such as sanctions-busting). Neil van Heerden, immediate former CEO of the South Africa Foundation, which represents the interests of some of South Africa’s biggest corporate players, recognises positive attempts that have been made to tackle corruption since 1994 but holds the racially dubious view that:

”Coming from a past where part of our population was excluded from many things there is a syndrome of, “because I am a previously disadvantaged person, I have a special moral position and a claim to a share of things that I did not have access to before”…I am not saying all PDIs [previously disadvantaged individuals] are immoral people, but the past has created a situation in which people felt that they had a wider right, as it were, to participate in things like corrupt practice.”380

He adds that: “…in the case of the major corporations, speaking for the people who sit on my council I have no hesitation in saying that its an absolute no-no.”381 This may well be the case, but the corporate sector is by no means immune to corruption as a string of recent cases (such as those involving Leisurenet and Regal, the Enrons of South Africa) have proven.

Kevin Wakeford, the former CEO of the South African Chamber of Commerce SACOB holds a somewhat different view and recognises that corruption is not only a public sector phenomenon”

“We know that we have our own problems within the private sector…if one just looks at complaints coming through the Chambers [of Commerce] about the activities of certain companies. Then, let’s call it the level of awareness within the private sector of delinquency, I think is growing, it is not dissipating”.382

White-collar crime is legislated against in a similar manner to public sector corruption in the Prevention and Combating of Corrupt Activities Act. The reason for this approach, which includes a blacklisting provision, is clear when considering recent reports by the Scorpions that place the economic impact of white collar crime above that of all bank heists combined.

“Business Against Crime [BAC] puts the figure at around R48bn/year, or 3% of SA’s gross domestic product, and estimates that 3% to 5% of losses in most companies can be put down to crooked employees—with the largest losses attributed to top management crooks [despite the fact that] police, forensic experts and analysts say most corporates would rather prosecute shoplifters and petty criminals to the maximum but give golden handshakes to directors who’ve lifted millions from them”.383

Supporting this assertion the Justice Minister, Penuell Maduna, told a conference on white-collar crime in Gauteng in November 2003 that

”White-collar crime is costing the South African economy between R50 and R150 billion a year, with 82% of businesses being probable victims. It accounts for 30% of all business failures, and consumes 2-5% of a healthy company's economic turnover”.384

A survey conducted for the South African Government/UNODC Country Corruption Assessment among a nationally representative sample of 1,000 business people during April and May 2002 teases out the extent to which the private sector may be involved in fraud and corruption:

� 24% of employees had experienced fraud by an outsider;

� 15% had been approached to pay a bribe;

� 7% had paid a bribe.385

The discrepancy between those who paid a bribe and those approached to pay a bribe may be as a result of underreporting. The survey does not, for obvious reasons, try and ask to


South Africa 101

what extent bribes were in fact offered to the official concerned. However, to some extent the high score that the perception of corruption receives among business people and the actual experience of corruption do not match up, particularly when comparing the 15% of individuals who claim to have been approached for a bribe and the 62% of businesses that agreed that bribery is becoming accepted business practice

When respondents were asked for what ‘services’ bribes were paid, they identified the clearing of goods through customs (75%) and the procurement of goods for government (74%) as activities that are likely to involve bribery. The procurement of goods for private companies was cited by 51% as the source of a bribe.386 This points towards evidence of the prevalence of both private-public and private-private corruption.

Regulatory efforts to deal with the role of private sector in corruption have been speeded up in the past 10 years. They include the aforementioned Prevention and Combating of Corrupt Activities Act, which specifically legislate against corruption in the private sector, as well as the Accounting Profession Bill, which, once finalised, could assist in ensuring that the auditing profession is brought in line with international good practice. This could possibly including the rotation of auditing firms linked to a company and not only the individual auditors within those firms. Some may disagree with this approach, such as the DA’s Douglas Gibson: “As far as the auditors, I think the ANC is too much inclined to point fingers at the auditors. It is not they who are the crooks, it is the companies who are the crooks”.387 The approach does, however, go some way to ensuring that further checks are put in place to ensure ethical compliance by errant companies or parastatals.

South Africa has made a positive historic contribution to the global debate on corporate conduct, if at times only by default. The Sullivan Principles for business conduct were, for example, developed as a response to the role of international business in propping up the South African apartheid regime. Since 1994 South Africa has taken on a more proactive contribution to the debate. The Institute of Directors in Southern Africa established the King Committee on Corporate Governance in 1993, which produced the first King Report on Corporate Governance in November 1994. This Report was recognised internationally as the most comprehensive publication on the subject, embracing the inclusive approach to corporate governance.388 The King Committee published a second report in 2002 (the King II Report). Richard Wilkinson, CEO of the Institute of Directors, believes that it is “hailed outside South Africa as the finest report on corporate governance anywhere in the world…”.389 It does not, in fact, specifically name corruption except for a section on integrated sustainability, but the implication is there that good corporate governance could assist in minimising the opportunity for corruption. The Report does suggest that companies should consider disclosing political party donations as part of the other formal reporting requirements to stakeholders.

The process of implementation of the Code of Conduct contained in King II is, however, likely to be slow and uneven, a point which Wilkinson supports: “…application in SA is going to be a slow process, but we actually see it as a journey. We don’t see it as all companies being able to comply with the recommendations contained in King II overnight.”390 The monitoring of implementation rests with a number of players:

”We have charged all stakeholders with actually monitoring the implementation of the Code in the businesses in which they are interested. These include all interested and affected parties, not only the shareholders, but the requirement to conform with the report rests with the board and its directors… In addition to list on the JSE Securities Exchange you are required to comply with the Code contained in the King Report. This came into effect for financial years starting on or after 01 March 2002”.391

The JSE listing requirement, however, only regulates the less than 1,000 businesses listed on the Johannesburg bourse (the number has been declining in the past few years) and this is where the application may, in fact, be uneven. Kevin Wakeford points out that:

”There are over 1,1 million registered tax-paying businesses in South Africa…and then there are about 2,5 million emerging businesses, that aren’t registered that aren’t formalised and that will at some stage move into the overall formalised system. One needs to prepare some form of code for that sector as well”.392

Clearly many of these small- and medium-sized enterprises, as well as large non-listed entities such as de Beers and others, all need to embrace the principles of King II or


South Africa 102

develop a similar code in order for them to become socially responsible and for ethical practice to become the hallmark of South African business.

However, it is also clear that self-regulation may only be part of the answer. This is underscored by survey undertaken by the Ethics Institute of South Africa of the fifty-three top listed JSE companies, representing 810,000 employees (the Corporate Ethics Indicator, 2002). An Ethical Compliance Index score, based on a 100 point index, was developed by measuring the performance of these companies against requirements contained within the King II report. According to this, South Africa’s Effective Ethical Compliance Index is rated as 57%, which:

”probably means that that many organisations may pay mere lip service to ethics management, and this constitutes a significant ethical risk…One out of every four senior managers responded that their companies did not have a code of ethics, and one in three employees either had no knowledge of a Code of Ethics or claimed that it did not exist”.393

The nature of ownership of the economy is also changing, albeit at a rather slow pace. The government has made a firm commitment to seeing broader ownership of the economy by black South Africans and targets have been set to achieve this in sectors such as mining and finance over the next 10 years. These targets, achieved through frameworks agreed to by government and industry (particularly the finance and mining sectors) complement the proposed Black Economic Empowerment Act and broaden the focus of the current policy framework from employment equity to include ownership equity. This process is a necessary requirement to right the wrong of inequity that still exists within the economy, which is still controlled by ‘white business’ (although the management structures of some these businesses are transforming). Three issues do, however, pose major challenges to these efforts:

� Fronting is a practice used by established ‘white’ businesses who wish to access government procurement and either employ the services of external black consultants or operate through a ‘shell’ company that is black owned and managed but which only features during the bidding process, while the contract is delivered by the ‘white’ company. This practice undermines current attempts to grow small- and medium-sized black enterprises as it really benefits those who commit fraud, and ultimately white business remains the largest beneficiary. Moves are afoot to punish this practice more stringently through the new Black Economic Empowerment Act.

� The concentration of capital in the hands of the few: since the end of 19th Century individuals and families, (who have become fabulously wealthy, largely with the assistance of the state), have dominated the South African economy. Perhaps key among the assistance given by the state was the brutal system of labour practice that it sanctioned, which allowed a small group of industrialists to became exceptionally wealthy at the cost of working class South Africans. Examples include the likes of Cecil John Rhodes (mining), the Oppenheimer family (mining: de Beers and Anglo American) and later, under the rise of Afrikaner nationalism, the Ruperts (tobacco etc.). These individuals remain wealthy and their fortunes have grown over the past 10 years. The 2005 Forbes Listing of the Worlds’ billionaires includes three South Africans: Nicky Openheimer and Family (No. 72 – Net Worth $6 billion); Johann Rupert and Family (No. 272 – Net worth $2.3 billion); Donald Gordon (No. 413 – Net worth: $1.6 billion). 394In May 2004 the Sunday Times published the (until then unpublished) results of the World Wealth Report 2003, compiled by Cap Gemini and Merrill Lynch in the US, which shows that the Oppenheimers have, for example, seen their wealth rise from R11.6 billion in 1996 to R30 billion in 2003.395 What is equally instructive is that the report adds that the numbers of ‘ultra-millionaires’ (those who are worth more than $30 million, or R200 million) have grown from 150 in 1994 to over 700 in 2004.396 A good sign that the economy is growing? Patrick Craven, spokesperson for Cosatu, points out that: “These figures are shocking, especially as they come just after a United Nations Development Programme Report which shows there are 22 million South Africans living in poverty”.397 Concentration of ownership in the economy therefore remains in the hands of the few. This underscores the need to both


South Africa 103

ensure broader ownership of a strong private sector that stimulates economic growth and job creation, and build in checks to ensure that the influence the wealthy have over public policy is not disproportionate to that of the majority of South Africa’s poor electorate. The multi-racial nature of the ‘ultra-millionaires’ is no doubt welcomed as a new found source of legitimacy by those who were part of this exclusive club prior to 1994. The imperative now, however, is to lower the levels of poverty, not swell the ranks of the ultra-rich.

� Expanding the beneficiaries of BEE. There is growing concern at present that a few, politically well-connected individuals are in a position to clinch many deals linked to efforts to ensure black empowerment and broader ownership of the economy. Many of the leading black business people distinguish themselves from earlier generations of South Africa’s multi-millionaires/billionaires in that they have ‘struggle credentials,’ having fought for South Africa’s freedom, and many were incarcerated to ensure the end of apartheid. However, there is a growing perception among ordinary South Africans that it is always the same names that are heard when a new major empowerment deal is announced, and many of these individuals are well connected to the leadership of the ruling party. This is not to say that the ANC, as a party, is acting corruptly. It does, however, point towards a tendency for leaders of traditional (‘white’) business to seek out well-connected individuals as partners and those that have clinched similar deals in the past. This argument should, however, not detract from the fact that these individuals have considerable business acumen and were it not for apartheid, may have been leaders of industry a long time ago.

Minister of Minerals and Energy Affairs Phumzile Mlambo-Ngcuka has spoken of the “BEE gentlemen” in this regard, although there are a smattering of women such as Bridgette Radebe, wife of the Minister of Public Works, Jeff Radebe. Names that feature prominently include Patrice Motsepe (brother of Bridgette Radebe), Tokyo Sexwale (the former Premier of Gauteng), Saki Macozoma (Member of the ANC National Executive Committee [NEC]), and Cyril Ramaphosa (one-time contender for the Presidency and member of the ANC NEC). Each of these individuals has shares and assets to the value of approximately a billion rand or more. However, in this process of deal-making, which is sometimes based on debt, efforts are too seldom made to ensure that workers (or, for that matter, communities based around some of the industries in economically-depressed areas) are given shares in companies (such as South Africa’s mines) in a more significant way.

According to ThisDay’s Kevin Davie, in four large deals concluded in 2004,14 individuals gained stakes with an average value of R535 million (a cumulative value of R7,5 billion).398 These deals involved Standard and Liberty (banking/finance), Harmony and ARM (gold mining), Sanlam (insurance/finance) and MTN (mobile telephony). The MTN deal raised the ire of unionists as 30% of top management benefits from 70% of the deal.399 This has seen five directors gain options in the company worth R2,1 billion. Of the five beneficiaries of this black economic empowerment deal, two are white (Robert Nisbet and Santie Botha) and have benefited to the tune of a combined value of more than R500 million. As Davie argues, how whites can get this rich in the name of BEE beggars description. He adds that with R7,5 billion (a lot of money in anybody’s language), 7,500 new millionaires could have been created, capital of R100,000 could have been provided for 75,000 people or 750,000 small-scale entrepreneurs could have been funded to the value of R10,000 each.400 Yet only 14 individuals benefited from the four deals mentioned above.

In order to ensure that the majority of South Africans continue to support the process of economic transformation and that the process sustains its credibility as a means to both grow the economy and significantly deracialise its ownership, it is imperative that policy makers in government and business reassess the current approach that appears skewed towards the cream of the ultra-millionaires. Not to do so creates the belief among both the electorate and foreign investors that South Africa, which has achieved so much in terms of


South Africa 104

setting standards to combat corruption, somehow continues to favour a form of crony capitalism, which has arguably been the hallmark of the South African economy since the gold-rush in the late 19th Century. It is therefore important, now, to ensure that the transformation of the economy is tied to a new more ethical—and equitable—approach to making money.

Anti-corruption activities This section focuses on the role of the South African Government in combating corruption. It draws both on information contained elsewhere in the report and on a detailed analysis of progress with the Public Sector National Anti-Corruption Strategy, as agreed to by Cabinet in January 2002. The Public Sector Anti-Corruption Strategy will be used as a mirror through which to analyse the effectiveness of government’s anti-corruption strategy, but not necessarily that of each state institution (which earlier sections have attempted to cover). It will therefore not focus on anti-corruption initiatives undertaken by other pillars of the NIS such as the private sector, the media and civil society.

General progress South Africa has made a number of impressive strides in combating corruption. Many of these have been discussed elsewhere in this report. Key among them are:

� the Constitution of South Africa (1996), which established a basis from which anti-corruption work can be undertaken (mentioned in a number of sections analysing the ‘pillars’ in this report);

� the establishment of key Chapter 9 institutions, which, despite various shortcomings, provide a set of institutions that are key to both prevent and combat corruption (including the Public Protector, the AGSA and the IEC);

� a network of agencies that are either wholly or partly dedicated to fighting corruption, including the NPA, DSO, AFU, SIU and SAPS;

� the development of specialised legislative instruments designed in part or incidental towards combating corruption;

� a new law specifically designed to combat corruption, namely the Prevention and Combating of Corrupt Activities Act (2004);).

� the Public Service Anti-Corruption Strategy (2002); and

� the NACF

The Prevention and Combating of Corrupt Activities Act (12 of 2004) After nearly two years of deliberations by Parliament’s Justice Portfolio Committee, the President signed the Prevention and Combating of Corrupt Activities Act (hereafter, the Act) into law on 28 April 2004, on the 10th anniversary of the elections that culminated in democratic rule. The Act, which was the source of extensive civil society consultation before the Justice Portfolio Committee presented it to the National Assembly and NCOP for approval, provides a clear break with the previous Corruption Act (1992). It reinstates the common law crime of bribery and, importantly, tackles corruption in both the public and private sector.

