corruption – the challenge to good governance

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Corruption – the challenge to good governance: a South African perspective Soma Pillay School of Business, Swinburne University, Hawthorne Campus, Melbourne, Australia Keywords Corruption, South Africa, Public sector organizations, Governance, Development Abstract The effect of corruption in South Africa has seriously constrained development of the national economy and has significantly inhibited good governance in the country. South Africa’s complex political design is a contributing factor to the rise of corruption, which has adversely affected stability and trust and which has damaged the ethos of democratic values and principles. Although the South African government has been instrumental in systems to fight the evils of corruption, practical problems have increasingly emerged over the years. The most notable problems are: insufficient coordination of anti-corruption work within the South African public service and among the various sectors of society; poor information about corruption and the impact of anti-corruption measures and agencies; and the impact of corruption on good governance. This paper is a part of a broader study undertaken on corruption. It addresses issues related to corruption and good governance in the South African (National) Public Service. To articulate and analyse the challenges confronting the country, issues regarding coordination of anti-corruption agencies will be explored. Introduction Corruption is likely to appear on every observer’s list of factors that threaten to obstruct South Africa’s path towards sustainable development. However, rather than diminishing, corruption has proliferated in all segments of the South African National Public Service (SANPS), making it the “common cold” of South African social ills. South Africa is quickly learning that corruption is one of the major impediments to effective development. The greater openness that democracy has brought since 1994 offers new opportunities to deal with the problem of corruption in the context of the country’s new constitutional values. But it also brings a sharper focus on the constraints that corruption imposes on development and the quality of governance. Corruption fundamentally runs contrary to accountability and the rule of law because it undermines governance, diminishes public trust in the credibility of the state, and threatens the ethics of government and society (Heymans and Lipietz, 1999). The more systemic corruption is, the more difficult it becomes to identify it, deal with it, and penalise it. Frisch (1994, p. 60–61) captured this succinctly: ... corruption kills the development spirit – nothing is as destructive to a society as the rush to quick and easy money which makes fools of those who can work honestly and constructively”. Because of the recent upsurge in the number of reports of corruption, South Africa offers an interesting case study of the link between corruption and governance. Such corruption violates the contract between citizens and public officials, and this has serious ramifications for effective government. For this reason, alone, corruption in South Africa merits investigation. The Emerald Research Register for this journal is available at The current issue and full text archive of this journal is available at www.emeraldinsight.com/researchregister www.emeraldinsight.com/0951-3558.htm IJPSM 17,7 586 The International Journal of Public Sector Management Vol. 17 No. 7, 2004 pp. 586-605 q Emerald Group Publishing Limited 0951-3558 DOI 10.1108/09513550410562266

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Page 1: Corruption – the challenge to good governance

Corruption – the challenge togood governance: a South African

perspectiveSoma Pillay

School of Business, Swinburne University, Hawthorne Campus,Melbourne, Australia

Keywords Corruption, South Africa, Public sector organizations, Governance, Development

Abstract The effect of corruption in South Africa has seriously constrained development of thenational economy and has significantly inhibited good governance in the country. South Africa’scomplex political design is a contributing factor to the rise of corruption, which has adverselyaffected stability and trust and which has damaged the ethos of democratic values and principles.Although the South African government has been instrumental in systems to fight the evils ofcorruption, practical problems have increasingly emerged over the years. The most notableproblems are: insufficient coordination of anti-corruption work within the South African publicservice and among the various sectors of society; poor information about corruption and theimpact of anti-corruption measures and agencies; and the impact of corruption on goodgovernance. This paper is a part of a broader study undertaken on corruption. It addresses issuesrelated to corruption and good governance in the South African (National) Public Service.To articulate and analyse the challenges confronting the country, issues regarding coordination ofanti-corruption agencies will be explored.

IntroductionCorruption is likely to appear on every observer’s list of factors that threaten toobstruct South Africa’s path towards sustainable development. However, rather thandiminishing, corruption has proliferated in all segments of the South African NationalPublic Service (SANPS), making it the “common cold” of South African social ills.

South Africa is quickly learning that corruption is one of the major impediments toeffective development. The greater openness that democracy has brought since 1994offers new opportunities to deal with the problem of corruption in the context of thecountry’s new constitutional values. But it also brings a sharper focus on the constraintsthat corruption imposes on development and the quality of governance. Corruptionfundamentally runs contrary to accountability and the rule of law because it underminesgovernance, diminishes public trust in the credibility of the state, and threatens theethics of government and society (Heymans and Lipietz, 1999). The more systemiccorruption is, the more difficult it becomes to identify it, deal with it, and penalise it.

Frisch (1994, p. 60–61) captured this succinctly: “ . . . corruption kills thedevelopment spirit – nothing is as destructive to a society as the rush to quick andeasy money which makes fools of those who can work honestly and constructively”.

Because of the recent upsurge in the number of reports of corruption, South Africaoffers an interesting case study of the link between corruption and governance.Such corruption violates the contract between citizens and public officials, and this hasserious ramifications for effective government. For this reason, alone, corruption inSouth Africa merits investigation.

The Emerald Research Register for this journal is available at The current issue and full text archive of this journal is available at

www.emeraldinsight.com/researchregister www.emeraldinsight.com/0951-3558.htm

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A consistent thread running through this paper is recognition of the need tochange the conduct of government within the context of good governance. However,it is difficult to maintain conceptual and analytical coherence – partly becauseSouth African governmental reform is constantly in a state of transition and flux.

With the increasing attention being paid to the threat to good governance in theSANPS by corruption, and to the reality of limited state capacity, it becomes importantto explore the complex dynamics that characterise the impact of corruption on goodgovernance and public administration.

Public administration, governance, and corruptionConcerns about corruption in South Africa have intensified in recent years. Calls forbetter public administration – including calls for greater efficiency, transparency, andintegrity in public institutions – are driven by a number of factors:

. the increasing realisation that achievement of the country’s objectives is possibleonly by improving governance and preventing corruption;

. the observation that corruption in the SANPS reinforces the unequal distributionof opportunities; and

. the fact that corruption threatens democracy, which is the basic premise of goodpublic administration.

