By Mavuso Msimang
First published in City Press
I recently requested an audience to allow me to kick off my talk, The risks of corruption facing SA in 2015 and 2016, by re-enacting a scene from a classroom somewhere in South Africa. They agreed, which I hope you will to.
There are six tenses in the English language, namely: past, present, future; past perfect, present perfect and future perfect – and Ms Sandwich decided to test her pupils’ knowledge of this.
Ms Sandwich: “The leaders have finished all the food. What tense is that?”
“Present perfect tense,” Theodora answers confidently. “Excellent! Please take your seat,” Ms Sandwich says.
“Next question. After taking office, the leaders insisted it was their turn to eat. Magalies?”
“Past tense, Ms Sandwich,” answers Magalies.
“Very good, take your seat, Magalies. Next one. It seems they had forgotten their election promises, to serve the people.”
Zelda’s hand goes up and she answers: “Past perfect tense.”
Ms Sandwich was ecstatic. “Now Thulane, listen very carefully and give me the correct tense of this sentence: By 2025, South Africa will have become a corruption-free country.”
Thulane grimaces, hesitates a bit, then says: “Future impossible!”
Corruption Watch board member Mavuso Msimang says that South Africa is not in a good space as far as corruption is concerned. Image: Flickr / GovernmentZA.
The prognosis at Corruption Watch, where I serve as a trustee, is not dissimilar to Thulane’s, but we remain optimistic. It is a hopefulness borne out of our undying faith in inherent human goodness – and less on empirical evidence.
Corruption defined
Let’s define the matter. Corruption Watch defines corruption as “the abuse of public resources or public power for personal gain”. Global civil society organisation Transparency International, which monitors and publicises corporate and political corruption in international development, has a more expansive definition: “the abuse of entrusted power for private gain. It can be classified as grand, petty and political, depending on the amounts of money lost and the sector where it occurs.”
As often happens in South Africa, everything, even definitions, is subjected to scrutiny. The Council for the Advancement of the South African Constitution is concerned by what it perceives to be too narrow a definition of corruption; one that creates the impression that corruption is rampant – and exclusively so – only among the poor and in the public sector; a definition that sometimes assumes connotations of race. The council believes that states can also be implicated in corruption.
The council offers this definition: “Corruption is a transaction or attempt to secure an illegal advantage for national interests or private benefit or enrichment, through subverting or suborning a public official or any person or entity from performing their proper functions with due diligence or probity.” It is a bit of a mouthful, but it makes the point.
South Africa boasts a formidable arsenal of laws, predominantly since the transition to democracy in 1994, to prevent, combat and punish acts of corruption. These laws include, inter alia, the Constitution, the Public Finance Management Act, the Public Service Act, the Competition Act, Protected Disclosures Act and, not least, the Prevention and Combating of Corrupt Activities Act.
International standards
The latter act was written, among other reasons, to create a register to prevent people involved in corruption from securing government contracts or tenders. It requires people in positions of authority to report corruption of more than R100 000. It also provides for the imposition of hefty prison sentences and fines.
It brings local legislation on corruption in line with the UN Convention against Corruption and the AU Convention on Preventing and Combating Corruption. South Africa’s other commitment to international cooperation in the fight against criminality was through its signing of the Rome Statute of the International Criminal Court (ICC). Parliament signed the ICC Act of 2002. In terms of this law, South Africa would have been expected to execute the long-standing warrant of arrest on Omar al-Bashir, president of Sudan, issued by the International Court of Justice. But that is a rather inconvenient digression. The imperialists ought to know that we don’t take kindly to their preoccupation with flushing out our vermin when they turn a blind eye on their own.
Among the laws that influence corruption in South Africa is a US federal law, the Foreign Corrupt Practices Act of 1977. The act was passed to make it unlawful for certain classes of persons and entities to make payments to foreign government officials to assist in obtaining or maintaining business. It was in terms of this legislation that Gold Fields was accused of offering a bribe to Baleka Mbete, chairperson of the ANC, in a contentious 2010 empowerment deal.
Power and money matter
To publicise and facilitate public access to activities around the law, there is a Foreign Corrupt Practices Act blog that lists and periodically updates companies being investigated under the act.
Given this battery of laws aimed at preventing or containing the scourge of corruption, what is the state of the malaise in South Africa? To say the least, we are not in a good space.
The Corruption Watch annual report released in February 2015 shows that corruption in South Africa is increasing. A total of 8 181 cases were reported in three years of the organisation’s operations. About 2 714 cases were reported in 2014, representing an increase of 17% over the previous year. On average, this is equivalent to seven reported corruption cases per day – and not all cases are reported. Of the reported cases, 56% was confirmed as corruption; others related to poor governance and service-delivery shortcomings. Cases related to the abuse of power, a form of corruption, accounted for 41% of complaints received and occurred in the education and schools sector, in traffic and licensing departments as well as immigration and housing.