The Act, which one legal scholar has criticised for using wording that may be difficult to implement, gives the following detailed definition of the general offence of corruption in terms of Chapter 2(3):

“3. Any person who, directly or indirectly:

(a) accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself o r herself or for the benefit of another person; or


South Africa 105

(b) gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or for the benefit of another person.

In order to act, personally or by influencing another person so to act, in a manner:

(i) that amounts to the:

(aa) illegal, dishonest, unauthorised, incomplete, or biased: or

(bb) misuse or selling of information or material acquired in the course of the, exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation:

(ii) that amounts to-

(aa) the abuse of a position of authority:

(bb) a breach of trust; or

(cc) the violation of a legal duty or a set of rules:

(iii) designed to achieve an unjustified result: or

(iv) that amounts to any other unauthorised or improper inducement to do or not to do anything.

is guilty of the offence of corruption.”

The Act, which has not been tested at the time of writing (though it may be used to prosecute referees involved in corruption in South Africa’s most popular sport), also codifies specific offences, which should make it much easier for the courts to apply the legislation. This follows the trend in modern law to ensure that the law is sufficiently clear to ensure that technical arguments are not found to create loopholes in the legislation. Specific offences named include offences in respect of corrupt activities relating to:

� public officers.

� foreign public officials (which will ensurethat South Africa is in line with OECD Convention on the bribery of foreign public officials and that South African business and parastatals act ethically, particularly on the African continent where South Africa is the largest single investor);

� agents;

� members of the legislature

� judicial officers;

� members of the prosecuting authority;

� witnesses;

� contracts;

� procuring and withdrawal of tenders;

� auctions;

� sporting events (the ‘Hansie clause,’ which is urgently required following instances of corruption in cricket, including former national captain Hansie Cronje, and match fixing involving soccer referees and players);

� gambling games or games of material chance

Other offences codified in the Act include those:

� of receiving or offering unauthorised gratification by, or to be party to, an employment relationship;

� relating to the acquisition of private interests in a contract, agreement or investment of a public body;

� of unacceptable conduct relating to witnesses;


South Africa 106

� of intentionally interfering with, hindering or obstructing investigations into an offence; and

� of being an accessory to, or after, an offence, or an attempt, conspiracy and/or inducement to another person to commit an offence.

Penalties

The sanctions envisaged by the Act are tough and indicative of the seriousness with which the legislature regards both the offence of corruption and the potential threat it poses to development. The maximum penalty that can be handed out by a high court, which applies to the majority of offences, is a fine or life imprisonment. Regional courts can also impose a fine or imprisonment not exceeding 18 years. Magistrate’s courts can also sentence somebody found guilty of corruption to five years in jail or hand down a fine as punishment.

The duty to report

Importantly, the Act places a duty on anyone in the position of Director-General, municipal manager, the head of a tertiary institution or anyone with a senior position of authority in the private sector (including banks) to report an instance of corruption to the authorities. The only requirement is that the offence must be to the value of R100,000 or more. This ensures that junior officials are not forced to blow the whistle, however serious examples of corruption must be reported by senior officials. Failure to comply with this provision could result in a fine or the maximum jail sentence of 10 years (by a high court) or three years if the case is heard in a magistrate’s court. These are stiff penalties that, if enforced, may ensure that those in a position of authority become more active in combating corruption.

Unexplained wealth

The Act also makes detailed provision for the National NDPP to investigate an individual or enter his/her property if there are sufficient grounds to believe that the person is in possession of unexplained wealth that could be the result of corrupt or criminal actions. However, the approval of a judge, on very specific grounds, is required before any action can be taken by the NDPP or his/her staff.

Tender defaulters

The Act makes provision for the establishment of Register of Tender Defaulters (a blacklist), which the National Treasury has to finalise within six months of the President assenting to the legislation on 27 October 2004. This relates specifically to any person (includes companies) guilty of corruption relating to contracts, procurement or the withdrawal of tenders. A court can order names to be placed on the register for a period of not less than five years and not more than 10. However, importantly, any name that appears on the list will be excluded from any government business (including any tender) for the same period. This will ensure that those involved in corruption will be both named and shamed and that it will have a long-term negative effect on their own profitability as they are excluded from doing business with the Treasury or any public sector entity. South Africa appears to be the first country to establish such comprehensive legislation at a national level (although the US has such provisions at a state and industry levels), and its successful implementation may provide an international model of good practice in this regard.

Specialised legislative instruments During the first 10 10 years of democratic rule the South African Parliament has literally churned out dozens of pieces of key legislation. Many give effect to provisions originally contained in the Constitution for the creation of key institutions with a role in promoting democracy and combating corruption. These include:

� the Electoral Commission Act (51 of 1996), which governs activities of the IEC;

� the National Prosecuting Authority Act (39 of 1998), which provides for the establishment of a single national prosecuting authority for South Africa;

� the National Prosecuting Authority Amendment Act (61 of 2000);


South Africa 107

� the Public Protector Act (23 of 1994);

� the Public Protector Amendment Act (113 of 1998);

� the Public Service Commission Act (46 of 1997); and

� the Special Investigating Units and Special Tribunals Act (74 of 1996).

� In addition, key pieces of legislation focus specifically on combating corruption. The Executive Members’ Ethics Act (82 of 1998), governs the disclosure of gifts and interests by members of the Executive. Implementation of the Act has been unequal at a provincial level and it remains difficult for civil society to access the register. Importantly, the does not cover post-employment provisions, which remain unregulated.

� The Public Service Regulations Act (2001) requires high-level officials to disclose, on an annual basis, the sources of their income, gifts and benefits and potential conflicts of interest to the PSC. Senior public sector managers continue to show low levels of observance and it may be necessary for those individuals who refuse to comply to be officially sanctioned.

� The Code of Conduct for Assembly and Permanent Council Members Act (1997) lists requirements for disclosure of gifts and interests by public officials. The sanctions mechanisms available are, however, relatively weak.

� The Public Funding of Represented Political Parties Act (103 of 1997) was an important first step to ensure that political parties receive equitable state funding, thereby promoting multi-party democracy. It does not, however, cover the funding of private political parties, which remains a lacuna in South African law.

� The Promotion of Access to Information Act (2 of 2000) gives voice to the constitutional requirement for an open democratic system. It ensures that public bodies cannot hide behind a veil of secrecy in order to hide information that should be in the public domain. A major challenge is that some government departments resort to the onerous process of requiring applications in terms of the legislation when they may be aware that this is not needed. As a result, it could be argued that the spirit of the law has not permeated all levels of the public and private sector. An study on access to information released in September 2004 and conducted by the Open Society Institute in five transitional democracies (including Armenia, Bulgaria, Macedonia and Peru) found that South Africa fared the worst in terms of successful access to information requests, despite its law being regarded as the ‘gold standard’401 Local journalists and NGOs participated in the study and of a total of 96 requests for information to government bodies submitted, only 23% were fulfilled. The Presidency fared the worst, with two thirds of requests not receiving a reply within the stipulated 30-day period. The remaining third of the request either met with oral refusals to provide information or were not accepted by the Presidency in the first place. Other agencies that fared badly were Eskom (the state electricity monopoly), the Independent Development Trust and the Department of Health and Environment. In comparison, provincial Premiers, the Department of Education and—surprisingly, given its history of secrecy—the Department of Defence, fared much better, with more than half of the requests being fulfilled.

The Act has, however, been used successfully by various bodies to gain access to information, including the Open Democracy Advice Centre. The South African History Archive (based at Wits University) used the Act to gain access to a number of boxes of military files that were used during the Truth and Reconciliation Commission process and then promptly reclassified as ‘secret’.

� The Protected Disclosure Act (26 of 2000) protects whistleblowers who disclose acts of corruption or other abuses of office in the public and private sector. The South African Law Commission is undertaking an extensive process of reviewing this Act as many whistleblowers have paid a large personal price for


South Africa 108

what should be a public benefit. In addition the Public Protector launched an investigation into provisions of the Act in August 2004 as whistleblowers appear to be coming under increasing fire. This comes at a time when prominent whistleblowers have been hounded out of their jobs and although a remedy is available for individuals who have been wrongfully dismissed, this is a lengthy process that, in many cases, badly affects their personal lives. Recent prominent cases include officials at Statistics South Africa who were allegedly intimidated when they made allegations of corruption against the Statistician-General (the allegations were later disproved by the PSC which investigated the matter). Other examples include an auditor, Glen Chase, who received a letter recommending that he be fired after blowing the whistle on John Block, a former MEC for transport in the Northern Cape Province. The need to support whistleblowers is exemplified in the case of John Muller, a traffic official in Mpumalanga Province who blew the whistle on Baleka Mbete’s (now the Speaker of Parliament) alleged illegal attempt to gain a driver’s licence. Muller, who made the disclosure in 1997 prior to the passing of the Act, was not able to find permanent employment after his dismissal following this incident. He died in early 2004 as he could reportedly no longer afford the expensive medical treatment he required due to an ailment that may have been brought on by stress. One of the many remedies proposed to tighten up provisions of the Act includes the necessity to ensure that whistleblowers can make confidential disclosures. However, in the long term South Africa needs to nurture a culture of celebrating individuals who blow the whistle and not ostracising them as ‘damaged goods’.

� The Promotion of Administrative Justice Act (3 of 2000) holds government accountable for its decisions on behalf of citizens and requires government to give citizens sufficient notice of any action that is taken.

� The Public Finance Management Act (1 of 1999) “holds certain senior officials of government departments accountable for the misuse of government money, or what is referred to in the Act as ‘unauthorized expenditure’ This therefore forces those accountable officials to put systems and controls in their departments that would prevent abuse of State money and those found guilty of such offences are punished. The Act also places a positive obligation on all government departments to design and submit to Treasury anti-corruption and fraud strategy.”402 There has been no public audit to date detailing which departments have done so, although a number have made announcements that signal a fair level of compliance.

� The Municipal Finance Management Act (56 of 2003 fulfils a similar mandate as the Public Finance Management Act but with a focus on the third tier of government, namely local government. A key aspect is that control over the tendering process will move from elected representatives to appointed accounting officers.

� The Framework for Supply Chain Management (2003) is a requirement of the Public Finance Management Act and is designed to deal with corruption in government tendering by ensuring more comprehensive oversight over the entire procurement and disposal of assets process. It also decentralises the authority to procure.

In addition, a number of pieces of legislation contain provisions on corruption, or can be used to combat. These are not discussed in any detail here. They are:403

� the Prevention of Organised Crime Act (1998), which seeks to deprive all persons of any ill-gotten gains and makes provision for asset seizure;

� the Financial Intelligence Centre Act (2001), which produced an anti-money laundering regime that complies with the recommendations of the Financial Action Task Force on money aundering (FATF). A Financial Intelligence Centre has also been set up within the Treasury and South Africa has been granted membership of the FATF;


South Africa 109

� the Commissions Act, 1947;

� the Riotous Assemblies Act, 1956;

� the Supreme Court Act, 1959;

� the Prohibition of Disguises Act, 1969;

� the Criminal Procedure Act, 1977 (as amended 1995);

� the Interception and Monitoring Prohibition Act, 1992; and

� the Witness Protection Act, 1998.

The Public Service Anti-Corruption Strategy In January 2002 a Cabinet lekgotla (meeting) approved the Public Service Anti-Corruption Strategy (referred to as the Anti-Corruption Strategy throughout this section), which provides a road map for governments anti-corruption efforts. Additional capacity was also established in the DPSA to assist with its implementation. This saw the establishment of the DPSA Anti-Corruption Unit, which is staffed by a small but committed group of anti-corruption specialists. Nearly 30 months after it came into effect a number of targets have been met, but key aspects are still outstanding. The Anti-Corruption Strategy contains nine “strategic considerations,” which are mutually supportive and have specific targets that must be met. This, together with the progress in implementing the anti-corruption strategy, is discussed below.

The Anti-Corruption Strategy proposes “that a holistic and integrated approach to fighting corruption be established. This requires a strategic mix of preventative and combative activities and a consolidation of the institutional and legislative capabilities of Government.”404

In addition, all aspects of the strategy must be:

� “Supported with comprehensive education, training and awareness;

� Coordinated within Government;

� Subjected to continuous risk assessment;

� Expressed in terms of measurable and time-bound implementation targets.” 405

The nine strategic considerations, that are inter-related and mutually supportive, are discussed below.

Strategic Consideration 1: Review and consolidation of the legislative framework This consideration requires the establishment of a new legislative framework (a law) to fight corruption and this should be implemented by July 2003. This framework must provide for listing specific provisions that are required to be included:

� A new corruption Act that provides a workable definition of corruption, that reinstates the common law crime of bribery, that creates presumption of prima facie proof to facilitate prosecution, that extends the scope of the Act to all public officials and private citizens and their agents;

� A range of offences and obligations;

� A holistic approach to fighting corruption;

� Compliance with regional and international conventions;

� Civil recovery of proceeds and the ability to claim for damages; and

� Prohibition of corrupt individuals and businesses.

All this has been successfully achieved through the Prevention and Combating of Corrupt Activities Act (discussed above). Although the Act only came into effect in April 2004 (well behind the deadline) it is encouraging that this process has now been completed and the Act must now be implemented. One of the areas that the new Act does not cover is that of


South Africa 110

post-public service employment, which now requires urgent attention, preferably through an amendment of legislation or separate legislation that tackles the issue as it relates to senior public officials (at all three tiers of government) and parliamentarians.

Strategic Consideration 2: Increased institutional capacity The Anti-Corruption Strategy proposes that the courts, existing institutions and departmental capabilities are improved for optimal functioning. The following three areas of intervention are prioritised:

� Courts: the existing proliferation of courts must be assessed and the efficiency of courts must be improved. The Anti-Corruption Strategy also calls for improved capacity of court officials to address corruption. With regard to the former, money has been allocated to increase the performance of courts or to address the capacity of courts to deal with cases speedily. However, it is of concern that no further budget has been allocated to the special Saturday courts. Other courts, such as the commercial crimes courts, continue to receive cases from both the NPA and Business Against Crime.

� The improvement of existing departments’ and agencies’ efficacy through the establishment of appropriate mechanisms to co-ordinate and integrate anti-corruption work. This was to have been achieved by March 2002. There is no doubt that after having been in operation of a number of years, there is a better understanding between units of who is doing what, as well as increased co-operation between various agencies with an anti-corruption function. In addition, an Anti-Corruption Co-ordinating Committee was established by government in 2002. Despite these important steps, units such as the Scorpions do not have a formal framework governing their interaction with the SAPS. This may imply that there are some tensions in the system. As long as South Africa follows the multi-agency route co-ordination will remain a process that must be nurtured as opposed to a goal that can be achieved by a set deadline.

� Departments are required to create a minimum capacity to fight corruption and make an audit report available by May 2002. The DPSA/Anti-Corruptionco-ordinating Committee has now completed the report and presented it to the Public Service and Administration Portfolio Committee in Parliament in November 2005. However, there have been positive indications that some of the requirements of this strategic consideration have been achieved. Some of the findings of the Audit are listed below406:

In a desktop survey of 85 Departments – the following anti-corruption capabilities were identified:

Area Summary of findings

Number of departments with dedicated anti-corruption unit or unit that does similar work

57% of departments have a dedicated anti-corruption unit

Existance of whistleblowing policy and mechanism

42% of departments have a mechanism in place, 35% have only a policy in place and 30% of departments have a policy and mechanism in place.