In the context of good public administration and governance, the main objectives of theSANPS should be:

. improving the investigation and prosecution of corruption;

. rationalising the agencies combating corruption;

. reviewing present legislation; and

. improving management systems and discipline at all levels of government.

Understanding governance – a conceptual frameworkKaufman et al. (1999) described governance as “traditions and institutions by whichauthority in a country is exercised for [the] common good”. This includes:

. the process by which governments are selected and replaced;

. the capacity of the government to formulate and implement sound policieseffectively; and

. the respect of citizens for the institutions that govern economic and socialinteractions among them.

According to Thompson (1996), governance is “ . . . the act or manner of governing, ofexercising control or authority over the actions of subject, a system of regulations”.Fitzgerald et al. (1997) amplified this definition by describing governance as “workingand listening to citizens in order to manage the public’s resources and respond to theneeds and expectations of citizens as individuals, interest groups, and society as awhole”. Governance includes active cooperation and engagement in policy processesamong all stakeholders, including citizens. An associated term, as described by Reddyand Clarke (2000), is “people centered governance” – which can be characterised aspartnerships between government and society in which consultation is a key issue.

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The concept of “governance” can be used descriptively or prescriptively. Indeed, itis a term without agreed usage (Minogue et al., 1998). The term has recently evolvedfrom the traditional public administration concept of “governing”. It developed fromthe descriptive, positivist public management school of thought – which initiallyintended to give new meaning to the traditional role of government by focusing on theeffectiveness and efficiency of the outputs and outcomes of governmental actions.

One way of looking at the characteristics of “good governance” is to contrast it withwhat can be called “malgovernance” or “misgovernance”. Another way of approachingthe concept is to understand what it means in itself. A third way is to look at thepotential benefits of institutionalising good and sustainable governance (Khan, 1998).

Good governance and corruption: conceptualising a South African profileAs a result of personal experience, as well as academic argument, the problem ofcorruption has captured the minds of all South Africans who are committed to goodgovernance. It is important to note that corruption is not limited to the actions andattitudes of politicians and public servants. Rather, the problem is widespread.Nevertheless, the problems and challenges in the public service cannot be ignored.It must also be recognised that the negative consequences of corruption represent onlyone side of the coin. Any focus on corruption must be coupled with an equivalent focuson the positive aspects of good governance.

With the advent of democracy in South Africa in 1994, the newly elected governmentand the people of South Africa inherited a distorted system of governance – withinstitutions that were in direct conflict with the imperatives of sustainable economicgrowth, social development, and reintegration into the world economy and thecommunity of nations.

South Africans were faced with a daunting challenge in transforming the country toaddress the deeply entrenched poverty affecting millions of people, a racially polarisedsociety (in terms of wealth distribution and opportunities), and a brutalised society withintolerably high levels of violence, corruption, social disintegration, and moral decay.

When it joined the community of nations by signing the Copenhagen Declaration in1995, South Africa achieved another important milestone in its history as a youngdemocracy (Zuma, 2000). South Africa’s commitments at this time held specialsignificance for South Africans – as they still do today. These commitments were toaddress poverty, promote social integration, create an enabling environment for socialdevelopment, promote full employment, and mobilise resources for social development.Democracy, good governance, and the respect for human dignity were said to form partof the very nature and culture of Africans (Zuma, 2001). However the ideals ofdemocracy and good governance cannot be sustained without a secure and stableenvironment. Hennesy (1997) has argued that sustainability in a globalised economy isforemost among the characteristics required of a nation that hopes to flourish.

The World Summit on Sustainable Development in 2002 highlighted South Africa’splan to base sustainability and development on three “pillars” – one of which was“good governance” (Sunday Times, 2002).

According to Paragon Regional Governance Programme (1999), governancestrengthens the enabling environment for sustainable development. Lack of concern forgovernment corruption, centralisation, and low levels of effective community participationare three significant impediments to governance in the South African Public Service.

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Governance matters for development outcomesIn a developing context, the features of corruption become critical to the institutionaland social dimensions of development (Heymans and Lipietz, 1999). The rules andpractices of governance shape the foundations of sustainable development are shaped,and if these rules and practices are not effectively monitored and applied, the verybasis of development is compromised.

In the past, only developing countries were perceived to be plagued by corruption.However, more recently, developed countries have also come under the spotlight, and ithas become apparent that corruption is also entrenched in industrialised, democraticsocieties. Corruption is especially harmful in developing countries because thesecountries tend to have fewer resources, and need to use these scarce resources in themost effective manner (Camerer, 1997). The developmental approach of the 1960sassociated corruption with the process of modernisation. Every modernising systemwas regarded as being susceptible to corruption, as had been the case in Westernsocieties – which had manifested peak levels of corruption as they experiencedsocio-political development. Corruption in developing countries was therefore assumedto be part of the natural maturation process (Werner, 1983).

Development is closely associated with democracy and state building.Democratisation makes the state more transparent and more responsive to socialneeds. This, in turn, strengthens the state by enhancing its legitimacy and byintegrating different entities (Daddiah, 1999). Kaufman et al. (1999) extended thisassociation by developing the concept of the “development dividend” for bettergovernance. According to these authors, an improvement in governance leads to a two-to four-fold improvement in per capita incomes, a comparable decrease in infantmortality, and a 20 per cent improvement in adult literacy. These results are a resultof a causal effect between better governance and better development outcomes.This type of evidence, along with a large and growing body of research, places goodgovernance at the centre of the development agenda. Social cohesion is necessary if theSouth African Public Service is to adapt to the impact of globalisation.

