Covid-19 corruption tops R14-billion but to bust criminals we need to drastically boost prosecution services and courts

Almost two-thirds (64%) of South Africans say that corruption increased in the past year, including half (49%) who believe it increased a lot. (Photo by Gallo Images / Sowetan / Vathiswa Ruselo)

By Mark Heywood

21 Sep 2021

The findings of a new Afrobarometer survey on corruption in SA reflect public recognition of a sobering truth: there is a gap between political talk against corruption and political action; between findings of misconduct by the SIU and disciplinary action instituted by the departments where they work; between the hounding of whistleblowers and the kid gloves smack given to those implicated in financial misconduct; between investigation and criminal prosecution. If we don’t fix these gaps fast we will lose the war against corruption.

On 1 September Adv Andy Mothibi, the head of the Special Investigating Unit (SIU) presented an update to Parliament’s Standing Committee on Public Accounts (Scopa). There are now so many allegations of corruption under investigation by the SIU that the presentation took up 118 PowerPoint slides and two and a half hours.

The facts Mothibi presented to Parliament were shocking:

Between April 2020 and June 2021 total Covid expenditure by government departments exceeded R138-billion. Of this R14.8-billion — over 10% — is under investigation by the SIU.

24 cases involving a total of R1.39-billion have already been referred for hearings at the Special Tribunal to annul contracts and recover losses.

A total of 4,302 contracts to 2,421 service providers have been or are still to be investigated.

408 of these dodgy contracts are with national government departments, the rest are with provinces.

A total of 214 cases have been referred by the SIU to the National Prosecuting Authority (NPA) for criminal investigation.

South Africans can take comfort from the fact that the SIU’s investigations are flushing out many of the corrupt deals between government officials and businesses. They can take comfort that the Special Tribunal is successfully clawing back some of this stolen money.

But this feel-good factor should not breed complacency.

We are not yet winning the war against corruption.

Some of the thousands of members of civil society take part in an anti-corruption march against the Government, in Pretoria, South Africa, 30 September 2015. According to reports members of some 29 civil organisations and eight unions marched through the streets of South Africa's capital to hand over a memorandum to Government officials. (Photo: EPA/KIM LUDBROOK)

Sadly, it’s the opposite. Despite the herculean and heroic efforts of social movements, the media, whistleblowers and the SIU, from what they observe and experience the public believe that corruption is getting worse. A new Afrobarometer survey of 1,600 adults in May/June 2021 found that:

“Almost two-thirds (64%) of South Africans say that corruption increased in the past year, including half (49%) who believe it increased “a lot.”

“Three out of four South Africans (76%) say people risk retaliation or other negative consequences if they report incidents of corruption, a 13-percentage-point increase compared to 2018.

“Seven in 10 citizens (71%) believe that officials who break the law “often” or “always” go unpunished, while half (49%) say ordinary people who commit crimes enjoy such impunity.

These findings reflect public recognition of a sobering truth: there is a gap between political talk against corruption and political action; between findings of misconduct by the SIU and disciplinary action instituted by the departments where they work; between the hounding of whistleblowers and the kid gloves smack given to those implicated in financial misconduct; between investigation and criminal prosecution.

Paradoxically, the more corruption gets uncovered the wider the gap grows.

For example, the report Adv Mothibi diligently presented to Scopa lists too many instances (perhaps a majority) where, despite the SIU’s recommendations for disciplinary action, the relevant government department “has not yet instituted any disciplinary action.”

The National Department of Health seems to be following this pattern: weeks ago the SIU recommended holding disciplinary inquiries for the DG and Deputy DG over their role in the Digital Vibes scandal. But so far there is no sign of action.

The problem is the criminals know this. Truth be told, most of those who commit tender fraud, tax evasion and other forms of white-collar crime bank (pun intended) on the suspicion that there is little capacity to prosecute them. In the next two years, South Africa needs to deal decisively with corruption and mete out criminal justice in order to be able to move on to reconstruction and social justice. But judging by the current capacity and pace of the NPA and the courts, prosecuting just the Covid-thieves is likely to take a decade.