Experience of head of unit Of the departments that have units, 71% of unit heads have relevant experience, 18% have no relevant experience and 10% failed to answer this question

Reporting lines of unit 8% rated the units as completely effective. 61% rated the units as mostly effective, 16% rated the units as mostly


South Africa 111

ineffective whilst 4% rated the units as completely ineffective.

Strategic Consideration 3: Improved access to report wrongdoing and protection of whistleblowers and witnesses

This consideration focuses on improving the application of the protected disclosures legislation, witness protection and hotlines, commencing by August 2002. Lorraine Stober of ODAC provided the expertise for analysing the effectiveness of implementation of certain aspects of this consideration. According to the Anti-Corruption Strategy, specific improvements are to focus on the following:

� Establishing guidelines for the implementation of the Protected Disclosures Act, including guidelines that make a distinction between whistleblowing and witness protection. The DOJ has not produced any guidelines thus far. There also appears to be no discussion around witness protection in the public domain, however the South African Law Commission has produced a second paper on proposed changes to the Protected Disclosures Act and this may have resulted in the process not yet commencing.407

� Institutions are to implement departmental whistleblowing implementation policies, including policies for supporting persons maliciously and falsely implicated. In the public sector there seems to be confusion about to whom to blow the whistle and it is generally agreed that a proper whistleblowing policy that creates proper structures for reporting wrongdoing and enabling workplace culture will go a long way to reassuring employees that they won’t be dismissed or victimised. Whistleblower identity protection seems to be a problem as well and if it could be included in the policy, it will also help reassure employees. Some organisations, such as ODAC, do not recommend anonymous whistleblowing as they fear that it could become a cloak for malevolent action and what they would prefer to see is a proper policy, supportive culture and confidential whistleblowing.408

� Obtaining support from civil society to assist, support and protect whistleblowers. Civil society organisations such as ODAC have played an important role in this regard, developing a hotline to assist whistleblowers as well as a legal advice centre. However, it could be argued that it is ultimately the role of the state, not civil society, to protect whistleblowers against malicious action.

� Promoting a culture of whistleblowing among employees. This has not taken place: if anything, there is a growing sense that whistleblowers are being clamped down upon on an ad hoc basis (see discussion on the Protected Disclosures Act above). A strong signal is required from the Executive and the President, in particular, that whistleblowers need to be encouraged and needs to be supported by disciplinary action against managers who punish whistleblowers.

� Taking steps to improve the conditions for, and functioning of, the system of witness protection, including the issuing of guidelines on the conditions and working of the system. It is unclear if this has taken place.

� Reviewing the effectiveness, risks and existing problems of current hotlines in order to improve the system, with particular reference to access to the independent agency. This has been under discussion for some time, however a new anti-corruption hotline for the public sector should be up and running by September 2004 under the auspices of the PSC. What is not clear at the time of writing is if the plethora of other hotlines all levels of government will be phased out in turn. This would be a welcome move as it will reduce confusion among the public and make the raising of public awareness easier. Where


South Africa 112

necessary, this may require ensuring that staff are trained to deal with complaints from different sectors. It is a move that may not be equally welcomed by the private sector service providers that provide these facilities, though. Hotlines are, of course, only one aspect of the problem and as Lorraine Stober points out

”ODAC has always maintained that the organisation is shirking its responsibility by outsourcing its whistleblowing function to a hotline. An enabling whistleblowing culture won’t be created. An example from the helpline in this regard is: an employee, ‘A’, who works in the internal audit section of her company, phoned me. Their firm was contacted by the hotline company and was given information that employee ‘B’ had given. ‘A’ was tasked with investigating it. The manager of ‘B’ suspected that he was the whistleblower and began victimising him. ‘A’ phoned me for advice. Even though the company had a hotline, there was no enabling environment.”409

Strategic consideration 4: Prohibition of corrupt individuals and businesses It is proposed that mechanisms be established to prohibit (a) corrupt employees from employment in the public sector; and (b) corrupt businesses and agents of such businesses from doing business with the public service for a maximum period of five years. The Anti-Corruption Strategy envisaged that the information system for prohibited employees would be established by April 2003 and a central electronic register of prohibited businesses by September 2002.

There has been slow progress in this regard. However, the publicly-accessible central register of tender defaulters is legislated for in the Prevention and Combating of Corrupt Activities Act. It should have been up and running by 27 October 2004 (within six months of the Act being passed) and the Treasury has now finalised these guidelines. There is however no mechanism in place to prevent corrupt employees from employment in the public sector. This is unlikely to find favour with many constituencies, including some of the public sector unions.

Strategic Consideration 5: Improved management policies and practices This consideration proposed that improvements be effected with regard to procurement systems, employment arrangements, the management of discipline, risk management, management information and financial management. The proposals include the extension of the system of disclosure of financial interests, screening of personnel, establishing mechanisms to regulate post-public service employment and strengthening the capacity to manage discipline. The Anti-Corruption Strategy envisaged that revised management practices would be implemented by November 2002 and that a management information system would be operational by April 2004.410

In terms of procurement, the Treasury, through its Supply Chain Management Unit, is working on many aspects of these requirements and issuing guidelines in terms of the Supply Chain Management Framework. In terms of employment provisions one aspect that is wanting is the mechanism to regulate post-public service employment. According to the Anti-Corruption Strategy, this should consist of:

� a two-year prohibition on accepting employment, directorship or a benefit from a service provider to whom an employee has been instrumental in awarding a contract, tender or partnership arrangement;

� a prohibition on ‘switching sides’ during ongoing proceedings and negotiations with a service provider; and

� contractual binding of service providers to act ethically and not to recruit employees involved in the tender, contract or partnership arrangement.

Strategic consideration 6: Managing professional ethics The Strategy proposes that a generic professional ethics statement be developed for the public service and supplemented by mandatory sector-specific codes of conduct and ethics.


South Africa 113

Professional ethics would be supported by extensive and practical explanatory manuals and training and education. Implementation was envisaged for December 2002.

There has been some progress in this regard, although it is known how many departments have sector-specific ethics statements. A generic professional ethics statement has also been developed.

Strategic Consideration 7: Partnerships with stakeholders The Anti-Corruption Strategy calls for partnering, which has been identified as a cornerstone of the national fight against corruption. In particular, the NACF should be used to promote public service interests; partnerships should be established with the business and civil society sectors to curb corrupting practices; and public service unions must be mobilised to advocate professional ethics among their members.

Progress in these areas has been relatively slow. Key to the first two objectives is a representative, functioning NACF. The structure was dormant for an extended period and new life was only breathed into it during 2003. However, the NACF remains poorly funded. It should become a forum where government can engage in critical discussion with all stakeholders on shortcomings in its strategy and on proposals to improve it, and also be a means through which to engage civil society and business in assisting government in the implementation of anti-corruption policy. At present it is only the latter that is catered for, to a limited extent. It is hoped that the second National Anti-Corruption Summit gives the NACF a renewed mandate.

Strategic consideration 8: Social analysis, research and policy advocacy The Anti-Corruption Strategy proposes that all sectors are encouraged to undertake ongoing analyses on the trends, causes and impacts of corruption and for these sectors to advocate preventative measures.

A number of organisations have undertaken research but not within the framework of the strategy. Some organisations, including the ISS, were asked to assist in authoring sections of the Country Corruption Assessment Report at the request of government and the UNODC. In addition organisations such as Idasa have undertaken research into public ethics on behalf of the PSC. Research undertaken by the Centre for the Study of Violence and Reconciliation (on police) and the PSAM (in the Eastern Cape) has also assisted agencies such as the SAPS and JACTT respectively.

Strategic consideration 9: Awareness, training and education The Anti-Corruption Strategy proposes that all the above developments be supported through ongoing awareness, training and education and that a targeted public communication campaign be launched by July 2002, aimed at promotion of South Africa’s anti-corruption and good governance successes domestically and internationally. The local part of the campaign hinges on the promotion of Batho Pele initiatives and pride among employees.

This aspect of the Anti-Corruption Strategy has been the most unsuccessful. There has been no real attempt by the state to promote whistleblowing and anti-corruption through a concerted public education campaign.

In general, one of the shortcomings of the Anti-Corruption Strategy is that there is no mechanism for the media or civil society to monitor implementation. Ideally, where departments develop similar strategies in future it may be useful to use score-cards to assess the implementation of the strategy at key intervals.


South Africa 114

Discussion of key issues

The NIS The NIS in practice The South African approach to combating corruption is as complex and diverse as the patchwork which is the South African nation. South Africa does not rely on a single agency, law or pillar of society to combat corruption. Rather, it boasts a number of each of these that have more or less clearly defined capacities to tackle corruption. This is not to say, however, that the implementation of laws, capacity of agencies or sectors of society (including non-state actors) is optimal. Corruption places a massive drain on the state fiscus in all three levels of government as well as the private sector and efforts to combat it need to be vigorously promoted. However, this will require commitment to the co-ordination of activities and concerted efforts to implement anti-corruption measures by agencies and institutions that have a mandate to do so.

One of the hallmarks of the first 10 years of democratic government has been the creation of an arsenal of legislative instruments designed to combat corruption. Importantly, these were crafted by elected representatives and based on the values enshrined within the Constitution. Many of the laws are examples of international of good and have certainly assisted in raising the debate around minimum requirements within the Southern African region. Some of the most progressive include the Protected Disclosures Act, the Promotion of Access to Information Act and the Prevention and Combating of Corrupt Activities Act. Implementation has been uneven and monitoring thereof remains key.

The diversity of laws, agencies and state and non-state actors involved in combating corruption mirrors the transition to democracy after 1994. A new state was not created but efforts were rather made to ensure that existing institutions were transformed to fulfil certain democratic mandates, including combating corruption. Therefore the South African model is not one packaged for duplication in other countries: it is has been crafted to fit country and context (though drawing heavily on experience from other countries in that process). There are constituent parts of the South African NIS that may prove to be models of good practice for emulation. However, as this paper has shown, many institutions are still new and require nurturing, political will is present but slow to respond to the challenge on certain occasions and bodies that have an oversight/monitoring function, such as Parliament, the Chapter 9 institutions, civil society and the media, are all well-established but individually face major challenges in terms of fighting corruption.

Strengths and weaknesses of the pillars A case of corruption (or allegation thereof) that has been woven throughout all sections of this report is the infamous arms deal. Its real cost has not been the multi-billion dollar price tag that comparatively wealthier nations may have balked at. Rather, the cost of the deal combined with allegations of corruption have both tested and taken a toll on South Africa’s pillars. The context was challenging: the arms deal involved the murkiest global industry, where the highest bribes are paid internationally, and the South African Defence Force and defence industry (itself seldom, if ever, open to public scrutiny while it waged apartheid’s wars at home and abroad). The arms sellers pounced on officials of a newly-elected regime with offers of fancy new toys that some generals no doubt favoured, and with these toys may have come sweeteners, whether in the form of vehicle discounts or cash that some officials may not have wished to refuse. Some pillars faired well in this regard including the media (for keeping public attention on the issue) and the Prosecution Services (although they may now no longer be prosecuting the multinationals involved in the dreal). Others had a mixed experience, including the AGSA, Parliament and civil society (which some argue was not vocal enough on the issue). Of all the pillars the Executive probabl faired the worst as accusations were levelled at individuals within its own ranks. However, it is worth noting that the Executive has not intervened in any official


South Africa 115

way to stop the NPA and its agencies from investigating and prosecuting those alleged to have been involved in corruption.

The arms deal is an important lens through which a few anti-corruption efforts can be viewed. However, it is not the only case of corruption challenging this young democracy. It is therefore important to try and summarise the effectiveness of the key pillars and their success in being mutually supportive.

Chapter 9 institutions and Parliament � The Office of the AGSA appears to have good capacity. However, it continues

to issue a high number of qualified audits and this matter must be addressed by government departments and state institutions through better financial reporting. Given the responsibilities placed on the AGSA (in future, probably including monitoring the awarding of tenders by accounting officers), it is critical that Parliament through Scopa scrutinises every report of this office. This can only help to ensure that a high standard of reporting is maintained, which is also in the interest of the AGSAand those who wish to see a correct allocation of resources. A ‘sparring’ relationship between the AGSA and Scopa may not be detrimental to democracy: if anything, it may keep all parties on their toes.

� The Public Protector has come under fire from civil society and political parties during the past few years for both the backlog of investigations and the manner in which it handled certain investigations, including that into the conduct of the NDPP. Although the case backlog is being addressed, Public Protector will have to follow up work already undertaken in ensuring that the public and civil servants are aware of what the role of the Public Protector is and how they can better use this office.

� The IEC continues to do an excellent job of ensuring free and fair elections and has is free from influence by the Executive, in particular. Two key challenge it needs to address are the recommendations of the Slabbert Commission into proportional representation and the sticky issue of party finance once Parliament and the Executive are convinced of the merits of having to regulate this practice.

� The current system of proportional representation in Parliament, the dominance of one political party (though with the support of the majority of South Africans), and a much more robust presidency have all contributed to Parliament delivering a mixed performance. Where it has succeeded is in terms of developing an excellent legal framework in a short space of time. Where it has had mixed effectiveness is in terms of Executive and institutional oversight, and capacity needs to be improved. Where it is flagging is in ensuring that the South African people hold it in high regard and see the relevance of the institution. The travelscam has compounded this problem. The next five years may, in the medium term, prove to be the period in which Parliament reasserts its role as the ‘supreme’ oversight institution. Should this not happen the institution may slip, quietly, into the political background This is a situation that should be avoided at all costs.

Civil society South Africa has a large and diverse civil society. However, only a few groups are actively involved in combating corruption. Examples include the CSNAC. However, there is no doubt that civil society could be doing much more. Key areas for intervention include research and monitoring instances of corruption in both the public and private sector. Large membership-based organisations, such as the unions and churches, could take a lead on this but equally, CBOS need to be empowered to ensure that they can monitor the discrepancy between what is promised in terms of service delivery and what is in fact being delivered.


South Africa 116

Law enforcement and judiciary Generally the NPA and its agencies—the DSO, AFU and SCCU—have made good progress combating corruption. However, co-ordination between the DSO and the SAPS, in particular, need improvement – particularly if the President and Cabinet ensure that the Scorpions remain an independent unit within the NPA. This will require the requisite political will given the powerful lobby that wishes to see the Scorpions reigned in. Prosecutors have also managed to speed up court appearances and the Judiciary continues to display independence and an overall progressive interpretation of the Constitution. The SAPS, which should be one of the primary anti-corruption agencies, is still characterised as corrupt by many citizens. This may not be entirely fair, however, it underlies the lack of trust in the institution by many South Africans. The closure of the anti-corruption unit in the SAPS also did not help matters and it would be welcomed if the ICD declared its intentions to take over that mandate. Generally, however, the institutions have relatively good capacity and among those with an anti-corruption mandate (the NPA, DSO, AFU, SCCU, SAPS and SIU) there appears to be relatively good co-operation. What no doubt assists is the fact the NDPP heads up the NPA, DSO, AFU, SCCU and one of the Deputy Directors is the head of the SIU. It remains to be seen how a new NDPP manages this and the tricky relationship with the SAPS.