Causes of corruption in the SANPSThe causes of corruption in South Africa are contextual – rooted in the country’sbureaucratic traditions, political development, and social history. The empirical part ofthis study revealed that corruption has flourished as a result of institutionalweaknesses. The normal motivation of public-sector employees to work productivelyhas been undermined by many factors – including declining civil service salaries andpromotion unconnected to performance. Staff members have also been demoralised bydysfunctional government budgets, inadequate supplies and equipment, delays in therelease of budget funds, and a loss of organizational purpose. The motivation to remainhonest has further been weakened as a result of senior officials and political leadersusing public office for private gain. In summary, the major contributions to corruptionin the SANPS have been:

. undesirable social controls;

. antiquated laws;

. excess demand;

. entrepreneurial politics;

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. bureaucratisation;

. excessive discretion; and

. defective administrative arrangements (including inadequate controls).

Widespread corruption in the SANPS has brought about injustice, inefficiency,mistrust of the government by the citizens, waste of public resources, discouragementof enterprise (especially foreign enterprise), political instability, repressive measures,and restrictions on government policy.

Transformation to good governance in South AfricaCorrupt practices threaten to undermine both the growth and the stability of globaltrade and financial system. This is especially applicable in emerging and developingeconomies. As emerging economies open their doors to foreign investment and trade,corruption tends to thrive.

Having a strong national state is one of the ways whereby South Africa can be aninfluential player in global forums. In its international relations, South Africa has somebearing on global issues that affect South Africa itself, the Southern Africandeveloping communities, and Africa as a whole (Fraser-Moleketi, 2000).

In the 21st century, people throughout the world are increasingly rejecting thenotion that corruption is inevitable. Success in eradicating corruption depends onimpartial democratic institutions, open elections, and unfettered access to information.Success also requires leadership and active participation by citizens. Promotingintegrity in government and the marketplace improves the global governance climate,nurtures long-term growth, and extends the benefits of prosperity to all people. Thechallenge for the 21st century is to ensure that transformation activities are integratedwhile taking cognisance of what is happening around the globe. Clearly, as a memberof the developing world, South Africa should also ensure that it has an influence in theglobal debate to define the role of the state, and in particular, a developmental state.

South African President Mbeki, in his speech on the occasion of the budget vote inJune 2000 stated that “the system of governance we are working to create is radicallydifferent from the one we inherited. It is focused away from repression, control and themanagement of people. It is targeted at helping us to meet the provision laid down in theconstitution of improving the quality of life of all citizens and freeing the potential ofeach person. Accordingly, ours must be a developmental state” (Fraser-Moleketi, 2000).

The 1994 South African Constitution introduced one of the world’s most elaboratedemocracies. It revolves around executive accountability to the legislature, anindependent judiciary, and decentralised governance within a unitary state. Theconstitution also provides for institutional mechanisms such as a Public Protector,a Constitutional Court, and an Auditor-General. Taken together, these facets of the newconstitutional order create conditions for an accountable government in the besttraditions of democracy (Mafunisa, 2000). This is in tune with a more globally heldview that tackling corruption is inextricably linked to increased transparency andaccountability founded on a transition to democracy. Although South Africa can takecomfort from this, it should nevertheless be wary of cases in which democratisationhas actually increased the sources and scale of corruption without strengtheningcountervailing political or institutional capacity. Two tools for good governance will beexplored in this study – the Constitution of 1996 and the Batho Pele document.

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Tools for good governanceThe South African constitution, 1996 (Act 108 of 1996)In South Africa, the Constitution of 1996 (Act 108 of 1996) has provided anindispensable mechanism for South African national public servants to address thescourge of corruption. This is reflective of an overall commitment to greater opennessand transparency in government – as opposed to the secretive and unresponsiveculture that characterised public administration during the apartheid regime (Giorgi,1999). South African experiences over the years have made society acutely aware of thedangers of a government that is neither transparent nor accountable.

Section 195 (1) of Chapter 10 of the constitution sets out the basic values andprinciples governing public administration. These include accountable publicadministration and the promotion of a high standard of professional ethics. Therelevance of this section of the constitution is underpinned by the fact that the fightagainst corruption has become of such a magnitude that it requires a differentapproach. The constitution also encourages citizen participation in issues ofgovernance. Active citizen participation is an essential ingredient in any democraticdispensation because it ensures that the government of the country remains “on track”and that public officials serve the general welfare of society (rather than pursuing theirown interests) (Auriacombe, 1999). To this end the South African constitution containsseveral mechanisms to ensure that government will be part of solution, rather thanbeing part of the problem. Public awareness and participation in maintaining efficiencyin government are vital to making a reality of democracy in South Africa (Mandela,1996). Having achieved democracy and stability, as demonstrated in the most recentelections, the challenge now facing South Africans is to translate this mandate intoconcrete programs of action. The South African government has developed programsto ensure delivery of quality services to the people and to grow the economy throughthe creation of wealth, while combating crime and corruption (Zuma, 1999). TheConstitution thus provides a rich store of ethical substance to inform and guide. It doesthis by stating the democratic ideal, by indicating the core values underlying that ideal,by ensuring the rights of people, and by setting certain key requirements for theconduct of public administration (Wessels and Pauw, 1999). This is imperative becausepublic servants are at the coalface of service delivery.

What is therefore contemplated in the provisions of Section 195 (1) of Chapter 10of the constitution is a transformed public service within the broader context ofdemocratic transformation and good governance.

The White paper on transformation of the public service, 1997 (Batho Pele)The White paper on transformation of the public service (WPTPS), also known as theBatho Pele policy, was introduced in 1997 to provide a policy framework and practicalimplementation strategies for transformation of public-service delivery. The policystrongly signalled the government’s intention to adopt a citizen-oriented approach toservice delivery, informed by the eight principles of consultation, service standards,access, courtesy, information, openness and transparency, redress and value formoney. In line with constitutional principles, the WPTPS provided a framework thatenabled government to develop strategies promoting good public administration.Chapter 11 of the WPTPS required government, among other things, to improvepractices that promoted good governance (Republic of South Africa, 1997).

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In realising the principles of the Batho Pele, four categories of initiatives wereclassified by Diphofa (2002) as promoting public-service delivery:

(1) Efforts that seek to transform and improve the back-office operations of theSANPS – including the improvement of systems, work processes, andinstitutional structures that collectively make service delivery possible.

