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South Africa’s Constitution empowers the anti-graft fight

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By Selby Makgotho

Transparency International, a global coalition against corruption, in its 2022 annual report has ranked South Africa number 72 out of 180 countries in its presentation of trends of corruption in the world.

In the report, countries’ efforts and strengths are analysed to mitigate against the ensuing pandemic of corruption.

According to the CEO of Transparency International, Daniel Eriksson, leaders can fight corruption and promote stability among citizens.

“Governments must open up the space to include the public in decision-making – from activists and business owners to marginalised communities and young people. In democratic societies, the people can raise their voices to help root out corruption and demand a safer world for us all,” Erriksson states, adding that corruption has made the world to be a dangerous place.

“As the governments have collectively failed to make progress against it, they fuel the current rise in violence and conflicts, and endanger people everywhere. The only way out is for states to do the hard work, rooting out corruption at all levels to ensure governments work for all people, not just the elite few,” the report reads.

The ink had hardly dried on the release of the report when the former CEO of Eskom, Andre de Ruyter, made damning corruption allegations in his exit interview. In the interview, De Ruyter puts a worrisome picture which needs to be ventilated in a legal forum to test the allegations thereof.

It stands to reason that almost all the State-Owned Enterprises (SOEs) are before the courts on a wide range of allegations relating to corruption, malfeasance, procurement irregularities, and bribery, fraud and irregular appointments of personnel to manage supply chain processes. The various law enforcement agencies’ reports on corruption and fraud-related charges presented in the different courts paint a gloomy picture. Compliance with constitutional, legislative and other statutory provisions had seemingly been largely disregarded.

According to Corruption Watch, the impact of corruption on the lives of ordinary people is quite devastating. The resuscitation of vital state organs to deal with this scourge is giving hope and bringing in the anticipated results. The permanency of the Investigating Directorate (ID) will likely go a long way in bringing accountability and prosecutions required to mitigate against the scourge. The Hawks has also woken up from deep slumber and has effected high-profile arrests as seen as the most recent VBS arrests and many other wrongdoings in the society. Similarly, on the civil recovery side of things, a lot of money is being recovered and perpetrators brought to book.

South Africa is not short of legal instruments to fight corruption. Several clauses in the Constitution have a bearing on the constitutional powers of the State to fight corruption.

Also, the Auditor-General is empowered by the Constitution to audit books and report on any irregularities. The several investigations conducted by the law bodies are also beginning to take shape.

Professor John Mubangizi of the University of the Free State argues that corruption becomes quite systematic when corrupt practices occur at almost every level of the state institution, becomes repetitious, and constituting parallel set of procedures to those who properly constitution the formal functioning of the bureaucracy. The R24.9 million trial in the Nulane matter sitting at the Free State High Court is set to become the first State Capture case to appear before the court.

It is expected that now that the final report on State Capture is out, more similar cases will likely be enrolled for prosecution. As the evidence was laid bare at the State Capture Commission law enforcement agencies should have readied themselves to work on the recovery of the taxpayers’ monies and criminally pursue those who involved themselves in the dirty mud. The report, or various sections and /or in stages, will still be referred to the Parliamentary Portfolio Committees for appropriate recommendations.

A lot of work arising out of the State Capture Commission findings still lies ahead. The other critical things necessary for the state is on the issue of governance. Last week, the Department of Public Enterprises held an all-important session where governance practitioners from SOEs thrashed out the issues requiring a critical governance outlook and nip in the bud the ugly head of corruption whenever it manifests its head. The resolutions taken at the session recommit and rededicate the efforts of the SOEs to perform much better in ending corruption.

In fighting corruption, the Constitution is the first place to start at. It is incumbent that all public officials should live according to the provisions of the Public Finance Management Act (PFMA), a comprehensive guide on how not to waste state resources and money.

* Selby Makgotho is a legal researcher and commentator and a PhD Candidate in Public Constitutional and International Law