The media Under-resourced and often under verbal fire, the South African media play a very important watchdog function. Though not the primary whistleblower— and if anything this is a healthy sign that the state is fulfilling its mandate—it is key to ensuring that uncomfortable truths are brought to light. Its success in assisting in combating corruption will never be measured in terms of prosecutions and convictions, but rather in preventing powerful individuals from abusing office for fear of exposure. The Executive has, at times, been very critical of the media. Such critique has generally not been sustained but peaks at politically sensitive movements. The exception is concern about political appointments within the SABC, which has to be carefully monitored in future to ensure that the SABC is vigilant against the abuse of office and does not slip into a role that it has played for the majority of its existence during the past century, namely that of mouthpiece of the Executive. It is important that the media continues to report without fear of reprisal. Importantly, the media needs to be assured of access to information and not have to rely on the courts to achieve this. Equally, the SABC and other owners of media houses need to invest in skills and capacity for investigative journalists.

The private sector The private sector is the source of much corruption in South Africa. The implementation of the new legislation on corruption, voluntary principles and codes of good corporate governance may force a change in behaviour. However, this is unlikely to happen unless the private sector, through a public debate, faces up to the need for businesses complicit in corruption to be named and shamed by their peers. Equally, business, other than through Business Against Crime, is not vocal enough on the cost of corruption to its operations, either when local competitors pay the bribes or foreign multinationals do so. There are many reasons why business should champion anti-corruption efforts and there are few credible reasons to explain why it has not done so.

Three tiers of government Compared with the national Government, provincial and local government continue to be under-performers in tackling corruption. It is key critical to build capacity and monitoring of anti-corruption at these levels of government. The intervention of national Government in the Eastern Cape Province is an example of how things were allowed to deteriorate to unacceptable levels. Equally, we know the least about what is happening in South Africa’s local government, where the capacity to implement and monitor implementation is not what it should be.


South Africa 117

Effectiveness of government and donor-supported activities Legislative framework South Africa has developed an excellent legislative framework within which to combat corruption. The newest legislation, the Prevention and Combating of Corrupt Activities Act (2004), is well-considered on paper. However, it has as yet not been implemented and this will be the key challenge. The Municipal Finance Management Act faces a similar challenge as does the Supply Chain Management Framework. The Protected Disclosures Act has, however, come under criticism as too many victims have been the target of abuse by employers (in government and the private sector), who still regard whistleblowers as a threat. The review of the South Africa Law Commission should be completed quickly so that the Department of Justice can ultimately implement the necessary changes. The Promotion of Access to Information Act has also enjoyed unequal support from state institutions. Awareness needs to be raised that it is an instrument of last resort, and that information should be voluntarily provided without the need for a formal legal approach. Although an Executive Members Ethics Act is in place, there has been little monitoring of its enforcement. Equally, the code of conduct for MPs has been found lacking in its ability to adequately sanction errant members and it is still not in place in all provincial assemblies.

Public Sector Anti-Corruption Strategy As discussed above, government has committed itself to a comprehensive framework to improve its anti-corruption capacity. It has, however, fallen behind in many of the strategic considerations contained the Anti-Corruption Strategy. This may have had to do with the fact that Parliament spent much longer than expected in fine-tuning aspects of the new Prevention and Combating of Corrupt Activities Act (2004), while also being forced to deal with other pieces of pressing legislation such as that on floor-crossing. However, an area in which very little has taken place is raising public awareness of the need to fight corruption. This not only requires the setting up of a hotline, but a much more comprehensive approach to involve a broad section of the population in combating corruption. At present it is the anti-corruption agencies, state institutions, policy makers, the media and some civil society activists that have an in-depth knowledge of, not only who is involved in fighting corruption, but how this is taking place. This tends towards a situation where an elite consensus is reached between policy makers—government and the private sector and certain CSOs—of how to combat corruption. However, this will not ensure that ordinary citizens know that they have a right to hold public officials to account, even between elections. Botswana has, for example, launched a massive public education campaign that focuses on primary, secondary and tertiary education, mixed with public education through billboards and other means. This is urgently required if civil society in South Africa (both organised and general members of the public) is to be made aware that requests for bribes can be refused and those officials soliciting bribes (in both the public and private sector) need to be exposed. Such activity should not rely on donor support. Instead, the Treasury should fund this as a sign that the state welcomes participation from all sectors of society in blowing the whistle on such practices.

Donor anti-corruption initiatives Most large bilateral and multilateral donor agencies have been actively involved in promoting development in South Africa since the early- to mid-1990s. This may, however, have peaked as many donors see South Africa as a ‘middle-income country’. It does remain a highly fragmented middle-income country, however, and key sectors, in particular civil society and the media, could benefit from technical and financial expertise from the donor community. Donor activity is not co-ordinated in any manner and no forum exists where donors active in funding anti-corruption and governance initiatives can meet and engage.


South Africa 118

The involvement of donors to date has encompassed almost every pillar of the NIS, with donors supporting the establishment of various key anti-corruption institutions. The DPSA is currently finalising an overview of donor support in this regard, but it is already clear that donors have played an important role in providing financial support to institutions such as the DPLG, DPSA, PSC and others. Also important has been their provision of technical support through the secondment of staff, such as those funded by the UK government to assist the ICD with its anti-corruption mandate vis a vis the SAPS. Donors have also thus far funded meetings of the NACF.

Donors have also assisted South African civil society in a meaningful way to ensure that it can make use of the democratic space to undertake advocacy and research work and all large NGOs benefit to a lesser or greater extent from the good will of donors. At a national level this includes organisations such as TSA, ISS, ODAC, CSVR and Idasa. At a provincial level donors have supported the PSAM in the Eastern Cape. Media organisations have benefited from donor assistance, such as MISA (South Africa), an umbrella body for media practitioners in South and Southern Africa. Donors have, however, not been involved in funding many monitoring activities by civil society, particularly at the level of local government.

The DPSA proposed a framework to donors on how they could assist in tackling corruption in South Africa. This was based on the Country Corruption Assessment Report and resolutions of the National Anti-Corruption Summit. Recommendations included the following:

”Public sector

� Strengthening anti-corruption in local government including support to the DPLG to establish local anti-corruption campaigns, strategies, community self-assessment tools, and a review of procurement processes in selected authorities. All elements would also involve civil society participation.

� Support to the NPA (as part of existing support) to improve the functioning of the Internal Monitoring Unit, training of prosecutors and NPA’s role in coordination of corruption cases.

� Development of an anti-corruption plan for the court system and training of magistrates to preside over corruption cases (in terms of the new corruption Act).

� A further government-driven country corruption assessment report.

� Training of forensic staff in selected institutions.

� Training and support in terms of minimum departmental anti-corruption capacity and support to the PSC to execute its functions related to the investigation and professional ethics.

� Finalisation of the design of a corruption information system – essentially a database highlighting all anti-corruption cases which in large part will be available only to certain government officials.

Civil Society

� Increased involvement by professional associations – including presumably the establishment of codes of conduct.

� Assist civil society organisations to cooperate (such as CSNAC) and create a database of NGOs active in anti-corruption work.

� Develop and offer programmes for investigative journalists.

� Manage grants for civil society led anti-corruption projects. (This is unlikely to be welcomed by civil society though as there would be a concern should the Public Sector be involved in disbursing grants for such activities).


South Africa 119

Business sector

� Continuation of support for the existing Special Commercial Crimes Court that is funded by business through Business Against Crime.

National Programme

� Development of an anti-corruption programme for learners and the youth in conjunction with the Youth Commission, Department of Education and CSOs.

� Implementation workshops for different sectors following the Country Corruption Assessment Report.

� Support for a 2nd National Anti-corruption Summit.

� Establishment of a multi-year research agenda.

� Public mobilisation and education.

Regional Programme

� This would focus on support for implementing the SADC Protocol Against Corruption; regional capacity building through training related for example on the UN Handbook for corruption investigators and prosecutors.

� Develop a methodology, tool and indicators as an element of peer review for country assessment as part of an initiative to support the NEPAD process”.

Priorities and recommendations South Africa, as what could probably be termed a new anti-corruption democracy, is not in need of an overhaul of the National Integrity System but key measures need to now be put in place to ensure that what is an excellent framework in theory is more successful in combating corruption in practice. What is clear from the South African experience is that some problems are created by the present system but as many have been inherited from the previous one. What is therefore required is a process of carefully monitoring the pillars of the National Integrity System to see what can be improved. However, this does not imply that these improvements must be slow in taking shape. When the Lebour Sectoral Education and Training Authorities (SETAs), Department of Social Services (DSS) and Road Accident Fund together lose almost R4 billion per annum to the public purse, there is clearly a need for urgency. The private sector, too, has a massive problem in its midst with some reports suggesting that it is losing R50 billion to corruption per annum. Existing structures must thus be monitored to ensure that corruption is tackled before it spreads, and the pillars of the NIS have to work in unison to tackle corruption wherever it is found. There are no magic wand solutions to corruption. However, when we become weary of challenging the corrupt within our society we allow the rise of one of the most important cross-cutting issues challenging a developmental state. As a modern democracy South Africa is not in this situation but it will require vigilance to ensure that the momentum to avoid it is maintained.

Civil society The role of civil society in combating corruption must be promoted. This should involve lead actors at the forefront but should also ensure the involvement of civil society organisations at a community level. . The funding of civil society organisations is also a cause for concern: Government continues to be the magnet for much donor support for anti-corruption initiatives. However, in the medium term Government should shift from this strategy to one of allocations from the Treasury for such work. Investment in anti-corruption activities, if these are well thought through and strategies implemented, almost


South Africa 120

always results in cost recovery and the state should see anti-corruption work in this light. Greater investment by the state (taking into account that it is already the source of the majority of funding for anti-corruption activity) will also ensure that there can be greater public accountability for the use of resources, which is difficult to ensure when the state uses donor funds for this purpose.

Co-ordination among agencies

The Anti-Corruption Co-ordination Committee has had some success in bringing together South Africa’s various anti-corruption agencies. However, as this report suggests, it may be wise to revisit the issue of a single anti-corruption agency again in the near future. No detailed study has yet been made public as to why this would be more costly than having the myriad of agencies in place at present. If the cost can be recovered over a period of time, and if there is consensus that such an agency would be sufficiently independent, then this is an option worthy of consideration or at least debate. The heads of various agencies will always be susceptible to pressure from the powerful to act in a certain manner and it takes a person of great integrity and certain political nous to counter such advances. The establishment of a single, dedicated anti-corruption agency would also centre the mind of the public on one institution, building confidence and promoting a sense of who should be held to account when certain matters are not investigated or prosecuted.

Ethics and disclosure

The implementation of disclosure regimes among members of the Executive (at national and provincial levels), national and provincial Assemblies and senior public sector managers must be enforced and, in certain instances (such as in Parliament), the sanctions mechanisms need to be made more severe when gifts or interests have not been declared. The PSC also needs to promote the prosecution of senior managers who are repeat offenders in this regard. With high public office comes certain responsibilities and where trends are observed regarding non-compliance, this should be seen as a warning that there is not sufficient respect for the ethics regime.

High-profile cases

The political will to prosecute high-profile corruption cases in the public and private sector needs to be maintained. This sends an important message to others, including low-level officials involved in petty corruption, that no-one is beyond reproach.

Implementing Legislation The implementation of the Prevention and Combating of Corrupt Activities Act should be a source of concern for all sectors. Once the Register of Tender Defaulters is completed, it, together with other aspects of the Act provides the state with a potent tool with which to combat corruption. This will require prosecutors, magistrates and judges to be familiar with its contents. Awareness needs also to be raised about the Act among the public and private sectors to ensure its deterrent function. Life imprisonment is a sentence that should not be wished on anyone and the fear of being caught should become a motivating factor in curbing corruption. Equally, the implementation of other pieces of legislation, such as the Promotion of Access to Information Act, needs to be monitored, with its use promoted in civil society and by the media but only after other channels have been closed by the public body concerned. The onus is therefore also on the relevant institution to promote and not hinder access to information that would be in any case be granted after a lengthy legal procedure.

Islands of integrity: 2010, jobs and anti-retroviral (ARV) rollout It is always useful to create initiatives that exemplify how things should be done as opposed how they should not be done. It may therefore be worthwhile for the public sector to choose a few high-profile initiatives and announce that they will become Presidential lead projects with the specific aim of keeping them free of corruption. These should be projects from which the people benefit directly (not necessarily arms, for example). They could include the massive infrastructure investment in building soccer stadiums in the run-


South Africa 121

up to the 2010 Soccer World Cup in South Africa or the R15-20 billion which the President announced in February 2004 would be spent by the state on a public works campaign to create employment over the next 10 years. Similarly, the roll-out of anti-retroviral medication to citizens with HIV/Aids could also be targeted: a scarce commodity is an easy target for corrupt practice and in this instance, if the right people do not get the medication it may mean the difference between life and death. Such Presidential lead projects could not only save the fiscus money but also become examples of good practice. A model for implementing them that is worth considering is the Integrity Pact model.411

Law enforcement Clarity needs to be found on which agency will be responsible for investigating corruption in the SAPS, as the current model of vesting that capacity in the detective service and others is unlikely to prove effective over the long term, in any country. The ICD would be well placed to take on this function.

Local and provincial government These two areas of government are highly susceptible to corruption. Lessons need to be learnt from the IMT/JACTT process in the Eastern Cape and translated into policy. Similarly, more focus is required on local government where many suspect that the mismanagement of funds is rife. Government also needs to develop a much clearer strategy for central government intervention where it is suspected that local or provincial authorities are not doing enough to tackle the problem. This may require the establishment of a trouble-shooting unit.

Media

Media owners need to invest more in investigative journalism. This should not be restricted to the ‘serious’ publications, as there is no reason why mass circulation tabloids could not do the same given their circulation figures and advertising spend.

Parliament Following the travel scam and the arms deal, Parliamentarians now need to take their oversight responsibility seriously. Civil society and academic institutions should also be encouraged to provide MPs with research material that can assist them in this function. An overhaul of the current constituency-based electoral system may also ensure that there is more accountability between the electorate and the elected.

Party finance reform

Parliament needs to consider producing legislation that will finally legislate the private funding of political parties. Not to do so would leave a gaping hole in an otherwise well-developed anti-corruption armoury. This is necessary to ensure that corruption does not creep in through the back door. Equally, a situation should be avoided where private funders have greater leverage over elected representatives than the majority of the electorate.

Post-employment restrictions Legislation must be produced to ensure that post-employment restrictions are developed for members of the Executive, senior mangers in the public sector, accounting officers involved in approving tenders and elected officials (at a national, provincial and local government level).

Procurement The Supply Chain Management Framework, once implemented, needs to be evaluated to see how effective it is in tackling corruption. Corruption in public procurement costs the public purse dearly and therefore all efforts should be made to improve this process. This should also involve civil society in the evaluation process.


South Africa 122

Public Sector Anti-Corruption Strategy

The elements of the strategy that have not yet been implemented need to be followed up urgently. What would assist in this is if the DPSA drew up a new timetable for reaching outstanding targets. This would also assist civil society in monitoring the implementation of the strategy.

Public education/awareness

The state should invest money in a concerted effort to raise public awareness of the need to combat corruption and in mechanisms for whistleblowing. This should take the form of radio, TV, print and billboard advertisements and a long-term strategy to educate school-going youth about corruption.

