Bribery and corruption in South Africa

The impact of corruption on our society and what we can do about it

Corruption in South Africa is a well-worn topic of conversation. The Zondo Commission was appointed “to investigate matters of public and national interest concerning allegations of state capture, corruption and fraud”. In November 2023, the government issued a Progress Report on Implementation of President Ramaphosa’s Response to the Judicial State Capture Commission. But, while South Africans may wring their hands about it, no country in the world is immune to corruption. Transparency International’s Corruption Perceptions Index (CPI) ranks 180 countries and territories around the world by their perceived levels of public sector corruption, ranking them using a scale of 0 (highly corrupt) to 100 (very clean). Even the highest ranked country, Denmark, only scores 90. Sub-Saharan Africa in general scores badly, and South Africa is ranked joint 83rd, with a score of 41. Bribery and corruption in our society ranges from “petty” bribes offered to traffic officials to significant amounts paid as “commissions” for securing tenders – so-called “tenderpreneurship”. The amounts may differ, but the moral wrongdoing is the same.

Legislation

The main anti-bribery and anti-corruption legislation in South Africa is the Prevention and Combating of Corrupt Activities Act (PRECCA). PRECCA imposes a statutory reporting obligation where suspicion exists that an offence in terms of the Act has been committed, including bribery. 

Section 34(1) requires “persons in a position of authority” to report any corruption offence, such as theft, fraud, extortion, bribery or forgery, involving an amount of R100,000 or more. Section 34 further places a duty to investigate upon the investigating authority with the constitutional mandate to investigate crime in South Africa – the South African Police Service (SAPS). SAPS is constitutionally mandated to investigate and prosecute criminal conduct along with the National Prosecution Authority (NPA). Within SAPS and the NPA a number of branches and divisions focus on investigating and prosecuting corruption and bribery, including the Directorate for Priority Crime Investigation (Hawks) and the NPA’s Anti-Corruption Task Team. In addition, the South African Special Investigating Unit (SIU) is tasked with investigating corruption and bribery. 

What is corruption and why is it so dangerous?

Transparency International (TI) defines corruption as the abuse of entrusted power for private gain. According to TI, “Corruption erodes trust, weakens democracy, hampers economic development and further exacerbates inequality, poverty, social division and the environmental crisis.” Corruption carries high costs…not only in terms of funds “hijacked” from their intended public use and diverted to illegitimate recipients, though that is one of the most obvious consequences of corruption. Economically, the country’s ability to grow wealth is impacted when public funds are not put to their mandated use. Politically, corruption interferes with freedom and rule of law. Trust in government and the ability to participate in civic affairs is impacted. And there are serious environmental costs: a healthy environment and a sustainable future are threatened by corruption. 

South African legislation defines corruption as “an act of accepting or offering any gratification from any other person whether for the benefit of that person or any other person in order to influence the other person to act in a manner that is illegal, dishonest, unauthorised, incomplete, biased or in a manner that results in the misuse or selling of information”. This applies to both public officials and private individuals. The law does not specifically define bribery but the definition of corruption is broad enough to include bribery.

The law does not distinguish between corruption involving public officials and private persons. Both active and passive bribery constitute corruption: the acts of offering and accepting a bribe are criminal offences. In simple terms, it takes two to tango. In many countries, for example the UK, if a driver offers a bribe to a police officer, the driver is instantly arrested. The police officer would also be guilty of the offence of bribery if they were to accept the bribe, but the culture of bribery does not exist to the extent that it does in South Africa. 

Civil damages and criminal consequences

Claims for civil damages arising from corruption or bribery are common in South Africa. As a general principle of South African law, awards for damages are compensatory and not punitive. A further civil consequence of bribery and corruption is that decisions made by organs of state may be set aside in instances where the decision was tainted by corruption, bribery or maladministration. 

Depending on the nature of the corrupt conduct, a court may impose a sanction of imprisonment and/or a monetary fine. Penalties for contraventions of PRECCA include:

• A fine of unlimited value
• A prison sentence (maximum life imprisonment)
• An additional fine equal to five times the value of the gratification involved in the offence
• Endorsement of convicted persons or enterprises on the Register for Tender Defaulters (blacklisting) 

Reducing corruption

While it may be ambitious to strive for the complete elimination of corruption, we can all contribute to its reduction. We need to cultivate a value system that rewards honesty and discourages dishonesty. Our Constitution is a source of pride for all South Africans. If we foster and uphold the values of the Constitution across society, there will be less opportunity for corruption to thrive. But we must take personal responsibility. Many otherwise law-abiding citizens think nothing of offering R100 to a police officer to avoid a traffic summons. But these small infringements perpetuate a corrupt system. 

Transparency is key to reducing corruption. Government departments and state-owned enterprises need to make tender recipient information publicly available and ensure due diligence is conducted and the process is fully transparent. 

The media has a role to play in the exposure of corruption. Investigative journalism can explain the impact of corruption on service delivery, enabling the public to hold elected leaders and public servants to account.

In the words of François Valérian, the Chair of Transparency International, “Corruption will continue to thrive until justice systems can punish wrongdoing and keep governments in check. When justice is bought or politically interfered with, it is the people that suffer. Leaders should fully invest in and guarantee the independence of institutions that uphold the law and tackle corruption. It is time to end impunity for corruption.”

Protected disclosure

If you suspect corruption, you can report it without fear of repercussion. Whether you work for a private company or a government department, you can make a protected disclosure (informally known as “whistleblowing”). The Protected Disclosures Act and the Amended Act define two types of disclosures: a “protected disclosure” and a “general protected disclosure”. A protected disclosure is the disclosure of information to specific persons or bodies such as legal advisers, employers, members of Cabinet, the Public Protector or the Auditor-General. The general protected disclosure covers a wide range of disclosures, including disclosures to the media, and overlaps with some of the meanings of a protected disclosure. Factual information must be disclosed. Suspicion, rumours and personal opinion do not constitute “factual information”. A protected disclosure is the disclosure of factual information in good faith about alleged criminal activity which someone reasonably believes to be true.

Cape Town law firm SD Law can help

If you are aware of corruption but don’t know how to report it, or are afraid of whistleblowing, give attorney Simon Dippenaar a call on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

 Further reading:

• Stop corruption – whistleblowing without worry
• White collar crime is not victimless

SD Law

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