Increasingly, the average citizen believes that you are untouchable and not beholden to the same rules as ordinary citizens – if you wield power. There is a strong and growing belief that the wealthy have undue access to power and the system can be manipulated in their favour. Oscar Pistorius’ case springs to mind, where wealth and fame are believed to have resulted in him facing the lesser charge of culpable homicide, rather than murder, for killing his partner. Cyril Ramaphosa, now deputy president, who was a nonexecutive director and shareholder at Lonmin in 2012 when the police killed 34 miners, is said to have used his political influence to help Lonmin in its conflict with the miners.
Perception and reality
Given this battery of laws aimed at preventing or containing the scourge of corruption, what is the state of the malaise in South Africa? To say the least, we are not in a good space.
The Farlam commission finding that none of the senior politicians and company executives bore any direct responsibility in the mass killing of the miners reinforces the perception of the powerful being beyond the reach of the law. These are perceptions, but in a country where there is a yawning and ever-increasing gap between the poor in their multitudes and the elite who revel in profligacy, they become reality. This is extremely dangerous for our democracy.
Going back to the Foreign Corrupt Practices Act blog, the 2013 list of companies being investigated for corrupt practices puts South Africa at number nine, with $350.6-billion (R4.4-trillion) worth of cases under investigation. Net1, Gold Fields, Quanta Services and Walmart stores are on the list.
With China leading the pack at $9.24-trillion, Brazil second at $2.246-trillion, India third at $1.887-trillion, Russia fourth at $2.097-trillion, South Africa, at $350.6-billion, does not look too bad – even though there is nothing honourable about being on a list of the infamous in the first instance.
Note also that while South Africa may be perceived as less corrupt than its Brics partners, when the number of cases under investigation is examined relative to GDP, we jump three places to number six. We do seem to be in good company at Brics.
Several institutions in the South African criminal justice system and a string of state-owned companies constitute a grave corruption risk with far-reaching consequences for law enforcement and the economy.
Ultimate responsibility for this calamitous state of affairs must be laid at the door of those in party political and government corridors of power – for the creators of some of the most uninspired board and executive appointments in some of these institutions.
Prosecuting or…
It is worth noting that none of the directors of the post-1994 National Prosecuting Authority (NPA) have yet been able to serve their 10-year term in office. Bulelani Ngcuka, the first of its directors, and his successor, Vusi Pikoli, fell foul of the political hurricanes of the time. The controversy surrounding the decision to prosecute President Jacob Zuma on corruption charges claimed Ngcuka’s scalp.
For his part, then president Thabo Mbeki suspended Pikoli for going ahead with the prosecution of then national commissioner Jackie Selebi. Pikoli was subsequently declared fit for office by the Frene Ginwala Inquiry and reinstated. Then interim president Kgalema Motlanthe fired him anyway.
President Zuma appointed Menzi Simelane as director of the NPA in 2009, but was forced by the courts to reverse this decision.
Mxolisi Nxasana, appointed in October 2013, later faced an inquiry instituted by the president “to assess his fitness to hold such office”. This volte-face was attributed to the discovery that Nxasana failed to disclose his previous brushes with the law. Nxasana successfully challenged the president’s reasons for the suspension, which resulted in a settlement, the terms of which remain secret. Nxasana left office after a two-year tenure – and by no means a poor man. And the president adulated him as “professionally competent with the requisite experience and integrity to hold a senior position”.
The restiveness at the NPA has occurred across the board.
Unseemly bickering, back-stabbing, factional duels among senior officials and arrest warrants have been the order of the day. The conduct of two officers was such that it had to be referred to the General Council of the Bar to decide if these individuals should be struck off the roll.
Policing
There has also been instability at the South African Police Service (SAPS). I am loath to speak ill of the dead, even when it comes to telling hurtful truths. Suffice to say that the late Jackie Selebi left the police service in disgrace, incidentally not before ordering the shutdown of the anticorruption unit. He also resigned as head of Interpol. Selebi was accused of corruption, sentenced to 15 years’ imprisonment and lost his appeal in court.
The feisty and ebullient General Bheki Cele lasted all of three years before he was dismissed by the president on the recommendations of a board of inquiry mandated to establish whether he “had acted corruptly, dishonestly or with an undisclosed conflict of interest” in relation to two police lease deals.