Research and monitoring

Civil society needs to sharpen its research capacity to focus both on monitoring the implementation of anti-corruption measures and on corruption within specific sectors – with an emphasis on those responsible for service delivery (i.e. health, policing, local government etc.).

Supporting whistleblowers and setting up hotlines

Once a national hotline has been set up, there should be a move towards phasing out other hotlines in departments and instead focusing on supporting awareness and use of the single, national hotline. This should happen in tandem with an enabling environment within which whistleblowers feel confident that they will be free from reprisal. This will require not only an overhaul of the Protected Disclosures Act (which is taking place presently), but as much a change of mindset regarding the role of whistleblowers. Once suggestion is for the NACF to provide an award for two whistleblowers every year who have shown exceptional courage (in the private sector and public sector).

The wealth gap and greed Inequality remains the hallmark of South Africa. The size of the divide means that two distinct groups are created, the majority who aspire to live a better life and those in the top tier who aspire to climb even higher as they fear the thought of living like the majority. This sort of instinct leads to a form of short-termism that encourages corruption and greed, particularly among the elite. Much is spoken of moral regeneration, and elected leaders should be exemplary in this regard and scornful of those who aspire to fabulous wealth. This may be the largest structural problem that must be tackled. It is, however, necessary to break the cycle of greed and corruption which, though they that are not uniquely South African, are particularly pronounced in this society.

Looking back - while looking forward: After a decade of democracy the political situation may have settled sufficiently to now revisit corruption involving both the state and the private sector during apartheid. An initial step may be for a specialised agency such as the NPA or SIU to undertake an initial scoping exercise of what crimes could potentially be prosecuted. Such a report would both spell out the linear nature of corruption in SA – and dispel the myth that it is only a problem of the post-democratic order. These are important lessons if the country is to learn from the past in tackling grand corruption in the public and private sector. Parliament should assist in setting the parameters of such an investigation to defuse political tensions that are likely to ensue of claims that a ‘hidden agenda’ is at play. Parliament should also ensure that civil society, the faith based community and business are consulted when considering to investigate such matters to achieve broad consensus in such an approach.


South Africa 123

In summarising these many and varied recommendations three factors need to receive particular attention by anti-corruption practitioners in the public sector, business and civil society. These are:

Legislative reform and implementation Where we have a good solution, energy must be invested in implementation. This is the collective responsibility of every individual. Where the law is imperfect efforts must be made to continuously adapt and reform it. This will always remain necessary given the fact that many measures have not been tested in the same contexts elsewhere and given the changing nature of corruption in South Africa in the future.

Organisational restructuring No bureaucracy holds all the answers to combating corruption. This study has shown that the current model of co-ordination is possibly only successful because a number of competent state agencies exist to combat corruption. It is not clear how co-ordination has strengthened the capacity and effectiveness of these agencies, if at all. The debate around the single anti-corruption agency model needs to be revisited. If the single agency model is not appropriate, then good reasons for this need to be provided. The capacity of key oversight institutions also requires continuous attention to ensure that they continue to fulfil their constitutional mandate.

Personal integrity ‘Greed is good’ must not be allowed to become the motto of a highly divided society. This threatens any notion of long-term stability and social cohesion. Matched with this is the requirement for ethical practice by individuals in business, government and civil society. Assets need to be disclosed and sweeteners rejected where these may result in a conflict of interest. Leaders in all sectors of society need to recognise that where they fail in this regard, or do not support whistleblowers, or do not speak out against corruption, they are failing the post-apartheid democratic order. Public education and awareness raising must be prioritised to promote the participation of all South Africans in combating corruption.

Corruption is not the national priority. However, it remains one of the issues that can effectively undermine efforts to deal with all other national priorities. If not kept in check it will stunt economic growth, hamper service delivery to the poor and undermine efforts to tackle HIV/Aids and poverty. It remains a collective concern and one of the largest challenges facing the country a decade after the dawn of democracy.


South Africa 124

Endnotes 1 Launch of the SA Government/UNODC Country Corruption Assessment Report, Parliament, Cape Town, April 2003

2 Former editor of the now defunct newspaper ‘ThisDay’

3 Source?

4 Makhanya, editor of the Sunday Times wrote in his former capacity as Editor of the Mail & Guardian

5 www.southafrica.info Accessed on 27 November 2003

6 The Constitution of the Republic of South Africa (1996)

7 www.southafrica.info Accessed on 27 November 2003

8 www.pmg.org.za Accessed on 20 June 2004

9 Ibid

10 Ibid

11 www.gov.za Accessed 20 November 2003

12 The Constitution of the Republic of South Africa (1996)

13 OPSC, A review of South Africa’s National Anti-Corruption Agencies, Public Service Commission, Pretoria, August 2001

14 DSO and Scorpions are used interchangeably in this report.

15 SAHRIT, Media Report: Reporting Corruption in South Africa, Human Rights Trust of Southern African, Harare, 2003

16 SAIRR, South Africa Survey 2002/2003, South African Institute of Race Relations, Creda Communications, Cape Town. 2003. The UN Aids figure is the low estimate (11%) while World Watch is the source of the low figure (21%)

17 See, Terreblanche, Sampie. A History of Inequality in South Africa 1652-2002, University of Natal Press, Pietermaritzburg, 2002

18 Noseweek Magazine, Issue 15, April/May 1997

19 ANC, Ethical Transformation: ANC Statement on the Moral Renewal of the Nation. Issued by the National Executive Committee of the African National Congress, Marshalltown, 1998

20 Remarks by Frene Ginwala, Speaker of Parliament, to the Global Forum II, opening Session, May 28 2001, The Hague. www.gca-cma.org Accessed on 18 November 2003.

21 See: Marais, Davon. Patronage in South Africa. SAIPA Vol. 25 (No. 2) South Africa. 1990

22 Ibid: Quoted from Hillegas H.C. 1899. The Boers in War. New York: Appleton and Co.

23 Ibid: Quoted from Nathan M. 1941. Paul Kruger: His life and times. Durban: Knox Publishers.

24 See: van Vuuren, Hennie. South Africa case-study. Paper commissioned for the Kenya Meeting on New Anti-Corruption Governments. Government of Kenya, TI-Kenya & Transparency International. 11-13 October 2004. Nairobi, Kenya

25 Lodge, Tom. Politics in South Africa from Mandela to Mbeki, David Philipp, Cape Town, 2002

26 See: Wilkins, Ivor and; Strydom, Hans. The Super-Afrikaners. Jonathan Ball Publishers, Johannesburg. 1980

27 Ibid

28 Hyslop, John. Political Corruption: Before and after apartheid. Wits Institute for Social and Economic Research (WISER) Annual Workshop, University of the Witwatersrand, Johannesburg, 14-18 July 2003

29 Ibid

30 Ibid


South Africa 125

31 See reports of the Truth and Reconcilliation Commission for some of these details.

32 Ibid

33 Ibid

34 See: O’Meara, Dan. Forty Lost Years: The apartheid state and the politics of the National Party, 1948-1994. Ohio University Press & Ravan Press. Randburg – South Africa. 1999

35 This Box draws heavily on a paper presented by the author in September 2004: van Vuuren, Hennie. South Africa. Paper Commissioned for the Keya Meeting on New Anti-Corruption Government. Co-Organised by the Government of Kenya, TI-Kenya and Transparency International. 11-13 October 2004. Nairobi, Kenya

36 Op Cit, Lodge (2002)

36 See: The records of the TRC www.truth.org.za accessed 25 September 2004

38 Lodge, Tom. Politics in South Africa from Mandela to Mbeki, David Philipp, Cape Town, 2002 39 See: Idasa Reports on the Arms Deal: www.idasa.org.za

40 Public Protector of South Africa, Auditor-General, National Prosecuting Authority. Joint Investigation Report into the Strategic Defence Procurement Packages. Cape Town. November 2001

41 Source?

42 See: Umqol’uphandle – SA Corruption Briefing, Issue 09, ISS, (21 October 2003). Originally reported in Business Day. www.iss.org.za

43 See Umqol’ uphandle – SA Corruption Briefing, Issue 14, ISS, (02 April 2004). Originally reported in the Herald (23 February 2004). www.iss.org.za

44 See: Umqol’uphandle – SA Corruption Briefing, Issue 13, ISS, (20 February 2004). Originally reported in Business Day www.iss.org.za

45 See: Umqol’uphandle – SA Corruption Briefing, Issue 04, ISS, (09 June 2003). Originally reported in the Mail & Guardian www.iss.org.za

46 See: Umqol’uphandle – SA Corruption Briefing, Issue 05, ISS, (27 June 2003). Originally reported in the Mail & Guardian www.iss.org.za

47 See: Mboyabe, Sphiwe ‘ Road Fund losing R1bn a year to fraud’ in Business Day, Johannesburg, 19 August 2004

48 Source?

49 Ibid

50 See: Umqol’uphandle – SA Corruption Briefing, Issue 13, ISS (20 February 2004), Originally reported in the Herald www.iss.org.za

51 Allan, Colm; Mattes, Rob and Millie, Unathie. Government Corruption seen from the inside – A Survey of Public Officials’ Perceptions of Corruption in the Eastern Cape. PSAM Research Series No1. PSAM 2002

52 Ibid

53 See: Umqol’uphandle – SA Corruption Briefing, Issue 13, ISS (20 February 2004), Originally reported in Moneyweb www.iss.org.za

54 See: Umqol’uphandle – SA Corruption Briefing, Issue 06, ISS (20 July 2003), Originally appeared in Independent Online www.iss.org.za

55 See: Seepe, Jimmy. ‘Shilowa, Moloketi clash over tender’. City Press. Johannesburg. 05 September 2004

56 See: Rose, Rob. DA Fears Moloketi will ‘wriggle off hook’ as police probe goes ahead. Business Day. Johannesburg. 09 February 2005

57 See: Umqol’uphandle – SA Corruption Briefing, Issue 15, ISS (13 May 2004), Originally reported in the Sunday Times www.iss.org.za

58 See: Ndaba, Baldwin & SAPA. ANC forgives top man who used funds for wife. Independent Online. 26 November 2004. www.iol.co.za


South Africa 126

59 See: Umqol’uphandle – SA Corruption Briefing, Issue 14, ISS (02 April 2004), Originally reported in The Star www.iss.org.za

60 Noseweek is an independent investigative magazine that specialises in cases of corruption and fraud. In the past ten years, it has established a solid reputation for reporting on corruption and fraud in the public and private sector (particularly the financial sector including banks) despite a lack of funding.

61 See: Umqol’uphandle – SA Corruption Briefing, Issue 10, ISS (25 November 2003), Originally reported in Noseweek Magazine www.iss.org.za

62 See: Sefara, Makhudu. Ex-premier in Scorpions probe. City Press. Johannesburg. 09 January 2005

63 See for example Camerer, Lala. Corruption in South Africa – Results of an expert panel survey. ISS Monograph No. 65. Institute for Security Studies, Pretoria. September 2001

64 Afrobarometer/Idasa. Perceptions of Government Corruption in South Africa. Afrobarometer Briefing paper. 10 March 2005

65 Afrobarometer/Idasa.The Changing Public Agenda? South Africans' Assessments of the Country's Most Pressing Problems. Afrobarometer Briefing paper No.5 July 2003

66 Ibid

67 Transparency International, Global Corruption Barometer, Berlin, 2004 www.transparency.org

68 SA Government/UNODC Country Corruption Assesment Report, Parliament, Cape Town, Pretoria April 2003

69 Burton, Patrick; du Plessis, Anton; Legget, Ted; Louw, Antoinette; Mistry, Duxita; van Vuuren, Hennie. National Victims of Crime Survey, South Africa 2003. ISS Monograph 101, ISS, Pretoria, July 2004

70 See G Newham and L Gomomo, Bad cops get a break: The closure of the SAPS Anti-Corruption Unit, in SA Crime Quarterly No 4, ISS, Pretoria, June 2003.

71 Ibid

72 Ibid

73 Camerer, Lala. Global Integrity Report, Center for Public Integrity, Washington D.C, USA, May 2004 http://www.publicintegrity.org/ga/

74 South Africa is ranked together with the United States, Australia, Portugal, Italy and Germany as amongst the strong countries. “Weak” scores are attributed to: Nigeria, Panama, Nicaragua, Ukraine, India, Indonesia, Namibia, Turkey, Russia and Kenya. The only to be ranked as “Very Weak” are Guatemala and Zimbabwe.

75 The Constitution of the Republic of South Africa (1996), Chapter 5, s 85 (1)(2)

76 Ibid s.84 (1)(2)

77 Ibid s.87

78 Ibid s.89(1)

79 Ibid s. 92 (1)(2)(3)(a)(b)

80 Ibid s. 96 (1)(2)(a)(b)(c)

81 Ibid s. 101 (1)(2)(3)(4)

82 Section 2(2)(c) of the Executive Members’ Ethics Act No. 82 of 1998.

83 See, Groenewald, Yolandi, ‘In the pound seats: State contracts awarded to the wives of politicians”, Mail & Guardian, 28 May 2004, quoted in Umqol’uphandle – SA Corruption Briefing, Issue 17, ISS (14 July 2004)

84 See: Umqol’uphandle – SA Corruption Briefing, Issue 17, ISS (14 July 2004), Quoted from original article in the Sunday Times, 06 June 2004, www.sundaytimes.co.za

85 See Editorial, Ibid

86 Interview with author September 2002



South Africa 127

88 See section on ‘Anti-Corruption Activities’ in this study for details of these laws

89 Op Cit, SA Constitution, Chapter 4 s.42 (3)

90 Ibid, Chapter 4 s. 55 (1)(a)(b)

91 Ibid, Chapter 4 s. 55 (2)(a)(b)

92 Buanews, “Electoral system stays for 2004”, 12 March 2003 www.southafrica.info/ess_info/sa_glance/constitution/electoralsystem.htm

93 Parliamentary Monitoring Group www.pmg.org.za 15 June 2004

94 Op Cit, SA Constitution, Chapter 4 s.56


96 See: Quintal, Angela. MP’s criticised for sounding like ‘imbongis’ to government. Cape Times, Cape Town, 13 August 2004

97 Ibid


99 See: Sole, Sam. Arms report sanitised. Mail & Guardian. Johannesburg, January 07-13, 2005




103 See: Schmidt, Michael. ‘THISDAY faces R48m suit from ANC’. ThisDay. Johannesburg. 17 September 2004

104 See: van Gass, Chris. Scorpions let agents follow MP’s with deal. Business Day. Johannesburg. 21 February 2005

105 See: Dawes, Nic. Travelgate report nails agency. Mail & Guardian. Johannesburg. 04 March 2005

106 See: ‘At least 20 MP’s linked to R1m travel scam’ in Umqol’ uphandle – SA Corruption Briefing 06, 23 July 2003 (Original article in Independent Online)

107 See: Bezuidehout Jessica and wa Africa, Mzilikazi. SAA backs up fraud finding, Sunday Times, Johannesburg, 7 December 2003

108 See: ‘Jet-setting MP's sign secret IOU’ in Umqol’uphandle – SA Corruption Briefing 12, 21 Janury 2003 – Fully article in the Sunday Times.