(2) Efforts that seek to transform and improve the front-office operations ofgovernment – the actual interface between government and the public,representing how the public experiences government.

(3) Efforts that seek to improve internal communication – involving efforts to promotecommunication within government about service-delivery transformation andabout the critical role that the public service plays in the lives of citizens.

(4) Efforts that focus on external communication – to inform and build awarenessamong citizens as to their rights and reasonable expectations in service delivery.

The adoption of a transformed regime in the public service obviously calls for there-engineering of the public service (Khoza, 2002). Therefore, to ensure service deliverythat is envisaged in the constitution and the Batho Pele, a transformed public service isa sine qua non. The success of the Batho Pele as a tool of service delivery dependsheavily on a transformed public service capable of understanding and implementingnew government policies.

The changing milieu of the South African public serviceThe changing milieu of the South African public service has become increasinglycomplex over the years – bringing varied and growing challenges in servicedelivery.

The unpredictability of change is a key characteristic of the contemporary world(Wessels, 1999). South African corruption is a manifestation of many social tensionsresulting from an environment that is in a constant state of flux. In South Africa’scomplex political economy, these tensions have given rise to several forms ofcorruption. The new social forces governing South Africa have historically beenexcluded from the economy, but now control state power, and are responsible fordelivering services to previously excluded and marginalised people. However, the newadministrative cadre finds itself stifled by a bureaucratic, rule-bound public system.Bribery, fraud, nepotism, and systematic corruption are common forms of corruption incontemporary South Africa (Public Service Commission Report, 2001a). It has thereforebecome necessary for several state agencies to be put in place to combat and preventcorruption in the SANPS.

In October 1997, the South African Cabinet noted that consultation with existinganti-corruption agencies was necessary to reduce fragmentation in the ongoing fightagainst corruption (Public Service Commission Report, 2001b). A year later, the PublicSector Anti-Corruption Conference resolved that government should explore the needfor a co-ordination structure while improving and strengthening the role of existingagencies and similarly, that it should review the scope and jurisdiction of existingagencies. The Public Service Commission, as an oversight body responsible formonitoring and evaluation, was mandated to play an active role in evaluating theeffectiveness of anti-corruption agencies and to suggest necessary improvements.

The anti-corruption agents in existence are:

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. constitutional and oversight bodies (Office of the Auditor-General, Office of thePublic Protector, Office of the Public Service Commission, IndependentComplaints Directorate);

. criminal justice agencies (SAPS Commercial Crime Unit, SAPS Anti-CorruptionUnit, National Prosecuting Authority, Directorate of Serious Operations, AssetForfeiture Unit, Special Investigating Unit, SIU); and

. other players (Department of Public Service and Administration, NationalIntelligence Agency, South African Revenue Services, National Anti-CorruptionForum).

Each of these has a specific function, as spelt out in its enabling legislation orregulations. Combating corruption is not the primary function of any of theagencies – with the exception of the SIU and the South African Police ServiceAnti-Corruption Unit. Certain of the agencies are able to exercise discretion with regardto cases of criminal misconduct, which might include corruption. However, withongoing restructuring of the public service, there is uncertainty regarding the future ofsome of the agencies. For example, with five of the regional offices of the South AfricanPolice Service Anti-Corruption Unit closed down, there is much uncertainty regardingits future. The same is true of the Commercial Branch of the South African PoliceService.

In terms of rationalising certain directorates, the Directorate of Special Operations(DSO), commonly known as “the Scorpions”, now forms part of the NationalDirectorate of Public Prosecutions (NDPP). However, the former Special Directorateson Organised Crime and Public Safety, Serious Economic Offences and Corruptionhave not been formally restructured in terms of their operations – other than to resideunder the DSO.

Mechanisms built into legislation to avoid turf wars and functional overlap have notbeen activated. For example, the operating arrangements between the DSO and othercriminal justice components (such as the South African Police Service) that should bespelt out by the Ministerial Committee (as required by S31 of the National ProsecutingAuthority Amendment Act) have not been finalised.

Combating corruption requires a dynamic and multi-faceted strategy that usesscarce resources effectively on a constructive, shared basis. The development ofa simple, clear national strategy for combating corruption that makes use of existingcapacity is more of a priority than the creation of a single anti-corruption agency.

A key element of such a national strategy should be efforts to prevent corruptionand to make corruption unacceptable. This will require long-term education and theraising of awareness. Sensational moral crusades that are punitive and media-drivendo little to address the realities of the problem, and often serve to polarise people andconfuse issues. Organizational mandates are distinct and unique, and they do notalways prioritise corruption as a problem.

A single anti-corruption agency for South Africa – the challenge aheadThis section explores the possibility of a single anti-corruption agency and thechallenges that exist. Much of this section is derived from material contained ina report prepared by the Office of the South African Public Service Commission(Public Service Commission Report, 2001a).

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ResourcesIn terms of resources, many of the bodies audited in the report have insufficientfinancial and human resources to carry out their mandates. This raises questionsregarding the political will of government to ensure the functioning of certain keyinstitutions. In certain cases, the lack of resources constrains the effectiveness ofagencies. For example, the Independent Complaints Directorate, which is supposed tohave about 500 staff, is able to employ only 100 with its budget – which, in real terms,has remained static. Similarly, the Office of the Public Protector, which is supposed tohave about 200 staff, is able to fill only half of these posts due to insufficient resources(Public Service Commission Report, 2001a).

The discrepancies between the budgets and resources of certain agencies is a causefor concern. For example, the Directorate of Special Operations has an inordinatelylarge budget, whereas other bodies, such as the South African Police ServiceCommercial Crime Branch has a restricted budget to investigate ordinary reportedcases of crime. The difficulties in securing evidence for corruption convictions shouldbe a motivation for specialised training – primarily for the DSO.

Internal integrity mechanisms, beyond screening of personnel, seem to be acquiringa greater significance in most agencies. Anti-corruption agencies are a target fororganised criminal elements and have to be beyond reproach when it comes to theirinternal integrity.

