Despite the plethora of anti-corruption laws, the reality is that such laws are often ignored or circumvented. All too often, South Africans face situations of bribery and extortion. Many more are faced with the collapse of basic services where public funds have been misappropriated. The Auditor-General’s office in June 2017, released local government audit outcomes and stated that nearly two-thirds of municipalities are financially distressed due to mismanagement and ineffective governance structures, with little to no oversight mechanisms. This, in turn has resulted in an increase in service delivery protests, with Municipal IQ, – a web-based data and intelligence service specialising in the monitoring and assessment of South Africa’s 283 municipalities – recording as many as one every second day, with only the most violent receiving media mention. Many South Africans tell of official indifference when seeking redress for lack of basic services. It must be pointed out that access to basic services such as water, sanitation and healthcare are rights enshrined in the Constitution. This means that corruption and financial mismanagement at local government level results in the infringement of certain human rights and make hollow the constitutional promise of a better life for all.
Grand corruption – according to Transparency International – the abuse of high-level power that benefits the few at the expense of the many, which often goes unpunished – appears to have gripped the country. The 2016 report into State Capture compiled by the erstwhile Public Protector details how individuals close to the President have unlawfully repurposed state-owned entities for their own benefit. The results of this subversion are in plain view. The increased electricity tariffs being passed on to the consumer, as a result of mismanagement and corruption in the electricity supply company, Eskom, being a prime example. Another example is that of the South African Revenue Services (SARS), which in this tax year reported a shortfall of R50.8 billion. Economists have made the link between public concerns over corruption, wasting of public funds and poor service delivery, and the willingness of the same public to comply and pay taxes. In turn, this revenue shortfall simply means that there will be less money for the state to build new infrastructure or invest in healthcare and education.
The ongoing parliamentary inquiry into Eskom every day reveals the depths of the connivance between the politically-connected elite, Ministers Malusi Gigaba and Lynne Brown, as well as Eskom Board Members and management. The Public Affairs Research Institute in May 2017, released a report detailing the extent of the state capture, noting how “a symbiotic relationship has emerged between a constitutional state with clear rules and laws, and a shadow state comprising well-organised clientelistic and patronage networks that facilitate corruption and enrichment of a small power elite.”
That is where South Africa finds itself. With the appointment of partisan figures to key institutions such as the National Prosecution Authority (NPA) or SARS, it becomes less likely that the real culprits behind grand corruption will see the inside of South Africa’s courtrooms. Almost six months into the publishing of details by investigative journalists on how politicians, state officials and politically-connected individuals have unlawfully repurposed state-owned entities, the NPA is yet to make any arrests. Likewise, the South African Police Services (SAPS) is yet to confirm that investigations are underway.
The private sector, long held to be the countermeasure to state corruption is largely faring no better. The Competition Commission has in the past detailed how certain industries have colluded over pricing of their products, to the detriment of South Africa’s most vulnerable citizens. The most recent developments involving Steinhoff International Holdings have negatively affected many retirement funds. Such practices continue to occur where the weak enforcement mechanisms fail to serve as deterrents.
While researchers, including the non-governmental organisation Open Secrets, note that grand corruption existed even before 1994, however, that fact can never be a justification for its continuing existence in the constitutional democracy. South Africa is a highly unequal society and there is a need to create platforms upon which more South Africans can access wealth. However, those platforms cannot usurp existing state policies or act as a shadow state to undermine the Constitution and its values. Neither should they be for the benefit of a few politically-connected individuals. The Constitution, alongside other enforcement mechanisms, envisages a society based on openness, accountability and transparency. While the media plays an important role in ensuring openness and transparency, however the poor enforcement mechanisms and lack of political will almost render useless, the regulatory framework proscribing acts of grand corruption. Corruption is not a victimless crime, as the people of South Africa can attest.
Ms Phephelaphi Dube: Director, Centre for Constitutional Rights
9 December 2017