109 See: Merten, Marianne. Scorpions close in on MP’s. The Mail & Guardian, Johannesburg, 20 July – 05 August 2004

110 See: Mzilikazi wa Afrika, One in four MPs probed over travel scam, Sunday Times, Johannesburg, 01 August 2004

111 See: Merten, Marianne, Listing Dangerously, Mail & Guardian, Johannesburg, 06 August 2004

112 See: Quintal, Angela, “Parliament ‘open to fraud’ from suppliers and staff’ Cape Times, Cape Town, 13 August 2004

113 Ibid

114 Ibid

115 See: Boyle, Brendan. Service, not status, is what being a public servant should be all about. Sunday Times, Johannesburg, 15 August 2004

116 See: Haffejee, Ferial. Take a taxi, ek se! Mail & Guardian, Johannesburg, 13-19 August 2004. Ek se translated from its original Afrikaans means literally “I say”

117 See: wa ka Ngobeni, Wissani; Gedye, Lloyd & Letsoalo, Matume. MPs who tried to cover their assets. Mail & Guardian. Johannesburg. 03-09 September 2004

118 wa ka Ngobeni, Wisani. All(pay) in the family. Mail & Guardian. Johannesburg. 17-22 Septmber 2004

119 See: Haffejee, Ferial. Editoria. A whole new can of worms. The Mail & Guardian. Johannesburg. 17-22 September 2004


South Africa 128

120 Op Cit: Mps who tried to cover their assets

121 See: Boyle, Brendan. New Speaker worries about harsh spotlight on corruption. Sunday Times, Johannesburg, 18 July 2004

122 Ibid.




126 Op Cit: Angela Quintal, “Mps’s criticised for sounding like ‘imbongi’s for government’.



129 IEC Annual Report, for the financial year ended 31 March 2003

130 Ibid


132 Herzenberg, Collette, Idasa Position Paper: Regulation of private funding to political parties. Idasa, Pims-SA. October 2003

133 Interview with the author September 2002


135 Op Cit, SA Constitution, Chapter 9, s 190 (1)(2)

136 Electoral Commissions Act, No.51 of 1996

137 Op Cit IEC Annual Report

138 SA Constitution, Chapter 9, S. 181 (1)

139 Ibid, S. 188 (2)

140 Ibid, S. 188 (3)

141 Public Finance Management Act, No. 1 of 1999, s. 62(4)(b)

142 Quintal, Angela. Scopa wants to alter apartheid law. ThisDay, Johannesburg, 14 November 2003

143 Op Cit. OPSC 2001

144 PSC, Review of South Afroca’s National Anti-Corruption Agencies, Pretoria, August 2001

145 Interview with Gavid Woods

146 Dawes, Nic, Fakie says state accounts in mess, ThisDay, Johannesburg, 14 November 2003

147 Ibid

148 Ibid

149 AGSA, General Report on the Audit outcomes of the year ended 31 March 2003, Pretoria, 2004

150 Ibid

151 Ibid

152 AGSA, Activity report for the financial year 2002-2003, Pretoria, 2004

153 Ibid

154 Ibid




158 Ibid

159 Ibid


South Africa 129

160 Op Cit, SA Constitution, Chapter 8 (165)

161 Ibid s. 165 ((3)(5)

162 Ibid, s. 167 (1)(3)(4)(5)

163 Ibid s. 168

164 Ibid s. 169

165 Ibid s.170

166 See: Department of Justice website (Description of SA Court Structures): http://www.doj.gov.za <Accessed on 12 March 2005>

167 Ibid, s. 174

168 Justice & Constitutional Development ad hoc committee (National Assembly): Justice Budget: Input by Court Services, Masters’s Unit, Department of Justice & Constitutional Development, State Law Advisors, and human resources. 08 June 2004. www.pmg.org.za <accessed 21 June 2004>

169 Ibid

170 Ibid

171 Ibid

172 Op Cit. SA Government, UNODC, 2003

173 Maduna, Penuell. Budget Vote Address, Parliament, 17 June 2003

174 Op Cit, Portfolio Committee Minutes, 08 June 2004

175 Ibid

176 See: <www.iss.org.za>

177 Benjamin, Chantelle. Court officials face fraud exposure. Business Day. 21 July 2003

178 Ibid

179 See: Lombard Edwin et al. Criminals target judiciary. Sunday Times. Johannesburg 12 September 2004

180 Ibid

181 Ibid

182 Ibid

183 Ibid

184 See: Umqol’uphandle – SA Corruption Briefing, Issue 07, ISS (15 August 2003), www.iss.org.za 'Bad guys' ripped off R100m from poor - Originally appeared The Star

185 See: Umqol’uphandle-SA Corruption Briefing, Issue 15 (13 May 2004), www.iss.org.za, Original article appeared in The Argus (26 March 2004) ‘ R267m claimed against crooked lawyers.’

186 See: Umqol’uphandle-SA Corruption Briefing, Issue 03 (23 May 2003), www.iss.org.za, Original article appeared in Business Day “Judges may be forced to declare assets”

187 Ibid

188 See: Moya, Fikile-Ntisikilelo. The numbers game. The Mail & Guardian. Johannesburg. 14-20 January 2005

189 Maduna, Penuell. Op Cit

190 BAC/DOCD Press Release. 24 January 2003

191 E-mail correspondence from Superintendent Jenny Cunningham (SAPS) 11 December 2003

192 Ibid

193 Telephone discussion with Ms. Nomusa Mawela, Manager: Renumerations Policy, DPSA, 23.07.04)

194 SA Constitution, Chapter 10

195 Public Service Commission Annual Report 2002/03, Pretoria, 2003


South Africa 130

196 see: www.psc.gov.za Accessed 14 July 2004

197 Ibid

198 Op Cit, PSC Annual Report 2002/03



201 Ibid

202 Public Service Commission, State of the Public Service Report – 2004, PSC, Pretoria, 2004

203 See: Public Service Commission, State of the Public Service Report – 2005, Pretoria, February 2005 204 See: Levin, Richard M., Financial Disclosures and Conflict of Interest: The case for strengthening and amending the current regulatory regime. Paper presented at the Senior Management Services Conference. 15-17 September 2003

205 Public Service Commission, The PSC News, Dec 2003/Jan 2004 Vol 1. No. 1

206 See: Monare, Moshoeshoe. Move to enforce cooling off period for public servants. Cape Times. Cape Town. 11 November 2004 in Umqol’uphandle – SA Corruption Briefing 21 (14 December 2004)

207 Op Cit, SA Constitution, s.205(3)

208 Ibid, s.208

209 South African Police Services, Report to the Parliamentary Portfolio Committee on Safety & Security, 26 May 2004, Power Point Presentation

210 South African Police Services Annual Report 2002/03, Pretoria, 2004

211 Op Cit E-mail, Cunningham.

212 Op Cit, SAPS Annual Report 2002/03

213 South African Police Services Annual Report 2003/04, Pretoria, 2004

214 Op Cit, SAPS Annual Report 2003/04

215 Transparency International, Global Corruption Barometer – 2003. TI, Berlin, 03 July 2003

216 Annual Report of the National Commissioner of the South African Police Service (01 April 2001 – 31 March 2002) Pretoria, 2003

217 Ibid

218 Opcit, SAPS Annual Report 2002-2003, Quoted verbatim

219 Ibid

220 Ibid

221 Interview with Steff Grobler, Head of the SAPS ACU, November 2002

222 OPSC, A review of South Africa’s National Anti-Corruption Agencies, Public Service Commission, Pretoria, August 2001

223 McKenzie, Karen, Report to the Parliamentary Portfolio Committee on Safety and Security on behalf of the ICD, 02 June 2004

224 Ibid

225 Op Cit, SA Constitution, s.179 (1)

226 National Prosecuting Authority Act No. 39 of 1998, Section 32(1).

227 See: Bruce, Peter. The end of an era (interview with Bulelani Ngcuka), Financial Mail, Johannesburg, 30 July 2004

228 See NPA website www.npa.gov.za <accessed on 07 July 2004>

229 Ibid

230 See: Umqol’uphandle – SA Corruption Briefing, Issue 06, ISS (20 July 2003), Originally appeared in Independent Online www.iss.org.za Original article in Business Day ‘Keeping Enforcers free from temptation’


South Africa 131

231 Ibid

232 Section 217(I), Constitution of the Republic of South Africa, Act 108 of 1996.

233 Interview with Mr. Henry Malinga. Director of Supply Chain Management Policy. National Treasury. 18 December 2003

234 Ibid

235 Interview with author – 18 December 2003

235 Levin, Richard Financial Disclosure and conflict of interest: The case for strengthening and amending the current regulatory regime. SMS Conference, 15-17 September 2003

235 Finance Week, Management crooks cost SA business R48bn/year, Finance Week, Johannesburg, 23 July 2003

236 These points are quoted from a document entitled: “Overview: Promulgation of a framework for supply chain management” Available on the National Treasuries website: www.treasury.gov.za <Accesed 15 July 2004>

237 Ibid: Interview with Henry Malinga

238 Under Section 181(1)(c).

239 Op Cit, SA Constitution 181(c)

240 Public Protector Act, No. 23 of 1994, s. 6(1)

241 Ibid, s. 6(3)

242 Ibid, s.6(4)

243 Public Protector of RSA, Presentation before the Portfolio Committeee on Justice & Constitutional Development, Parliament (10 June 2004)

244 Mushwana, L. Presentation before the Portfolio Committee on Justice and Constitutional Development, Parliament, Cape Town, 12 June 2003,

245 E-mail comment from Mamiki Mosheshe, 12 December 2003

246 Ibid

247 Public Protector of South Africa. Annual Report 01 April 2003 – 31 March 2004. Office of the Public Protector. Pretoria. 2004

248 Ibid

249 Ibid


251 Sefara, Makhudu, ‘Watchdog or lapdog? SA’s public protector faces heat’. Cape Argus, Cape Town, 16 July 2004

252 Ibid

253 Ibid

254 See: Vapi, Xolisa. Public Protector Changed Tune. Sunday Times, Johannesburg. 27 June 2004

255 Op Cit: see PSC Review of SA’s anti-corruption agencies

256 Ibid, see page 5

257 Ibid

258 See : Special Investigations Unit Report (Draft) 2002/04

259 Op Cit: see PSC Review of SA’s anti-corruption agencies

260 See: SIU Draft report 2003/04, Presented in Parliament 18 June 2004 www.pmg.org.za

261 Ibid

262 Ibid

263 Ibid – See Report from the Head of the Unit

264 Ibid


South Africa 132

265 Ibid

266 Ibid

267 Ibid

268 See: Mabuza, Ernest. Special unit busts crime for government. Business Day, Johannesburg 19 August 2004

269 Ibid

270 Reported on SABC Radio in the last week of July 2004

271 See: Minutes of the Portfolio Committee on Justice and Constitutional Development. Justice budget: input by units of the National Prosecuting Authority, 18 June 2004. As reported by the Parliamentary Monitoring Group www.pmg.org.za

272 Ibid

273 Op Cit PSC Review…

274 See: NPA Amendment Act

275 See: Redpath, Jean. The Scorpions – Analysing the Directorate of Special Operations, ISS Monograph 96, Pretoria, March 2004

276 Presentation by Advocate Leonard McCarthy to Parliament on 18 June 2004 – “the Directorate of Special Operations” as part of the annual report submitted to Parliament by the National Prosecuting Authority

277 See: the NPA Website, www.npa.gov.za accessed 17 July 2004

278 Op Cit. Redpath, Jean

279 Ibid

280 Op Cit – Presentation by Advocate Leonard McCarthy

281 Ibid

282 Op Cit: See Jean Redpath, Pg. 53

283 Op Cit: National Prosecuting Authority Report to Parliament 2002/03

284 Ibid

285 Ibid

286 See: Editorial. Scorpions get stung. Financial Mail. 01 August 2003

287 Op Cit: of the Portfolio Committee on Justice and Constitutional Development. Justice budget: input by units of the National Prosecuting Authority, 18 June 2004. As reported by the Parliamentary Monitoring Group www.pmg.org.za

288 Public Briefing by Advocate Leonard McCarthy at the ISS Pretoria office on 27 May 2004

289 See: Boyle, Brendan; Msomi, S’Thembiso; Mahlangu, Dominic; Lubisi, Dumisane. Mbeki, Zuma battle over Scorpions. Sunday Times. Johannesbirg. 20 February 2005

290 See: Mthshali, Thokozani. ANC slams Travelgate ‘circus’. The Star. Johannesburg. 04 February 2005

291 Op Cit: See Redpath, Jean

292 Ibid

293 Please provide full bibliographical details – author’s name, title of publication etc. (ISS Mono. 96, 2004)

294 Op Cit: See PSC Review of National Anti-Corruption Agencies, Pg. 48

295 Op Cit; See Minutes of the Justice Portfolio, 18 June 2004 as reported by the PMG

296 Ibid

297 Ibid

298 Op Cit: Presentation by McCartht at the ISS Pretoria office, 27 May 2004


South Africa 133

299 See: Minutes of the Portfolio Committee on Justice and Constitutional Development. Justice budget: input by units of the National Prosecuting Authority, 18 June 2004. As reported by the Parliamentary Monitoring Group www.pmg.org.za

300 Op Cit: Public Service Commissionreview of SA’s anti-corruption agencies

301 See: Annual Report of the Asset Forfeiture Unit as presented to Parliament on 18 June 2004. Draft 01, 10 May 2004

302 Ibid

303 Ibid

304 Ibid

305 Ibid

306 Ibid

307 Ibid

308 Ibid

309 Ibid

310 Ibid

311 Op Cit: Minutes of the Portfolio Committee on Justice and Constitutional Development. Justice budget: input by units of the National Prosecuting Authority –Presentation by the Asset Forfeiture Unit, 18 June 2004. As reported by the Parliamentary Monitoring Group www.pmg.org.za

312 See: Commonwealth Press Union Report on South Africa. www.cpu.org.uk <Accesed on 13 August 2004>

313 See: Mail & Guardian reporter ‘What the Sankie ruling means’, Mail & Guardian, Johannesburg 06-12 August 2004

314 Ibid

315 Op Cit: See Berger, Guy (2004)

316 See: IFEX& FXI, South Africa Apartheid Laws Hamper Free Expression, 12 May 2004. As cited in Africa ICT Policy Monitor, http://Africa.rights.apc.org , 12 August 2004

317 See: “Spymasters Dismay FXI, SA archives”, 29 October 2003, www.polity.org.za <12 August 2004> Original copy produced by SAPA

318 See: “Spymasters Dismay FXI, SA archives”, 29 October 2003, www.polity.org.za <12 August 2004> Original copy produced by SAPA

319 See: Kimani Ndung’u, Simon, Third progress report to the Open Society Foundation for South Africa, Anti-censorship Programme: Freedom Freedom of Expression Institute, March 2004

320 See, Berger, Guy, ‘State of the media in South Africa –2003’ in ‘So this is Democracy? – State of media freedom in Southern Africa, 2003’, Media Institute of Southern Africa, Windhoek, 2004

321 ANC Today, Letter from the President – Our country needs facts not groundless allegations, Vol. 3, No. 21, 30 May-5 June 2003

322 Ibid

323 Ibid

324 Op Cit, Berger 2004

325 Ibid.

326 Op Cit, Sahrit 2003

327 Ibid

328 Ibid

329 Ibid

330 Core/T-SA “Corruption and Governance: A Media Profile” Community Agency for Social Enquiry (CASE), Braamfontein, December 2000.