Public interaction through promotional material, public information campaigns,and so on, is variable across agencies. This is definitely an area that requires attention.It is vital that individual citizens (as potential complainants) be made aware of who canhelp in particular instances. Greater information and awareness of the mandates andfunctions of agencies is likely to reduce inappropriate confusion of agency rolesand unnecessary referral of cases.

Case informationThe absence of comprehensive information on corruption cases dealt with by theagencies is a matter of concern. For instance figures on corruption cases resulting ina conviction are currently non-existent within the National Prosecuting Authority.The nature of corruption being dealt with by each agency is often not clearly specified(for example, in terms of bribery, maladministration, and so on).

Within the criminal justice system, the apparent low priority given to informationsystems to capture information on corruption is a problem (Mafunisa, 2000).Using current data, it is generally not possible to determine the extent of corruption inSouth Africa. However, there are exceptions. The Independent Complaints Directorate,the South African Police Service Anti-Corruption Unit, and South African PoliceService Commercial Crime Branch stand out in terms of having readily availablefigures.

There are significant backlogs of corruption-related cases – particularly within theSouth African Police Service Commercial Branch and SIU. Specialisation within theprosecution service, in the form of specialised commercial crime courts has offeredsome relief to the South African Police Service and Directorate of Special Operations.There are plans to extend these commercial crime courts, which have been veryeffective. Some of the agencies expressed a desire to see specialisation within thejudiciary – in particular with respect to highly complicated corruption and related

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cases (such as asset-forfeiture issues). Many cases are dealt with by an agency not bestplaced to deal with the complaint. This is particularly true of the Public ServiceCommission, the Public Protector, the Independent Complaints Directorate, and theDSO. The referral of such cases among agencies is apparently not tracked in a formalcomprehensive fashion – although the Independent Complaints Directorate keeps arecord of all referrals. There is no record as to the outcome of referred cases, largelya result of limited follow-up capacity.

Performance and effectiveness indicators among agencies vary according to theirspecific mandate. In general, bearing in mind resource constraints, agencies oftenexpress dissatisfaction with present arrangements. In certain cases, such as the DSO,performance indicators are still being developed. The challenge seems to be topersuade the public that the agencies currently tasked with preventing and controllingcorruption are, in fact, performing. The breakdown in public confidence with thecriminal justice system seems to stem from the apparent lack of visible justice anda lack of high-profile convictions for corruption-related cases.

CoordinationInformal interaction between the various agencies tasked with fighting corruptiontakes place on a regular basis – in particular between certain investigating agencies(such as the South African Police Service and the DSO) and the prosecuting authorities(who have a monopoly over the prosecution of cases). However, there is no formalagreement between the key agencies with regard to coordination of case-relatedinformation. The need for coordination has been repeatedly stressed by all agencies.A draft Memorandum of Co-operation (that was not signed in 1999) tried to addressthis issue among the following agencies: SIU, Public Protector, Auditor-General, SouthAfrican Police Service, and NDPP.

In the investigation of criminal corruption, the police are the primary agents taskedto deal with criminal issues such as fraud, bribery, and extortion. The DSO is ina position to deal with high-level, organised, criminal corruption.

Investigations into other aspects of corruption (such as ethical transgressions ormaladministration) are conducted by agencies such as the Public Protector, the PublicService Commission, and the SIU. Coordination of these efforts with the criminalaspects is necessary if duplication is to be avoided.

Each agency sees its anti-corruption role as distinctive. It is important to recognisethat the original reasons for the creation of each of the agencies still exist, even thoughsome overlap of functions has emerged.

Areas of specialisationEach of the agencies has its own special focus:

. The Auditor-General has a unique role in fighting corruption – that of proactiveprevention. Through its small forensic auditing division, this agency is able tofollow up on “red flag” issues that are picked up during routine auditing. It canthen provide assistance and cooperation. The office is not responsible for theprevention and detection of economic crime in the public sector; rather, this isperceived to be the responsibility of management (as accounting officers).

. The Public Protector does not play a role with regard to corruption in the narrowcriminal sense. Rather, it identifies and refers these cases to the relevant agency

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(such as the National Prosecuting Authority). Non-criminal cases of broadlydefined corruption involving ethical transgressions (such as conflicts of interest,or code-of-conduct transgressions) are investigated by the Public Protector’soffice – which has the power to make recommendations.

. The Public Service Commission plays a key role with regard to public-servicecorruption in terms of prevention, oversight, monitoring, and investigating.A small investigating unit has been established to deal with anti-corruptioninvestigations within the public service.

. The Independent Complaints Directorate has discretion to investigate cases ofpolice misconduct, including corruption. These cases are fairly simple and do notrequire extensive resources – because corruption is not a priority for thisdirectorate.

. The South African Police Service Commercial Branch has the primary functionof investigating criminal offences, including corruption.

. The South African Police Service Anti-Corruption Unit has a very clear focus oncorruption, and is responsible for investigating cases of alleged corruption bymembers of the South African Police Service. This unit follows a reactive andproactive approach.

. The National Prosecuting Authority is the only body that can prosecute criminalcases of corruption.

. The Directorate of Special Operations (using the “troika principle” of intelligence,investigation, and prosecution) is able to deal with organised, high-profile,complex corruption.

. The Asset Forfeiture Unit has the capacity to investigate cases and to seize orfreeze assets that are related to criminal offences of an organised nature.

. The Department of Public Service and Administration has a policy andstrategic-planning role with regard to anti-corruption issues in the publicsector.

The existence of these various agencies makes it apparent that South Africa has madesignificant efforts to address corruption. However, the existence of so many agenciesrequires effective coordination. There is overlap between the functions (particularlywith regard to investigations) of certain existing anti-corruption agencies, and rationalprinciples should be applied to address the situation (Public Service CommissionReport, 2001b). Complainants often approach a variety of agencies to deal with specificmatters. A lack of information sharing at the entry stage of an investigation leadsto a waste of investigative resources on the same case. One strategy could be thecreation of a clearing house at which decisions can be made as to who can dealwith the case most effectively, and how a balance can be struck between variousapproaches.

