Institutional responses to combat corruption in South Africa

Institutional responses to combat corruption in South Africa

By Melissa Engelbrecht, Legal Intern – Cape Town

In an address to the nation on 23 July 2020, President Cyril Ramaphosa stated that millions of rands of COVID-19 relief funds had been lost to corruption; his first official admission of corrupt practices in this regard. This admission by the President drew the attention of the public, who questioned his ability to steer the country into a corruption-free dispensation. However, the public’s reaction seems justified, as this shocking news was contained in a report by the Special Investigating Unit in October 2019, which revealed that the public health sector loses USD 3,2 billion annually to corruption1. The frustration directed at the President is therefore due to his failure to deal harshly with corruption, while the issue that has never been holistically addressed is whether the President has personally failed in the fight against corruption.

Anti-Corruption Institutions and their respective roles
Under the South African Constitution, there are four key institutions involved in the fight against corruption, namely; the Public Protector (PP), the National Prosecuting Authority (NPA), the South African Police Service (SAPS), and the Judiciary. This is not an exhaustive list, but these are the key institutions and will be briefly dealt with in turn.

The office of the PP is established under Section 182 of the Constitution to investigate conduct in public administration that is suspected to be improper or result in an impropriety or prejudice. The PP is to report on such investigation and where applicable to take appropriate remedial action. It should be noted that the operations of the PP are not subject to the Executive and the PP is accountable only to Parliament. It would appear that the scope of the PP’s mandate includes corruption. Needless to say, it was the PP who realised that former President Jacob Zuma had corruptly benefitted from non-security upgrades performed at his Nkandla homestead, for which he paid back the money.

Section 179 of the Constitution gives rise to the powers of the NPA, described as being responsible for instituting criminal proceedings on behalf of the State, and to perform other functions incidental to this core mandate. But for the NPA to carry out its mandate optimally there must be efficient investigation and gathering of evidence. This task is left to the SAPS, responsible for preventing, combating and investigating crime throughout the Republic in terms of Section 205 (2) of the Constitution. The functions of the police and the NPA are interlinked; effective investigation by SAPS leads to a successful prosecution by the NPA. It should be noted that in terms of Section 209 of the Constitution, the President has the authority to appoint other specialised intelligence services to deal with specific tasks.
The last institution directly involved in combating corruption, and arguably the most significant, is the Judiciary. The court system is provided for under Chapter 8 of the Constitution. When the police complete their investigation they hand over the case to the NPA, although more often than not the investigations are done jointly so that only the relevant issues are focused on. The NPA then institutes the corruption charges in the relevant courts, where the presiding officer is the final arbiter, who pronounces the guilt or otherwise of an accused, and the appropriate sentence.

As seen from the above, the fight against corruption involves various institutions which ought to work efficiently. If one institution is infiltrated, then the whole system fails and all the efforts against corruption become compromised.

Why blame the President?
Of all the institutions discussed above, none is headed by or directly under the control of the President. Yet the President is under attack for failing to combat corruption. Why?

The President is the head of the Executive and the face of the nation. It is not surprising that the nation is holding him accountable as he is the ultimate authority. As explained previously, corruption investigations are conducted by the SAPS, who are under the authority of a Minister of Police who is appointed by the President. Failure of SAPS to carry out investigations means failure of the respective Minister and, ultimately, failure of the President. In as much as the President does not have control over the NPA and the Judiciary, he influences policy, and we can see some correlation as to why he would be held accountable in this regard as well.
However, this again raises the issue of society regularly putting faith and trust in individuals rather than existing institutions that are in place. A country must have strong institutions which are less likely to become compromised. Importantly, no individual should bear the sole responsibility to fight corruption as we are human, and humans are imperfect.

 

Click here for our complete August 2020 Newsletter

Participation in Africa Month

Participation in Africa Month

By Muchengeti Hwacha, Johannesburg Intern.

As an organisation that works to protect and promote the rights of refugees, migrants and asylum seekers, ProBono.Org was invited to join a coalition of civil society organisations in planning events to celebrate Africa Day.

Given the recent xenophobic rhetoric from leaders across the political spectrum and the resultant violence it instigated, the coalition decided it was important to unite people around the hashtags ‘#AfricaForAll and #IAmAnAfrican’. The events were intended to engage with various stakeholders to address the causes of afro-phobia in South African society and the lack of government accountability when said phobia leads to violence and death. More importantly the events were intended to provide a space for open and honest dialogue that would breed common understanding among a divergent group of people.

 

The events included:

Youth Engagement at the University of Pretoria

This engagement with international students at the University of Pretoria was intended to get an understanding of what it is like to be a young foreign national living, working and studying in South Africa. The turnout was overwhelming and the engagements thought provoking. Issues of language barriers, tribalism and stereotyping were highlighted as key concerns among the youth population. ProBono.Org organised, catered for and moderated the event.

Youth Dialogue at the Diepkloof Welfare Centre

This dialogue, held in the heart of Soweto, brought a message of understanding and inclusiveness to the Diepkloof community. The event created a platform for three brilliant speakers from the refugee, migrant and asylum seeker community to share their experiences with Diepkloof residents. The ensuing dialogue brought out strong emotions from both the residents and the speakers. The raw emotions expressed, rather than being divisive, actually allowed for an open and honest interaction which led to a deepened understanding of one another. ProBono.Org assisted in organising and moderating the event

For media coverage on the Youth Dialogue follow the link below:
https://sowetourban.co.za/59194/ diepkloof-residents-given-insightsimmigration/

Stakeholder Dialogue at the Constitution Hill Precinct

This dialogue provided a platform for professionals who work to protect and promote the rights of refugees, migrants and asylum seekers to speak about their work and highlight the challenges facing this community. The event also allowed for government officials to respond to the criticisms laid against them by the professional group. This high level engagement created an opportunity for interaction and potential collaboration between civil society and government officials working in the space. ProBono.Org assisted in planning and formed part of the panel of civil society speakers. Tshenolo Masha, the head of the Refugee and Immigration department at ProBono.Org, spoke on the legal perspectives of the migrant experience.

