Issued by Ismail Joosub, on behalf of the FW de Klerk Foundation on 23/04/2024

In recent years, South Africa has been rocked by a series of corruption scandals, each peeling back layers of systemic misconduct and underscoring the imperative for individual accountability. At the forefront is the infamous “State Capture” saga, implicating former President Jacob Zuma and a nexus of officials in a web of corruption. The Zondo Commission’s investigations unearthed bribery and tender irregularities, spotlighting the deep-seated nature of corruption.

Similarly, the uproar surrounding COVID-19 Personal Protective Equipment (“PPE”) procurement has revealed inflated prices and troubling conflicts of interest. Allegations of kickbacks and nepotism surrounding the Digital Vibes contract in the Department of Health further underscore governance vulnerabilities.

Amidst these scandals, a fundamental question arises: Can public officials be held personally accountable for corruption within their domains? The recent Phala Phala controversy, entangling President Ramaphosa, amplifies this inquiry. While legislation like the Prevention and Combatting of Corrupt Activities Act, 2004 (“PRECCA”) mandates the reporting of corruption, translating it into actionable personal liability remains elusive.

Clarifying individual culpability in corruption cases is indispensable for fostering transparency and effectively combating endemic corruption.

Personal Liability and Accountability:

Criminal Liability:

In South Africa, individuals implicated in corruption can face criminal prosecution under various statutes, including PRECCA. A person guilty of corruption can be sentenced in terms of PRECCA to an unlimited fine or a prison sentence (with the maximum sentence being life imprisonment), an additional fine equal to five times the value of the gratification involved in the offence, or endorsement on the Register for Tender Defaulter (“blacklisting”). This provision underscores the principle of personal accountability, holding individuals responsible for their actions or inactions in combatting corruption. We can see this in action in the case of Zinyana v Smith and Others, where PRECCA was invoked to address alleged misconduct, with the court directing that the respondent fulfil their reporting duties under section 34 (1) – thereby holding that any person in authority who knows of, or reasonably suspects, theft involving a substantial amount, but who fails to report it, criminally liable, with such failure potentially resulting in imprisonment or hefty fines.

While corruption is classified as a statutory crime regulated by PRECCA, anyone who commits corruption may also, if applicable, be found guilty of the following crimes:

     1. Treason:

Treason, a common law offense in South Africa, encompasses conduct unlawfully committed by individuals owing allegiance to the state with intentions such as overthrowing the Government, coercing it by violence, endangering national security, or altering the constitutional structure. While typically not directly applicable to corruption cases, instances where corruption compromises national security or undermines state integrity could warrant treason charges. Penalties for treason include imprisonment, with a maximum sentence of life imprisonment. While bribery and embezzlement may not inherently constitute treason, their involvement in broader conspiracies against the state might implicate individuals in treasonous activities.

     2. Common Law Offenses:

Common law offenses such as theft and fraud can be applicable in corruption cases involving misappropriation of funds or deceitful practices. These offenses are based on established legal principles and do not require specific statutory provisions to prosecute individuals engaged in corrupt behaviour.

     3. Prevention of Organised Crime Act, 1998:

This Act targets organised crime, including corruption-related offences like money laundering (section 4) and racketeering (section 2) and corruption in relation to witnesses and certain activities.

Civil Liability:

Beyond criminal repercussions, individuals involved in corruption can also face civil liability, where victims or affected parties seek financial restitution, or damages through civil litigation. Civil actions can be pursued concurrently with criminal proceedings, or independently, providing an avenue for redress in cases where criminal prosecution may falter due to evidentiary constraints. The Promotion of Access to Information Act, 2000 (“PAIA”) and the Promotion of Administrative Justice Act, 2000 (“PAJA”) facilitate transparency and accountability by granting citizens access to information and enabling judicial review of administrative actions, respectively. These legislative frameworks empower civil society and whistle-blowers to challenge corruption and hold individuals accountable through civil suits.

Asset Forfeiture:

Recent efforts to combat corruption have also focused on asset forfeiture as a means of recovering proceeds of crime and holding wrongdoers accountable. The Asset Forfeiture Unit (“AFU”) of the National Prosecuting Authority (“NPA”) has initiated forfeiture proceedings against individuals implicated in corruption scandals, targeting assets acquired through illicit means.

The AFU operates as a specialised unit within the NPA, tasked with identifying, tracing and seizing assets derived from criminal activities. Through civil forfeiture proceedings, the AFU seeks court orders to freeze or confiscate assets linked to corruption, money laundering and other illicit activities. By depriving corrupt individuals of their ill-gotten gains, asset forfeiture aims to disrupt criminal networks, deter future wrongdoing and recover stolen assets for the benefit of the state and its citizens.

In the case of former President Jacob Zuma, the AFU secured a court order freezing assets worth millions of rand, ordering Zuma to repay R6,5 million, believed to be proceeds of corruption. The asset freeze, coupled with ongoing criminal proceedings against Zuma, signals a determination to hold corrupt individuals accountable and recover stolen assets for the benefit of the state and its citizens.

Furthermore, the NPA’s past success in securing a forfeiture order against the Gupta family’s assets, including luxury properties, aircraft and bank accounts, underscores the effectiveness of asset forfeiture as a tool for combating corruption and recovering stolen funds.

While asset forfeiture represents a significant step in combating corruption, much more needs to be done. A December 2023 report revealed that of the R57 billion rands lost to state capture, only R5,4 billion has been recovered to date.

International Frameworks and Liability:

In the realm of international cooperation, South Africa has strengthened its efforts to combat corruption by aligning its legal frameworks with international standards and collaborating with foreign jurisdictions and international organisations. The attempted extradition of suspects implicated in corruption cases, such as the Gupta brothers, from countries like the United Arab Emirates and India, highlights the importance of cross-border cooperation in prosecuting transnational corruption networks.

Moreover, another effective way to hold criminals personally accountable is by freezing their bank accounts, thereby preventing them from accessing funds acquired through corrupt activities. This measure not only disrupts their ability to benefit from illicit gains, but also facilitates asset recovery efforts by law enforcement agencies.

Furthermore, South Africa’s participation in global anti-corruption initiatives, such as the Open Government Partnership (“OGP”) and the Financial Action Task Force (“FATF”), underscores its commitment to upholding international standards of transparency and accountability. Yet, the execution of agreed-upon international norms must be effected – which has not entirely been the case.

Conclusion: 

In light of these developments, the South African legal system faces significant challenges in addressing corruption effectively while upholding the rule of law. The application of laws (such as PRECCA) and the prosecution of individuals implicated in corruption scandals will be crucial in restoring public confidence and safeguarding the nation’s democratic principles.