The Public Service Commission Report (2001a) revealed the following areas ofoverlap between the agencies:

. The Office of the Auditor-General maintained that there is overlap between thework being done by its office, the Public Service Commission, the SIU, and evenIDSEO.

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. The Public Protector believed that there is overlap, particularly with respectto itself and the SIU (where “maladministration” is included in the SIU Act).The legislation is confusing.

. The Public Service Commission deals with maladministration, as does the PublicProtector and the SIU.

. The functions of the Independent Complaints Directorate overlap with those ofthe South African Police Service Anti-Corruption Unit, but the Anti-CorruptionUnit does most of the investigating work of cases referred to the IndependentComplaints Directorate.

. The investigations of the South African Police Service (Commercial Branch) intocorruption overlap with those of the DSO – which is in a position to“cherry-pick” the type of cases it will deal with.

. The work of the South African Police Service Anti-Corruption Unit overlaps withthe Independent Complaints Directorate, and there is close interaction with theSouth African Police Service.

. The DSO overlaps with the South African Police Service in investigatingcorruption cases. The Ministerial Committee, which has to devise protocols as tohow the various criminal justice agencies interact, has yet to finalise these.

. The Asset Forfeiture Unit has some overlap with the South African PoliceService and significant overlap with the SIU.

. The SIU overlaps, to some extent, with the Asset Forfeiture Unit and the PublicProtector.

It has often been suggested that South Africa should follow the example of otherjurisdictions (such as Hong Kong, New South Wales, Botswana, Malawi, andTanzania) by establishing a single agency to fight corruption. An alternative strategyis strategic coordination among existing bodies that have an anti-corruption mandate.

The literature on corruption has noted that arguments for the establishment of anindependent anti-corruption institution indicate the inability of existing governmentinstitutions to fight corruption effectively. The main reasons for an independentanti-corruption agency are the very low efficiency of the existing state agencies(especially the supervisory, law-enforcement, and court structures) and the lack ofpublic trust in them.

Anti-corruption agencies can be effective in combating corruption in only a limitednumber of contexts – because the variables behind their success are complex andspecific to individual countries. In this regard the often-cited Hong Kong model of anIndependent Commission Against Corruption comes to mind.

However, the extent to which the “Hong Kong model” is transferable to South Africais unclear – because the Hong Kong model is very much a product of its own particularsocial environment and polity. Policies that fail to take into account the uniquehistorical context and the current fiscal environment are doomed to failure.

Views of existing bodies on the creation of a single anti-corruption agencyAgency-specific comments on the proposal for a single agency included the following(Public Service Commission Report, 2001b):

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. The Auditor-General believed that such an agency would need to have strongleadership. The DSO could be this anti-corruption agency.

. The Public Protector maintained that the advantages of such a body would bemany, but that the practicalities involved seemed insurmountable;

. The Public Service Commission argued that although the ideal of a single agencyheld much appeal, it was not seen as viable.

. The Independent Complaints Directorate expressed reservations aboutanother independent body because this might further confuse complainants.The Independent Complaints Directorate favoured an overarching network ofbodies “where each of their parameters/roles are very clearly defined so thatthere is no overlap”.

. The South African Police Service Anti-Corruption Unit has offered strongsupport for a single anti-corruption agency similar to the Hong Kong model, withits location being within the South African Police Service.

. The DSO was opposed to the establishment of a single anti-corruption agencyand believed that systems to fight corruption effectively in South Africa werealready in place;

. The Asset Forfeiture Unit envisaged the establishment of a single agency,probably under the NDPP or alongside the NDPP where people could go,and from which most serious corruption cases would be coordinated and dealtwith.

. The Department of Public Service and Administration was in favour of a singleanti-corruption agency. However, the design and resource of it was perceived tobe complex and would require further research (because of the need to rationalisethe functions of other agencies).

Important strategic decisions need to be taken as to the proposed functions and focusof a new single anti-corruption agency – because decisions on these matters willdetermine key operational features. One approach would be to follow the Hong Kongmodel and adopt a three-pronged approach that includes prevention, investigation,and public awareness (Camerer, 1999). Before embarking on the creation of adedicated organisation more thought and discussion is needed on each of these threeelements – to ensure that a precise niche is defined.

Establishing an anti-corruption agency needs high-level political support, as well asthe necessary political conditions under which it will operate successfully. Even if thedetermination to tackle corruption is strong, it often diminishes as the realities of office,the vested interests in the status quo, and the pressure of more immediate tasks bear onthe actions of government. Political will relates to the commitment of political leadersto institute action around a specific policy objective – in this case, fighting corruption– and to ensure that the necessary elements for such a policy to succeed are in place.Without the necessary political support to provide the resources, powers,independence, and accountability mechanisms required for such an agency, it willnot materialise. In South Africa, the official commitment to fighting corruption has yetto be clearly demonstrated by decisive actions.

Under the UN Global Programme Against Corruption, the South Africangovernment has entered into a two-year agreement that includes a dedicated

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research project into what is known about corruption in South Africa as well asconducting a base-line integrity survey (Fraser-Moleketi, 2003). It is important that anystrategy adopted to fight corruption takes into account the findings of the UN studyaimed at providing information on the following areas:

. types of corruption (high-level, low-level, political, economic);

. areas of corruption (government, executive, legislature, judiciary, centralbureaucracy, local government, private sector, financial system); and

. effects (political system, democratic development, law and order, economicgrowth, civil rights).

Challenges to be addressedIn reviewing South Africa’s National Anti Corruption Program, the Public ServiceCommission Report (2001a) revealed that certain challenges needed to be addressed.These are discussed below.

Competition for scarce resources. Setting up anti-corruption agencies with theability to investigate (as well as prevent) corruption will require substantial funding ifthose agencies are to be effective. Corruption cannot be fought effectively without aninvestment of national resources, and political resolve is required if this nationalproblem is to kept on the agenda and translated into voted public funds. Theanti-corruption initiative will inevitably compete with other political issues that requireresources – such as job creation, poverty, HIV/AIDS, and crime and security.