General Riah Phiyega succeeded Cele in June 2012. Three years on, and persistent accusations in between, Phiyega is dealing with the Marikana Commission of Inquiry recommendations that the president institute an inquiry into her fitness to hold office. This was based on a finding that she was party to a decision to mislead the commission on how it came about that the “tactical option” was implemented on August 16 2012, the day of the Marikana massacre.
The catalogue of corrupt police officers, past and present, is nothing if not nauseating. In July last year, the SAPS reported that 1 448 serving police officers were actually convicted criminals. They included, among others, a major general, 10 brigadiers, 21 colonels, 10 majors, 43 lieutenant colonels, 163 captains, 84 lieutenants and 716 warrant officers.
Their criminality ranged from misconduct, theft and sale of arms to gangsters, soliciting bribes, drug dealing and murder.
Not all is lost. Hard-working employees in the NPA and the SAPS continue to keep them going. The National Development Plan has policing recommendations that can only help.
State-owned companies
No fewer than 10 state-owned companies are experiencing levels of maladministration that are severely hurting our already beleaguered economy and sucking billions of rands from the National Treasury. It is proper to describe this as criminal, especially in the face of the desperate social conditions many citizens are experiencing.
With admirable candour, Mbeki admitted that in 1998 Eskom had asked the government for permission to build new power stations. The government rejected the request. In his words: “Eskom was right. We were wrong.”
By the time Eskom started tackling expansion requirements, they were facing severe skills shortages: engineers, project managers and technicians, in particular.
By 2006, it had become clear that it was just a matter of time before the poor maintenance of power stations, ageing infrastructure and the skills shortages had resulted in a power crisis. In the latter part of 2007, the country started experiencing rolling blackouts as demand outstripped supply, threatening to destabilise the national grid.
No fewer than 10 state-owned companies are experiencing levels of maladministration that are severely hurting our already beleaguered economy and sucking billions of rands from the National Treasury.
Economists’ estimates in March this year were that the Eskom crisis had curbed economic growth by as much as 10%. A department of public enterprises presentation to Parliament in the same month said Eskom’s power cuts had cost the national economy between R20 billion and R80.1 billion.
In the midst of this crisis, the Eskom board chairperson, its CEO and three other executives were suspended and all but one have since left the organisation.
ANC secretary-general Gwede Mantashe described this situation as a “positive crisis” as it was stimulated by new demand (presumably by the previously excluded).
South African Airways (SAA) is a perennial loss-maker that has gobbled up billions of rands in successive unsuccessful bailouts. The turnover of boards, CEOs and executives has been high and has created instability. The present chairperson, who is also chairperson of the Jacob Zuma Foundation, Dudu Myeni, pointedly defied an instruction from Lynne Brown, who as minister of public enterprises, represented the government on the carrier. In December, the president transferred the administration of SAA to National Treasury.
In its last statement of 2014, Cabinet expressed its concern about the administration of the cash-strapped and strike-riven South African Post Office. Parliament was recently informed that the organisation had no money to pay salaries and that it was on the verge of collapse. Its failure to update its technology had also resulted in a loss of clients. The board resigned in November last year.
The Passenger Railway Agency of South Africa (Prasa) is another seriously troubled institution. It is planning to invest R123-billion in rolling-stock renewal over the next 20 years. The board recently dismissed CEO Lucky Montana amid corruption accusations and counteraccusations – all played out in the public domain.
The public protector is about to publish her findings on allegations of corruption. Prasa is embroiled in a controversy over trains that are said not to fit South African rail tracks, a likely R1.3-billion foreign currency hedging loss is anticipated and the chief engineer has been suspended and is facing fraud charges on allegations of falsifying his academic qualifications. Meanwhile, the sacked CEO is proud to tell the public he believes the engineer to be a genius.
There are more state-owned companies that are veritable dens of corruption and incompetent management, which are not mentioned here for lack of time.
Nkandla
The elephant in the Nkandla room has been in a prolonged gestation that has lasted more than 36 months. When its due date arrives, there are fears the elephant might actually give birth to a mouse.
We have the spectacle of people running out of breath, to no purpose, in an interminable process. Thanks to the recent visit by parliamentarians to the homestead, the public is now aware of the cesspit of sleaze that has been termed presidential security upgrades. Government officials and service providers had a field day. However, failure to prepare requisite prosecution documents, three years on, may assure the culprits secure custody of their ill-gotten loot – our money.
I wish to conclude by pleading that we, who were the midwives of our liberation, must agree that we ought to be held to the highest ethical standards of performance when we act as trustees of the people. The departed comrades would have expected nothing less.
Msimang is a board member of Corruption Watch. He delivered this speech at the interactive 2015 Risk Laboratory, organised by the Institute of Risk Management SA.
