Dear CW,
I have been following the story on your Facebook page about David Malatsi, the former MEC who was sentenced to 5 years for receiving a bribe. But what about the businessman who paid the bribe? Why does it seem like it is always only the public official who is punished? Doesn’t bribery work both ways? Yours, The Enforcer
Dear Enforcer
The Italian Count, Ricardo Augusta entered into a plea agreement with the national prosecuting authority and was fined R1 million.
The man he bribed, Western Cape MEC David Malatsi was sentenced to five years in prison. During the trial, his attorney attempted to convince the regional magistrate to fine him instead of imposing a prison sentence. This was rejected. The regional magistrate who sentenced Malatsi likened corruption amongst elected officials to serious violent crime.
Corruption is a societal problem. It affects us all. It is our common enemy. According to the Institute for Democracy in South Africa the levels of corruption in South Africa‘s public sector is at its highest since 1994. Public servants and elected officials, by virtue of the positions of trust they hold, bear a greater responsibility to act with integrity
Our law recognises this, and as its name suggests, the Prevention and Combating of Corrupt Activities Act aims to strengthen government’s ability to fight corruption in government and in the private sector.
The Act aligns South African law with the UN Convention Against Corruption and the AU Convention on Preventing and Combating Corruption. These conventions require signatories to take steps to prevent corruption, create crimes to cover a wide range of corrupt activities, cooperate with other countries to stop corruption and to impose strict penalties for corruption.
The Act creates categories of crime that apply to public officials, politicians, judges, magistrates and the private sector. For example, it is a crime for a member of the private sector to offer public officials and politicians money or favours to influence them to abuse their power.
Under the Act it is a crime to offer or accept money or favours to award a tender to anyone, to try and influence the award of a tender or to withdraw a tender once it has been awarded.
Offering a magistrate or judge money or favours to decide a case in a particular way carries a maximum penalty of an unlimited fine or imprisonment.
The Act recognises that South African businesses may try to corrupt officials in foreign governments. It is a crime to attempt to unduly influence a foreign official. If any South African business is found guilty of this, they are liable to prosecution in South Africa. MTN officials, it is alleged, used underhand means to gain a foothold in Iran. If the allegations are proved, those involved are likely to be charged and convicted under this Act.
People in positions of authority – heads of national or provincial departments, Municipal Managers, the principal of a tertiary institution, a manager, secretary or director of a company and an executive manager of a bank or financial institution – have an obligation to report corruption involving more than R100 000 to the police. Failure to do so is an offence and is punishable by a fine or a prison sentence of up to 10 years.
On the downside, only 35% of all corruption cases reported on the hotline were actually finalised according to the Public Service Commission. Looking at this statistic it is not a surprise that corruption continues to be rife in the public sector. People who report are frustrated with the lack of action taken by the government officials to punish the offenders for their actions. And we’ll look at plea bargaining in a future letter.
Take a stand and report an incident of corruption. This article originally appeared in the Sunday Times Business Times on 9 December 2012.