Other than the DSO, many of the agencies (especially the constitutional andoversight bodies) are struggling to fulfil their existing mandates with currentresources. The proposal of a single agency is likely to meet resistance from existingagencies that will be fearful for their own institutional survival.

Specific skills and expertise (in terms of corruption prevention, investigation, andcommunity relations) would be required. The complicated forensic and legalinvestigations that surround corruption cases require skills that are already muchsought after in South Africa. There is a fear that a new agency could strip the police oftheir limited capacity for dealing with criminal investigations and compete with anagency like the scorpions for trained staff.

Effective powers could undermine accountability. Corruption often involves subtleconsensual relationships that are protected by a culture of silence and loyalty.Moreover, such relationships often involve sophisticated financial dealings. Thesearrangements can be more sophisticated than the experience and training of existinginvestigating officials. Special powers might be required – including powers ofinspection and questioning, power to confiscate evidence, and power to conductcross-border investigations.

Some of these powers might not be palatable in the South African human rightscontext. Powers of search and seizure and power to compel witnesses to testify alreadyexist in various forms under South African law (for example under the SIU). However,a specific law to create an anti-corruption body would have to draw such powerstogether and would have to include sufficient safeguards, checks, and balances toensure that such powers were not abused.

There is a very real concern that, in certain circumstances, an anti-corruptionagency might become the political police of a corrupt regime. Ensuring accountabilityis a significant concern in such a context.

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Independence as an institutional priority. A single agency must be operationallyindependent and must function without fear or favour – along the lines of the bodiesenshrined in Chapter 9 of the constitution. All officers responsible for the fight againstcorruption must be shielded from political, economic, and personal pressures.In particular, the operational independence of an agency – within its specificparameters – must be guaranteed. The concern is that such an agency could be subjectto political interference.

To maintain public trust and credibility, the independence of such an agency wouldneed to be enshrined in national legislation, if not in the constitution. Interference withits operational independence should be a criminal offence. Effective leadership will beneeded to resist potential interference and to protect the agency’s operationalindependence. However, constructing another complicated statutory or constitutionalbody is not in keeping with the general drive to consolidate the institutions ofdemocratic governance. Given the pressing needs of the existing bodies, the prospect ofdedicating significant resources and energy to plan and build an effectiveanti-corruption organisation would be a significant new challenge for South Africa.

Oversight, accountability, and reporting arrangements. Establishing ananti-corruption agency with extensive legal powers in the absence of effectiveoversight is a risky procedure. The major planks of oversight are the rule of law andthe existence of a professional legal system to supervise the special powers of theagency and to challenge its operations in the courts.

In terms of accountability, such an agency should be accountable to theSouth African public – reporting to a special parliamentary committee set up for thispurpose (as in New South Wales). This committee would be made up of members fromall political parties and would exercise oversight over the operations of the agency(similar to the role-played by the committee on intelligence oversight). The head ofthe agency would need to report to parliament on an annual basis, and to the committeewhen required. The arrangements would require significant investment in theoversight body, as well as in the agency itself.

Public interaction as an essential component. Anti-corruption agencies requireeffective links with civil society – both to utilise citizen reports as a major part of theirstrategy and to build up public support. If little is done to involve the community in thework of the agency, the inevitable result will be public distrust of the agency and afailure to provide information. Without information, the agency’s investigative powerswill be useless. Furthermore, its preventive and educational work is likely to beignored.

Very few of the existing agencies have effective strategies for interacting with thepublic, and even fewer have polled the public on their views of the organisations andtheir work. Any new agency would need to establish effective public interaction fromthe beginning.

Whether a single agency is the most effective strategy. Anti-corruption agenciescan be effective. However, at their worst, they can have certain disadvantages.These include:

. adding another layer of (ineffective) bureaucracy to the law-enforcement sector;

. diverting resources from existing organisations involved in anti-corruptionwork;

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. functioning inefficiently if unable to target serious or high-level corruption cases;

. functioning as a “shield” to satisfy donors and public opinion (as codes ofconduct have often done in relation to private-sector companies, public-sectororganisations, and government departments);

. delaying the reform of other areas; and

. functioning as a political police.

If such an agency is to be established, a method must be devised to assess itseffectiveness. Much work has been done in the area of effectiveness in Hong Kong andNew South Wales. The substantial costs in setting up and sustaining such an agencyneed to be balanced against measurable benefits as reflected in agreed indicators ofeffectiveness. At this stage it is not clear that such clear and definite benefits will berealised.

Strategic coordination agreed, but not implemented. An alternative approach couldbe to aim to make better use of the existing agencies through improved cooperationand coordination. At present there are serious problems with respect to thecoordination of existing anti-corruption organisations. These problems were identifiedat the November 1998 Public Sector Anti-Corruption conference hosted in South Africa.Mbeki (1998) proposed certain measures aimed at improving the situation:

. determining clear lines of responsibility for different agencies – particularly inrelation to who should deal with particular cases of corruption;

. ensuring informed decision-taking at an early stage to determine whether criminalsanctions, civil sanctions, or internal disciplinary measures will apply – becausedifferent procedures involve different rules, standards of evidence, and speed ofreactions;

. improving the relationships among agencies within the public sector that applyregulations regarding employer-employee relationships – as distinct fromexternal agencies that apply the law; and

. developing an easily understandable regulatory framework to avoid overlap.

In 1999 the South African government decided that a coordinating committee ofrepresentative anti-corruption bodies would meet monthly, but that individualagencies would meet to share information on specific cases whenever necessary.To a large extent, the idea of the coordinating forum was overtaken by events flowingfrom the resolutions of the April 1999 National Anti-Corruption summit. The need forcoordinating mechanisms still exists, and they should be operationalised as well asregularly assessed and evaluated.