It will be an albatross around the neck of reconstruction.

Yes, the criminals know this. They gamble that if they are unlucky and get caught out, the worst they may have to endure is a few days of media infamy. They know that the media, like government and civil society, often has a short memory and inability to keep a crowd in its sights rather than a few individuals.

They think if they just sit tight the storm may well pass.

Further, with the proceeds of crime they have already banked they can afford ethic-less attorneys and advocates who for 50 pieces of silver (or R60k a day) will assist them to slow the legal process down interminably.

They only need to look at their comrades. Former Health MEC Brian Hlongwa had SIU findings implicating him in fraud, corruption and nepotism to the tune of R1.2-billion between 2006 and 2009. He’s still free. Jacob Zuma got his get out of jail free card despite allegedly being the chief enabler of the looting.

Many politicians and the UN have declared Covid corruption a crime against humanity. Yet none of the political or business elites wear orange overalls yet. Instead, our prisons are bursting with poor people, many who steal out of hunger and desperation.

The trillion rand/rule of law/future of democracy question is, what is to be done?

We don’t pretend there are easy answers, but we do insist that this is an urgent all-of-society agenda item.

Almost two-thirds (64%) of South Africans say that corruption increased in the past year, including half (49%) who believe it increased a lot. (Photo by Gallo Images / Sowetan / Vathiswa Ruselo)

What are the options?

Do we need to set up and capacitate special anti-corruption courts that can at least rapidly prosecute the R14-billion in Covid-19 corruption? Does the SIU need additional powers of criminal prosecution? If we could have special courts during the 2010 Fifa World Cup, why can’t we have special criminal courts during the Covid-19 pandemic?

Or do we need a new Chapter Nine Integrity Commission, as proposed by Accountability Now: “a specialist body to prevent, combat, investigate and prosecute the corrupt, the downward spiral will take the country to oblivion.” Accountability Now argues that “Only a specialised and well-trained Chapter 9 Integrity Commission, that is independent, well-resourced and secure in its tenure of office, will have the power to bring the corrupt to justice.” Several judges and senior lawyers I spoke to, who worry about the fatal weaknesses in current institutions, agreed with this approach.

In a clever act of advocacy, Accountability Now have already developed and presented an example of a draft Bill to set up an Integrity Commission to Parliament, which Parliament has studiously ignored — violating the constitutional spirit of public participation.

One thing on which there is consensus is that, with the murder of honest Gauteng Department of Health official Babita Deokoran still fresh in our memories, it is vital that we take concrete and urgent steps to improve whistleblower protections.

As was evident from proposals made by Thuli Madonsela and Willie Hofmeyr in a webinar co-hosted by Maverick Citizen and the Health Sector Anti-Corruption Forum this week (watch it here), there are concrete steps that could be taken immediately, if there is really political will to empower honest citizens against the thieves.

We have said it before and will say it again, South Africa needs to fight corruption on every front. When it comes to reports of corruption there needs to be a continuum from the mouth of the whistleblower to the gates of the prison, with no weak institutional links along the way.

In a rather bleak assessment on the future of rule of law in South Africa Professor Balthazar writes that “it is hard to see the long-term future of the rule of law in South Africa unless civil society rises to defend the principle and with it the idea of constitutional democracy.”

Once again the responsibility is put on activists outside government to mobilise! But the good professor is right. However, to do this, civil society needs to get out of its silos, work on expanding its attention span beyond what its funders require, end its paralysing petty politics and judge ideas by their weight and necessity, not assumptions and prejudgments about their authors.

Too much is now at stake.

Our country is buckling under unprecedented levels of poverty, hunger, unemployment and despair. As the July riots showed us, this is unbearable and will explode again. We have to give people tangible reason for hope. The billions that get stolen or wasted could make a huge difference in many people’s lives. But unless we can make crime pay, the cancer will metastasize. DM/MC

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