Africa Day Festival at the Catholic Archdiocese, Doornfontein

After all the serious discussions mentioned above the coalition decided to create a more celebratory atmosphere with a festival held in the middle of Johannesburg. This event brought together people from 20 different African countries to share food, fashion and music. The programme included live musical performances, a fashion show and various other activities for the whole family. ProBono.Org assisted with financial and logistical support.

The following organisations participated:

The Foundation for Human Rights (FHR), The Consortium for Refugees and Migrants in SA (CoRMSA), Constitution Hill, Amnesty International, Lawyers for Human Rights (LHR), The Centre for the Study of Violence and Reconciliation (CSVR), Africa Diaspora Forum (ADF), The Jesuit Refugee Service (JRS), The Refugee Children’s Project, The SA Congress of Non profit Organisations (SACONO), the City of Johannesburg, the Department of Arts and Culture, the Department of Justice and the Action Support Centre (ASC).

Click here for our complete June 2019 Newsletter

Itsoseng Women’s Project, Orange Farm

Itsoseng Women’s Project, Orange Farm

Article by Annelie du Plessis, published in Probono.Org June 2016 Newsletter.

 Mrs Zanele Gladys Mokolo, in her capacity as coordinator of the Itsoseng Women’s Project (IWP), approached our offices for assistance in a matter involving the Johannesburg Property Company. The IWP serves the community of Orange Farm by providing skills training programmes and community based projects to unemployed women in the area. One of these projects involves running a crèche for children between the ages of 0 to 6 years. The IWP presently has about 60 children in its care. The project also provides the destitute with a source of income through its recycling activities. Each programme operates from shipping containers on the premises, donated by the Department of Social Development, Agriculture and JAM SA, and one of these containers serves as the crèche.

The crèche employs four child minders, a cook and a gardener, and together with its recycling activities it employs about 18 women. Social Development provides subsidised funding to the IWP but this only buys food for about 36 children and barely covers the salaries of the crèche employees. The IWP provides the children with lunch. Most of the parents in the area cannot afford to pay crèche fees and for many children this is the only meal they receive.

The IWP does not own property. It has been leasing the erf in Orange Farm for several years. Before 1994, the Transvaal Provincial Administration (TPA) managed this property but in recent years it was given to the Johannesburg Property Company (JPC) to manage on behalf of the City of Johannesburg.

Following the disbanding of the TPA, the IWP was told by the JPC to re-apply for a new lease agreement in terms of a tender process, citing the Municipal Finance Management Act of 2003 (MFMA) as the basis for this change. Such an application involves a submission in accordance with the JPC’s Standard Transaction Application Form process and requires a R3000 application fee.

The IWP was not in a position to pay this fee or go through the tender process and requested assistance. An attorney, Neil McKenzie from Fasken Martineau provided our offices with a comprehensive opinion on the JPC’s proposed negotiations concerning the lease agreement with the IWP.

Various meetings were called to secure the IWP’s lease without going through the proposed tender process. This led to the JPC’s discovering that the premises were never formally registered with the Deeds Office. Further meetings and negotiations ensued, which ultimately led to the JPC agreeing to let IWP stay on the property, while it resolves the transfer and registration issue with the City of Johannesburg and the Deeds Office.

The JPC’s proposed tender process would have had far-reaching implications for the Orange Farm community as a whole. A tender process in terms of the MFMA is inappropriate for struggling social welfare organisations. ProBono.Org knows of at least 300 other NPOs (crèches) in a similar position. These NPOs provide a vital service to the community through employment, empowerment, training, education and food provision, but remain insufficiently funded or supported. These NPOs stand to lose properties that they have occupied for years, leaving many of their beneficiaries (mostly children) deprived and without any alternative care options. They are also not receiving sufficient funds or grants, which strains their resources even further.

For the above reasons, our offices, along with Gladys and her children at the crèche are grateful for Neil McKenzie’s dedication and commitment in finalising this matter. We hope this case will set a precedent, impacting on other NPOs in the area.

SAVE THE DATE!!!!!

SAVE THE DATE!!!!!

For the Sixth Annual

Public Interest Law Gathering*

(PILG)

August 29 – 31, 2016

Venue: University of the Witwatersrand, School of Law

More Details to Follow!

 

www.publicinterestlawgathering.com

 

*PILG 2016 is organized by the Centre for Applied Legal Studies (CALS), Lawyers for Human Rights (LHR), the Legal Resources Centre (LRC), ProBono.Org, Section27, the Socio-economic Rights Institute of South Africa (SERI), the Southern Africa Litigation Centre (SALC), Students for Law and Social Justice (SLSJ) and the University of the Witwatersrand, School of Law.

GIVING HOPE AND DIGNITY TO THE POOR: The story of ProBono.Org

Case study conducted for The Atlantic Philanthropies September 2009.
Written by Tom Lebert, Umhlaba Associates.
In South Africa, immigrants, farm workers, the rural poor, and the gay community are among the population groups regularly denied access to rights, services and justice.
The Atlantic Philanthropies supports organisations that use the law to ensure access for the rural poor to the rights and services promised to them under the democratic Constitution. In practice, this means support for
organisations providing free legal advice and support to indigent people in rural communities. In some cases the organisations engage in high-impact litigation to effect change, as well as in lobbying and advocacy to influence policy.

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