According to the South African Department of Public Service and Administration,the Public Service anti-corruption strategy considers the establishment of ananti-corruption agency as its primary strategic consideration, followed by review andconsolidation of the legislative framework and increasing the efficiency of corruptionrelated institutions (Fraser-Moleketi, 2001). However, there is merit in sequencing thesesteps differently. Priority should be given to increasing the effectiveness of existingagencies whose mandate includes dealing with corruption. This is more important thancreating a new independent anti-corruption agency, at this stage. The current review ofanti-corruption legislation focuses on creating criminal offences with respect to

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corruption and ensuring that South Africa is in line with regional and internationalconventions in this respect. Attention should not be focused on legislating foranti-corruption structures at this point.

The public service anti-corruption strategy recognises that part of the process ofestablishing an independent anti-corruption agency is to establish optimal functioningof existing arrangements. A protocol to describe the delineation of functional mandatesand a cooperation agreement are very important and pragmatic steps towards greaterefficiency. It is crucial that the appropriate Cabinet leadership forum is used to“fast track” such an agreement.

An integrated strategy beyond co-ordination. There is a need for coordination ofinvestigations to prevent wastage of limited resources. There also needs to be sometype of dedicated capacity acting as a “clearing-house” for corruption-related cases.

From the discussions thus far, it appears that existing agencies have no integrated,holistic approach to fighting and preventing corruption. The anti-corruption capacitiesof the existing agencies need to be optimally utilised in a holistic and strategicapproach to fighting corruption in the public service in South Africa. Only then can thenext step – a single independent anti-corruption agency that deals with all aspects ofcorruption – be seriously considered.

The institutions that have an anti-corruption mandate have arisen in response tospecific needs. It appears unlikely that all of these – from revenue collection to auditingpublic money – will be replaced by a single agency. Strategic coordination of existingbodies, together with careful consideration of the proposal to establish a single agency,might therefore be required in South Africa.

Institutional mechanisms to address corruption in the South African(National) Public ServicePublic-service reform for addressing corruption has several important dimensions.It starts at the most basic level with making government departments more effective(Heymans and Lipietz, 1999). It is also crucial to ensure that government decisions andthe monitoring of programs are based on sound data and effective internal controls.Sound public administration also requires sound financial systems. The SouthAfricans medium-term expenditure framework (MTEF) has been a significantintervention that obliges national government departments to budget within strategicgoals. South Africa’s Public Finance Management Act also provides a reportingframework that places lines of accountability in place. With the broad strategicdirection already in place, a series of more specific institutional changes is needed toestablish a “clean” and effective public service.

In addition to the attempts made by the SANPS Mbeki (1998) deliberated ona professional framework for discussion among managers. The following wereproposed:

. that ethics in the workplace should be reinforced urgently as a new cultural traitof the public service;

. that political will and a shared commitment should inform the reinforcementprocess;

. that transparency and accountability should be given their rightful place;

. that rules of procedure should be clearly articulated;

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. that the practice of “whistle blowing” should be institutionalised;

. that steps to reward exemplary conduct should be taken;

. that managers should give moral leadership by example;

. that misconduct should always be subject to disciplinary sanctions;

. that integrity training and ethics education should receive priority; and

. that the public interest should be put first.

The above provisional framework was offered to bring together the essential elementsof an ethics management system to eliminate corruption and malpractice in theSouth Africa public service.

It has been argued that one of the major impediments to achievement of thegovernment’s objectives has been the widespread corruption that flourishes in alllevels of society and within the South African public service. Mavuso and Balia (1999)attribute this to a general mistrust of the SANPS by members of the public.The organizational culture of the South African public service needs a paradigm shiftfrom external sanctions (whereby misconduct is belatedly addressed) to strongerinternal control with anticipatory management systems to check deviant behaviour.Both the spirit and the intention of the law must be adhered to, and public trust must beconstantly re-affirmed in the process of good governance. Sound administrative valuesof probity, trust, justice, and fairness must be integrated in the daily work ethic, andmust not be kept separate as an issue of social concern.

It is a fact of life in South Africa that organizational insiders perpetrate themajority of white-collar crimes. The 1999 KPMG Southern African Fraud Survey(Open Democracy Brief, 2001) established that South African public-serviceinstitutions pose the single-largest fraud risk – with respect to both the number offraudulent instances and the rand value of those frauds. Employees perpetrate analarming 75 per cent of frauds – acting either on their own or in collusion with otherparties.

It is significant, however, that 37 per cent of detected fraud is detected as a result oftip-offs from staff members, customers, and trading partners. This statistic demonstratesthe value of maximising every opportunity to obtain information relating to dishonestpractices from employees and trading partners (Open Democracy Brief, 2001).

On a provincial note, the KwaZulu-Natal government is stepping up the fightagainst corruption and fraud with a bill that proposes a new internal audit arm for theprovincial government. This will make KwaZulu-Natal the first province in SouthAfrica to have an audit committee staffed by accounting experts from the privatesector who will be equipped to detect fraud and make recommendations on what stepsshould be taken against corrupt elements within government. The Provincial AuditBill contains stringent anti-corruption measures to halt financial irregularities in alldepartments.

ConclusionSouth Africa has established anti-corruption agencies without proper evaluation andwithout the appropriate structural features – thus adversely affecting theirdevelopment and operational effectiveness.

Issues to consider include:

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. the nature of corruption nationally;

. the capacity of existing institutions to address it; and

. the best way to effect improvements in a realistic way.

Very little empirical information exists on the nature or extent of corruption in thecountry. Daily press reports suggest that corruption has increased with the advent ofdemocracy, but this is unverifiable.

Exceptional political and managerial will are necessary to promote and maintainanti-corruption reform. However, a case study of South Africa, with its unique politicalmake up, demonstrates the difficulties that exist with universalist solutions.

Evaluation of the various characteristics of the South African context – in relation tocorruption, its causes, and its controls – is only beginning. Further research and analysisis required to substantiate the proposal for an independent anti-corruption agency.

References

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Further reading

Act 94 of 1992, Republic of South Africa, The Corruption Act, 1992.

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