South Africa 134

331 C.J. Steenkamp, Research Report: Making Public Corruption in South Africa – An analysis of media reports on corruption over the period 01 November – 31 December 2001, J.P Landman and Associates, Cape Town, June 2002

332 See: Barron, Chris: Echoing their master’s voice, Sunday Times, Johannesburg, 25 July 2004

333 Op Cit: Berger Guy (2004)

334 Naidu, Edwin, SABC in ‘war of independence’ Sunday Independent, 11 July 2004

335 Ibid

336 Swilling, Mark; Russell Bev,The Size and Scope of the Non-Profit Sector in South Africa, Wits University P&DM/University of Natal Centre for Civil Society. 2002

337 Julia Motapola, Researcher at OSF-SA reported in a telephone conversation that of 25 NGO’s and Advice centers consulted in Limpopo province last year none identified corruption as a major developmental concern – rather highlighting issues such as gender discrimination, tribalism, racism, health, education etc. However, when further probed all felt that corruption was key to undermining attempts to tackle the concerns raised.

338 IDASA/Co-operative for Research and Education (CORE) ‘The State of Civil Society in South Africa’ July 2001

339 The Human Sciences Research Council (HSRC-Prodder) and Transparency South Africa (TSA) planned to produce an inventory of what various NGO’s are doing in combating corruption – if developed up this could prove a very useful instrument.

340 van Vuuren, Gaushe, Arendse (eds) Umqol’Uphandle SA Corruption Briefing 006, Institute for Security Studies, 23 July 2003. <www.iss.org.za/corruption>

341 Public Service Commission, Fighting Corruption –Towards a National Integrity Study, Stan Sangweni and Daryl Balia (eds.) UNISA, South Africa1999

342 See: Resolutions of the 8th Cosatu Congress, 15-18 September 2003 www.cosatu.org http://www.cosatu.org/ <accessed 14 August 2004>

343 For the Church Community Leadership Trust (CCLT) and the Ecumenical Service Socio-Economic Transformation (ESSET) assisted in organizing the National Civil Society Workshop in August 2000.

344 Including: Hindu Maha Salha, United Orthodox Synagogues, South African Council of Churches (SACC), African Traditional Religion, Bahai Faith, Council of Independent Churches, United Ulama Council of SA (Muslim community), Buddhist

345 Telephone interview – Ms. Zandile Mdhladhla, National Co-Coordinator of the MRM, 24.03.03

346 Willow Park Conference Centre, Gauteng, 27 February –01 March 2002.

347 See www.psam.ru.ac.za also www.myrights.org.za

348 See Pims-SA, Government Ethics in Post-Apartheid South Africa. Idasa-Pims, Cape Town, November 2003

349 See www.iss.org.za/corruption

350 See: Hooper-Box, Caroline. Institute sounds alarm bells over freedom to protest’. Sunday Independent April 2004

351 Op Cit: SA Conbstitution Chapter 3 s. 41 (1)h

352 See: D Burger(ed) South Africa Yearbook 2002/03 Government Communication and Information System, 2002 (as quoted on www.gov.za accessed on 30 July 2004)

353 Ibid

354 Ibid

355 Ibid

356 Ibid

357 Election statistics as per the Independent Electoral Commissions website www.elections.org.za <accesed on 10 August 2004

358 Op Cit: Burger, D (ed)

359 See: www.psam.ru.ac.za <accesed 08 December 2003> Figures are for the 2003/04 budget


South Africa 135

360 See: Briefing by Minister Geraldine Fraser-Moloketi to the Portfolio Committee on Public Service and Administration (11 August 2004) – Powerpoint presentation e-mailed to the author of this report.

361 See: Report: Work of the Interim Management Team in the Eastern Cape Nov. 2002-March 2003. DPSA/E-Cape Government. August 2004

362 Ibid

363 Ibid

364 Op Cit: National Prosecuting Authority Report 2002/03

365 Ibid

366 Ibid

367 Presentation to the Portfolio Committee on Public Service and Administration by the Public Service Commission in January 2004

368 Alan, Colm. Independent Monitoring, the media and governments efforts to combat corruption in South Africa: The need for cooperation” presented at Global Forum III on fighting corruption and safeguarding integrity 29-31 May 2003, Seoul, South Korea

369 Op Cit. Banda. 2003

370 Ibid

371 Op Cit: SA Constitution, Chapter 7, s 151 (1-4)

372 Op Cit: Burger, D (ed)

373 Ibid

374 Department of Local and Provincial Government, Local Government Anti-Corruption Strategy, Action Plan March 2003 – March 2004, DPLG, 2003

375 Ibid

376 Ibid

377 Ibid

378 See: Municipal Finance Management Act (no. 56 of 2003), s.112 (l)(i)

379 Op Cit OPSC Review of National Anti-Corruption Agencies. August 2001

380 Interview with author, September 2003

381 Ibid

382 Interview between author & Kevin Wakeford, October 2002

383 See: The Cape Times, White-collar criminals robbing SA of up to R150bn a year, Independent Newspapers, Cape Town, 27 November 2003

384 The Cape Times, White-collar criminals robbing SA of up to R150bn a year, Independent Newspapers, Cape Town, 27 November 2003

385 SA Government/UNODC Country Corruption Assessment Report: South Africa, Pretoria, April 2003

386 Ibid

387 Interview with author, September 2002

388 See www.iod.org.za

389 Interview between author and Richard Wilkinson, September 2002

390 Ibid.

391 Ibid

392 Op Cit, Wakeford

393 Landman et al, Corporate Ethics Indicator – 2002, Ethics Institute of SA, Pretoria, 27 November 2002

394 See: Forbes Magazine. The World’s Richest People 2005. USA February 2005. <www.forbes.com>

395 See: Philp, Rowan, Big boom in SA's super-rich, Sunday Times, Johannesburg 09 May 2004


South Africa 136

396 Ibid

397 Ibid

398 See: Davie, Kevin. Stinking Rich, ThisDay, Johannesburg, 04 August 2004

399 Ibid

400 Ibid

401 See: Brummer, Stefaans. SA denied knowledge. The Mail & Guardian. Johannesburg. 24-30 September 2004

402 See: Kitshoff, Ruan, Survey on measures to combat corruption - prepared for the Commonwealth Survey. Department of Public Service and Administration: Anti-Corruption Unit, Pretoria, 2001

403 Ibid, Kitshoff

404 See: Department of Public Service and Administration, Public Sector Anti-Corruption Strategy, DPSA, Pretoria, January 2002

405 Ibid

406 DPSA/Anti-Corruption Co-ordinating Committee. Minimum Anti-Corruption capacity for departments and organisational components in the Public Service. Presented in Parliament. 12 November 2004. <www.pmg.org.za>

407 E-mail interview with Lorraine Stober, ODAC Helpline manager – and whistleblowing expert, 20 August 2004

408 Ibid – see Interview with Lorraine Stober

409 Ibid

410 Op Cit” Public Service Anti-Corruption Strategy

411 The TI Integrity Pact, which has been successfully implemented in numerous developing and developed countries, attempts to bind governments and businesses in a legal agreement to ensure that procurement processes are corruption free. This requires all companies tendering for a public contract to sign an agreement – together with the government/public sector agency – that states that should any party pay a bribe they will be automatically excluded from the contract and certain penalties will be imposed. An important aspect is that civil society monitors the implementation of this agreement. For more details see: www.transparency.org


South Africa 137

References Afrobarometer/Idasa. The Changing Public Agenda? South Africans' Assessments of the Country's Most Pressing Problems. Afrobarometer Briefing paper No. 5 July 2003

Afrobarometer/Idasa. Perceptions of Government Corruption in South Africa. Afrobarometer Briefing paper. 10 March 2005

Allan, Colm. Independent Monitoring, the media and governments efforts to combat corruption in South Africa: The need for cooperation” presented at Global Forum III on fighting corruption and safeguarding integrity 29-31 May 2003, Seoul, South Korea

Allan, Colm; Mattes, Rob and Millie, Unathie. Government Corruption seen from the inside – A Survey of Public Officials’ Perceptions of Corruption in the Eastern Cape. PSAM Research Series No1. PSAM 2002

ANC, Ethical Transformation: ANC Statement on the Moral Renewal of the Nation. Issued by the National Executive Committee of the African National Congress, Marshalltown, 1998

Asset Forfeiture Unit, Annual Report of the Asset Forfeiture Unit as presented to Parliament on 18 June 2004. Draft 01, AFU, 10 May 2004

Auditor General of South Africa, General Report on the Audit outcomes of the year ended 31 March 2003, AGSA, Pretoria, 2004

Auditor General of South Africa, Activity report for the financial year 2002-2003, AGSA, Pretoria, 2004

Balia, Daryl & Sangewni, Stan (eds.) Public Service Commission, Fighting Corruption –Strategies for Prevention, UNISA, Pretoria South Africa, 1999

Banda, Lorato (Pims-SA), Government Ethics in Post-Apartheid South Africa. Idasa-Pims, Cape Town, November 2003

Barron, Chris. Echoing their master’s voice, Sunday Times, Johannesburg, 25 July 2004

Benjamin, Chantelle. Court officials face fraud exposure. Business Day. 21 July 2003

Berger, Guy, ‘State of the media in South Africa –2003’ in ‘So this is Democracy? – State of media freedom in Southern Africa, 2003’, Media Institute of Southern Africa, Windhoek, 2004

Bezuidehout Jessica and wa Africa, Mzilikazi. SAA backs up fraud finding, Sunday Times, Johannesburg, 7 December 2003

Boyle, Brendan. New Speaker worries about harsh spotlight on corruption. Sunday Times, Johannesburg, 18 July 2004

Boyle, Brendan. Service, not status, is what being a public servant should be all about. Sunday Times, Johannesburg, 15 August 2004

Boyle, Brendan; Msomi, S’Thembiso; Mahlangu, Dominic; Lubisi, Dumisane. Mbeki, Zuma battle over Scorpions. Sunday Times. Johannesbirg. 20 February 2005


South Africa 138

Bruce, Peter. The end of an era (interview with Bulelani Ngcuka), Financial Mail, Johannesburg, 30 July 2004

Brummer, Stefaans. SA denied knowledge. The Mail & Guardian. Johannesburg. 24-30 September 2004

Buanews, “Electoral system stays for 2004”, Pretoria, 12 March 2003

Burger, D (ed) South Africa Yearbook 2002/03, Government Communication and Information System, Pretoria, 2002

Burton, Patrick; du Plessis, Anton; Legget, Ted; Louw, Antoinette; Mistry, Duxita; van Vuuren, Hennie. National Victims of Crime Survey, South Africa 2003. ISS Monograph 101, ISS, Pretoria, July 2004

Business Against Crime/Department of Justice, Press Statement: Opening of the Johannesburg Specialised Crime Court. 24 January 2003

Calland Richard, The First Five Years: A review of South Africa’s Democratic Parliament. IDASA, Cape Town 2000

Camerer, Lala. Corruption in South Africa – Results of an expert panel survey. ISS Monograph No. 65. Institute for Security Studies, Pretoria. September 2001

Camerer, Marianne, Global Access Project, Center for Public Integrity, Washington DC, 2004

C.J. Steenkamp, Research Report: Making Public Corruption in South Africa – An analysis of media reports on corruption over the period 01 November – 31 December 2001, J.P Landman and Associates, Cape Town, June 2002

Core/T-SA, Corruption and Governance: A Media Profile, Community Agency for Social Enquiry (CASE), Braamfontein, December 2000.

Davie, Kevin. Stinking Rich, ThisDay, Johannesburg, 04 August 2004

Dawes, Nic. Fakie says state accounts in mess, ThisDay, Johannesburg, 14 November 2003

Dawes, Nic. Travelgate report nails agency. Mail & Guardian, Johannesburg, 04 March 2005

Department of Local and Provincial Government, Local Government Anti-Corruption Strategy, Action Plan March 2003 – March 2004, DPLG, Pretoria, 2003

Department of Public Service and Administration, Public Sector Anti-Corruption Strategy, DPSA, Pretoria, January 2002

Department of Public Service and Administration /Anti-Corruption Co-ordinating Committee. Minimum Anti-Corruption capacity for departments and organisational components in the Public Service. Presented in Parliament. 12 November 2004. <www.pmg.org.za>

De Waal, J., Curri, I., and Erasmus, G., The Bill of Rights Handbook (2nd edition) Kenwyn: Juta and Co, Ltd 1999


South Africa 139

Finance Week, Management crooks cost SA business R48bn/year, Finance Week, Johannesburg, 23 July 2003

Financial Mail editorial. Scorpions get stung. Financial Mail. 01 August 2003

Fölsher, Alta (ed) Budget Transparency and Participation: Five African Case Studies, IDASA: Budget Information Service 2002

Forbes Magazine. The World’s Richest People 2005. USA. February 2005. <www.forbes.com>

Ginwala, Frene, Speaker of Parliament, to the Global Forum II, opening Session, May 28 2001, The Hague. www.gca-cma.org Accessed on 18 November 2003.

IDASA/Co-operative for Research and Education (CORE) ‘The State of Civil Society in South Africa’ July 2001

Haffejee, Ferial. Editorial. Take a taxi, ek se! Mail & Guardian, Johannesburg, 13-19 August 2004.

Haffejee, Ferial. Editorial. A whole new can of worms. The Mail & Guardian. Johannesburg. 17-22 September 2004

Herzenberg, Collette, Idasa Position Paper: Regulation of private funding to political parties. Idasa, Pims-SA. October 2003

Hooper-Box, Caroline. Institute sounds alarm bells over freedom to protest’. Sunday Independent, Johannesburg, April 2004

Hyslop, John. Political Corruption: Before and after apartheid. Wits Institute for Social and Economic Research (WISER) Annual Workshop, University of the Witwatersrand, Johannesburg, 14-18 July 2003

IFEX & FXI, South Africa Apartheid Laws Hamper Free Expression, 12 May 2004. http://Africa.rights.apc.org

Justice & Constitutional Development ad hoc committee (National Assembly): Justice Budget: Input by Court Services, Masters’s Unit, Department of Justice & Constitutional Development, State Law Advisors and human resources. Parliament, 08 June 2004.

Kimani Ndung’u, Simon, Third progress report to the Open Society Foundation for South Africa, Anti-censorship Programme: Freedom Freedom of Expression Institute, March 2004

Kitshoff, Ruan, Survey on measures to combat corruption - prepared or the Commonwealth Survey. Department of Public Service and Administration: Anti-Corruption Unit, Pretoria, 2001

Landman, Willem; Punt, Willem; Painter-Morland, Mollie. Corporate Ethics Indicator. Buiness Ethics Institute of South Africa Survey. Research Report No 3. Pretoria, 27 November 2002

Levin, Richard M., Financial Disclosures and Conflict of Interest: The case for strengthening and amending the current regulatory regime. Paper presented at the Senior Management Services Conference. 15-17 September 2003

Lodge, Tom. Politics in South Africa from Mandela to Mbeki, David Philipp, Cape Town, 2002


South Africa 140

Lombard Edwin et al. Criminals target judiciary. Sunday Times. Johannesburg 12 September 2004

Mabuza, Ernest. Special unit busts crime for government. Business Day, Johannesburg 19 August 2004

Maduna, Penuell. Budget Vote Address by the Minister for Justice & Constitutional Development, Parliament, Cape Town, 17 June 2003

Mail & Guardian reporter ‘What the Sankie ruling means’, Mail & Guardian, Johannesburg 06-12 August 2004

Marais, Davon. Patronage in South Africa. SAIPA Vol. 25 (No. 2) South Africa. 1990

Mbeki, Thabo, Letter from the President – Our country needs facts not groundless allegations, Vol. 3, No. 21, 30 May- 5 June 2003

Mboyabe, Sphiwe ‘ Road Fund losing R1bn a year to fraud’ in Business Day, Johannesburg, 19 August 2004

McKenzie, Karen, Report to the Parliamentary Portfolio Committee on Safety and Security on behalf of the ICD, 02 June 2004

Merten, Marianne, Listing Dangerously, Mail & Guardian, Johannesburg, 30 July – 05 August 2004

Merten, Marianne. Scorpions close in on MPs. Mail & Guardian, Johannesburg, 30 July – 05 August 2004

Monare, Moshoeshoe. Move to enforce cooling off period for public servants. Cape Times. Cape Town. 11 November 2004

Moya, Fikile-Ntisikilelo. The numbers game. The Mail & Guardian. Johannesburg. 14-20 January 2005

Mushwana, L. Presentation before the Portfolio Committee on Justice and Constitutional Development, Parliament, Cape Town, 12 June 2003,

Naidu, Edwin, SABC in ‘war of independence’, Sunday Independent, Johannesburg, 11 July-2004

National Prosecution Authority, Report to Parliament 2002/03, NPA, Pretoria, 2003

Ndaba, Baldwin & SAPA. ANC forgives top man who used funds for wife. Independent Online. 26 November 2004. www.iol.co.za

Noseweek Magazine, Issue 15, Cape Town, April/May 1997

Philp, Rowan, Big boom in SA's super-rich, Sunday Times, Johannesburg 09 May 2004

Public Protector of RSA, Presentation before the Portfolio Committeee on Justice & Constitutional Development, Public Protector Parliament, 10 June 2004

Public Protector of South Africa. Annual Report 01 April 2003 – 31 March 2004. Office of the Public Protector. Pretoria. 2004


South Africa 141

Public Protector of South Africa, Auditor-General, National Prosecuting Authority. Joint Investigation Report into the Strategic Defence Procurement Packages. Cape Town. November 2001

Public Service Commission, A review of South Africa’s National Anti-Corruption Agencies, Public Service Commission, Pretoria, August 2001

Public Service Commission, Annual Report 2002/03, PSC, Pretoria, 2003

Public Service Commission, State of the Public Service Report – 2004, PSC, Pretoria, 2004

Public Service Commission, State of the Public Service Report – 2005, PSC, Pretoria, 2005

Public Service Commission, The PSC News, Dec 2003/Jan 2004 Vol 1. No. 1, Pretoria, January 2004

Quintal, Angela. MPs criticised for sounding like ‘imbongis’ to government. Cape Times, Cape Town, 13 August 2004

Quintal, Angela, “Parliament ‘open to fraud’ from suppliers and staff’ Cape Times, Cape Town, 13 August 2004

Redpath, Jean. The Scorpions – Analysing the Directorate of Special Operations, ISS Monograph 96, Institute for Security Studies, Pretoria, March 2004

Report: Work of the Interim Management Team in the Eastern Cape Nov. 2002-March 2003. DPSA/E-Cape Government. August 2004

Rose, Rob. DA Fears Moloketi will ‘wriggle off hook’ as police probe goes ahead. Business Day. Johannesburg. 09 February 2005

Seepe, Jimmy. ‘Shilowa, Moloketi clash over tender’. City Press. Johannesburg. 05 September 2004

Sefara, Makhudu. Ex-premier in Scorpions probe. City Press. Johannesburg. 09 January 2005

SA Government/UNODC, Country Corruption Assessment Report, Parliament, Cape Town, Pretoria April 2003

SAHRIT, Media Report: Reporting Corruption in South Africa, Human Rights Trust of Southern African, SAHRIT Harare, 2003

SAIRR, South Africa Survey 2002/2003, South African Institute of Race Relations, Creda Communications, Cape Town. 2003

SAPA, Spymasters Dismay FXI, SA Archives, SAPA 29 October 2003

South African Police Services, Annual Report of the National Commissioner of the South African Police Service (01 April 2001 – 31 March 2002), SAPS, Pretoria, 2003

South African Police Services, Report to the Parliamentary Portfolio Committee on Safety & Security, SAPS, 26 May 2004,

South African Police Services, Annual Report 2002/03, SAPS, Pretoria, 2004

South African Police Services Annual Report 2003/04, Pretoria, 2004


South Africa 142

Schmidt, Michael. ‘THISDAY faces R48m suit from ANC’. ThisDay. Johannesburg. 17 September 2004

Sefara, Makhudu, ‘Watchdog or lapdog? SA’s public protector faces heat’. Cape Argus, Cape Town, 16 July 2004

Sole, Sam. Arms report sanitised. Mail & Guardian. Johannesburg, January 07-13, 2005

Special Investigations Unit, Report (Draft) 2003/04, SIU, Parliament, 18 June 2004

Terreblanche, Sampie. A History of Inequality in South Africa 1652-2002, University of Natal Press, Pietermaritzburg, 2002

The Cape Times, White-collar criminals robbing SA of up to R150bn a year, Independent Newspapers, Cape Town , 27 November 2003

Swilling, Mark; Russell Bev, The Size and Scope of the Non-Profit Sector in South Africa, Wits University P&DM/University of Natal Centre for Civil Society. 2002

Transparency International, Global Corruption Barometer – 2004. TI, Berlin, 09 December 2004

van Gass, Chris. Scorpions let agents follow MP’s with deal. Business Day. Johannesburg. 21 February 2005

van Vuuren, Hennie. South Africa case-study. Paper commissioned for the Kenya Meeting on New Anti-Corruption Governments. Government of Kenya, TI-Kenya & Transparency International. 11-13 October 2004. Nairobi, Kenya

Van Vuuren, Hennie; Gaushe Pilisa; Sokmani, Andile (eds). Umqol’ uphandle – SA Corruption Briefing, Issue 21, Institute for Security Studies, 14 December 2004 www.iss.org.za

Van Vuuren, Hennie; Gaushe Pilisa; Sokmani, Andile (eds). Umqol’ uphandle – SA Corruption Briefing, Issue 15, Institute for Security Studies, 02 April 2004 www.iss.org.za

van Vuuren, Hennie; Gaushe Pilisa; Sokmani, Andile (eds). Umqol’ uphandle – SA Corruption Briefing, Issue 14, Institute for Security Studies, 13 May 2004 www.iss.org.za

van Vuuren, Hennie; Gaushe Pilisa; Coetzee, Cari (eds.). Umqol’uphandle – SA Corruption Briefing, Issue 13, Institute for Security Studies, 20 February 2004 www.iss.org.za

van Vuuren, Hennie; Gaushe Pilisa; Coetzee, Cari (eds.). Umqol’uphandle – SA Corruption Briefing, Issue 12, Institute for Security Studies, 21 January 2004 www.iss.org.za

van Vuuren, Hennie; Gaushe Pilisa; Arendse, Paul (eds.). Umqol’uphandle – SA Corruption Briefing, Issue 11, Institute for Security Studies, 11 December 2003 www.iss.org.za

van Vuuren, Hennie; Gaushe Pilisa; Arendse, Paul (eds.). Umqol’uphandle – SA Corruption Briefing, Issue 10, Institute for Security Studies, 25 November 2003 www.iss.org.za

van Vuuren, Hennie; Gaushe Pilisa; Arendse, Paul (eds.). Umqol’uphandle – SA Corruption Briefing, Issue 09, Institute for Security Studies, 21 October 2003 www.iss.org.za

van Vuuren, Hennie; Gaushe Pilisa; Arendse, Paul (eds.). Umqol’uphandle – SA Corruption Briefing, Issue 08, Institute for Security Studies, 18 September 2003 www.iss.org.za


South Africa 143

van Vuuren, Hennie; Gaushe Pilisa; Arendse, Paul (eds.). Umqol’uphandle – SA Corruption Briefing, Issue 07, Institute for Security Studies, 15 August 2003 www.iss.org.za

van Vuuren, Hennie; Gaushe Pilisa; Arendse, Paul (eds.). Umqol’uphandle – SA Corruption Briefing, Issue 06, Institute for Security Studies, 23 July 2003 www.iss.org.za

van Vuuren, Hennie; Gaushe Pilisa; Arendse, Paul (eds.). Umqol’uphandle – SA Corruption Briefing, Issue 05, Institute for Security Studies, 27 June 2003 www.iss.org.za

van Vuuren, Hennie; Gaushe Pilisa; Arendse, Paul (eds.). Umqol’uphandle – SA Corruption Briefing, Issue 04, Institute for Security Studies, 09 June 2003 www.iss.org.za

van Vuuren, Hennie; Gaushe Pilisa; Arendse, Paul (eds.). Umqol’uphandle – SA Corruption Briefing, Issue 03, Institute for Security Studies, 23 May 2003 www.iss.org.za

van Vuuren, Hennie; Gaushe Pilisa; Arendse, Paul (eds.). Umqol’uphandle – SA Corruption Briefing, Issue 02, Institute for Security Studies, 09 May 2003 www.iss.org.za

van Vuuren, Hennie; Gaushe Pilisa; Lee, Jennifer (eds.). Umqol’uphandle – SA Corruption Briefing, Issue 01, Institute for Security Studies, 22 April 2003 www.iss.org.za

wa Afrika, Mzilikazi. One in four MPs probed over travel scam, Sunday Times, Johannesburg, 01 August 2004

Vapi, Xolisa. Public Protector Changed Tune. Sunday Times, Johannesburg. 27 June 2004

wa ka Ngobeni, Wissani; Gedye, Lloyd & Letsoalo, Matume. Mps who tried to cover their assets. Mail & Guardian. Johannesburg. 03-09 September 2004

wa ka Ngobeni, Wisani. All(pay) in the family. Mail & Guardian. Johannesburg 17-22 Septmber 2004

Wilkins, Ivor and; Strydom, Hans. The Super-Afrikaners. Jonathan Ball Publishers, Johannesburg. 1980

Websites www.ipocafrica.org

www.southafrica.info Accessed on 27 November 2003

www.gov.za Accessed 20 November 2003

www.iod.org.za Accessed 15 January 2004

www.doj.gov.za

www.iss.org.za/corruption

www.cpu.org.uk Accessed on 13 August 2004

www.wits.ac.za/saha Accessed on 07 August 2004

www.pmg.org.za

www.opendemocracy.org.za

www.psam.org.za

www.treasury.gov.za

www.polity.org.za

www.parliament.gov.za


South Africa 144

Legislation

Acts No. Date

Constitution of the Republic of South Africa 200 1993

Constitution of the Republic of South Africa 106 1996

Corruption Act 94 1992

Electoral Commission Act 51 1996

Executive Members’ Ethics Act 82 1998

Films and Publications Act 65 1996

Local Government Municipal Structures Act 117 1998

Local Government Municipal Systems Act 32 2000

Municipal Finance Management Act 56 2003

National Prosecuting Authority Act 39 1998

National Prosecuting Authority Amendment Act 61 2000

Preferential Procurement Policy Framework Act 5 2000

Prevention and Combating of Corrupt Activities Act 12 2004

Prevention of Organised Crime Act 121 1998

Promotion of Access to Information Act 2 2000

Promotion of Administrative Justice Act 3 2000

Protected Disclosure Act 26 2000

Protection of Information Act 84 1982

Public Finance Management Act 1 1999

Public Funding of Represented Political Parties Act 103 1997

Public Protector Act 3 1994

Public Protector Amendment Act 113 1998

Public Service Commission Act 46 1997

Public Service Laws Amendment Act 47 1997

Publications Act 42 1974

South African Police Service Act 68 1995

South African Police Service Amendment Act 83 1998

Special Investigating Units and Special Tribunals Act 74 1996

State Tender Board Act 86 1968

Witness Protection Act 112 1998


South Africa 145

Bills No. Date

Prevention of Corruption Bill B 19-2002 2002

The Draft Public Audit Bill 5 June 2003

Codes of Conduct/Regulations No. Date

Framework for Supply Chain Management Govt. Notice No. R. 1379

4 November 2002

Joint Rules of Parliament 24 March 1999

Policy Guidelines for the Issuance of a Supply Chain Management Framework

15 October 2002

Public Service Regulations 5 January 2001

The Amendment of the State Tender Board: General Conditions and Procedures (ST 36)

Circular No. 5 2002

The Code of Conduct for Assembly and Permanent Council Members

1997

Framework for Supply Chain Management (regulations in terms of the Public Finance Management Act, 1999)

Gazette no. 25767

05 December 2003

Reports No. Date

Report on the State of the Public Service 2002

Cases South African Association of Personal Inquiry Lawyers vs Heath and Others 2001 (1) SA 883 CC.

Government of RSA and others v Grootboom and others 2001 (1) SA 46 (CC).


South Africa 146

Interviews Balia, Daryl. Chief Director: Chief Director on Ethics and Human Resources. Office of the Public Service Commission. September 2004

Baqwa, Selby. Immediate Past Public Protector (Ombudsperson). September 2004

Beukmann, Francois. Chairperson of SCOPA. 18 September 2002

Dyani, Lungisa. Advisor to the National Director of Public Prosecutions (Bulelani Ngcuka). 17 September 2002

Fakit, Shaukit. Auditor General of South Africa. 17 September 2002

Grobler, Steff. Head of the South African Police Services (SAPS) Anti-Corruption Unit. 18 November 2002

Hofmeyer, Willie. Head of the Asset Forfeiture Unit (AFU) & the Special Inverstigative Unit (SIU). 03 September 2002 Kitshoff, Ruan. Head: Department of Public Service & Administration (DPSA) Anti-Corruption Unit. September 2002 Levin, Dr. Richard. Deputy Director General, Public Service Commission. September 2002

Mpofu, Dali. Past Chairperson of the National Ant-Corruption Forum (NACF). 17 September 2002

Malinga, Henry. Director of Supply Chain Management Policy. National Treasury. 18 December 2003

Mckenzie, Adv.Karen. Head of the Independent Complaints Directorate. 04 september 200 Tilley, Alison, Director. Open Democracy Advice Centre. 26 September 2002 Van Heerden, Neil. Chief Executive: The SA Foundation. 20 September 2002

Wilkinson, Richard. Institute of Directors (IOD), 26 September 2002

Woods, Dr. Gavin. Immediate past Chairperson of SCOPA. 28 September 2002

Political Parties African National Congress (ANC)- Chief Whip - Mr. Nathi Nhleko (MP). 27 September 2002

Democratic Alliance (DA) - Chief Whip: Douglas Gibson (MP). 18 September 2002.

Inkatha Freedom Party (IFP) - Chief Whip: Koos van der Merwe (MP). 18 September 2002.

New National Party (NNP) Caucus: Sheila Camerer (MP), AZ van Jaarsveld (MP), J. Schippers (MP). 19 September 2002

Pan Africanist Congress (PAC) - Caucus: Ms. Patricia de Lille (MP), Rev. Stanley Magoba (MP), Mr. Pheko (MP) & Mr. Mtura Mama. 19 September 2002

United Democratic Movement (UDM) -Spokesperson: Annelise van Wyk (MP). 18 September 2002

national integrity systems transparency international ... · national integrity systems...

Documents