Enforcement

Andrew Layman:  PCB CEO

I have been fascinated by two recent public debates in particular. The reason is that the discussion seems to go round and round the point with very little recognition of the fact that there are already measures in place which should render these debates superfluous.

The first of these relates to corruption. While government is being urged to take action and there is talk of new agencies to tackle the problem, no one seems to have remembered that we have a very explicit law on the matter. This is the Prevention and Combating of Corrupt Activities Act, Number 12 of 2004. Essentially, this piece of legislation made all corruption a crime. It is also very clear as to what conduct is considered corrupt, and what is not. Moreover, it established the principle that people who by their tacit condoning, or unjustified ignorance, of corruption are also guilty of a crime. It is worth reminding ourselves as to what this Act says about corruption and the extent of its application. Referees who take bribes, for example, commit corruption, no less than the people who pay the bribes, and should be dealt with in court, not by a sports body alone as a disciplinary issue. This is a fundamental principle of the Act: people who pay inducements are also considered to be guilty of corruption. In a Guide to the Act, published by the Anti-Corruption Forum, one reads: “The Act sets out different types of corruption, all very similar - someone gives (or offers to give) someone something to use their power, illegally and unfairly, to get an advantage for themselves – or for anybody else. The person making the offer is always guilty of corruption. And both parties will be guilty of corruption if the offer is accepted.” It should be noted that this does not apply to money alone (it could be a donation or a gift or even a job), nor does a bribe have to be accepted in order for the person making the offer to be charged. The sanctions are severe and may range from heavy fines to long stretches in prison. And these may also apply to those people who either know of the corruption, or should know of it, but don’t report it. Responsible executives, for example, fall into the latter category. It is considered their responsibility to know what is going on and a kind of detached indifference will not stand as a defence. People who commit corruption in respect of state tenders, in addition to whatever sentences may be imposed by the court, should be listed in the Register for Tender Defaulters and, therefore, not only be named and shamed, but also disqualified from doing any business with the government for at least ten years. In 2008, three years after the launch of the Register, it was reported by Stephen Timm in an article on www.businessowner.co.za that no entry had been made. Questioned, a Treasury spokesperson confirmed that this was so and that only those convicted in court could be listed. You will not find a defaulter listed yet! This implies that very few, if any, people have been convicted in terms of the Act. If the Act is found to be faulty in the sense that convictions are difficult to achieve, one would have a better understanding of the issue, but I am not aware of many people who have appeared in court and been found not guilty. I think that the resources have not been provided for this law to be enforced. And that is the problem, surely. A less charitable view might be that be there is insufficient political will to purse enforcement; another agency or two will reflect due concern, raise awareness, cost a lot of money, and allow the criminal practices to continue.

The second of my fascinations is the proposal by the Democratic Alliance that new legislation should hold unions accountable for the behaviour of their members when they are participating in marches and strikes. As I understand it, a public demonstration or march may not take place unless permission has been granted by the local government authority and in order to secure this, the organisers must signify their compliance with whatever conditions are laid down and provide a number of marshals to ensure that the crowd is controlled. This seems to me to be recognition of the fact that the organisers, the union, are accepting responsibility for the behaviour of the demonstrators, whether they are union members or not. It is quite obvious, however, that this obligation is not taken seriously, either by the union, the organisers who sign, the authority that lays down the conditions or the SAPS who do little to protect the property or rights of non-participants. It comes down to enforcement, as in the case of corruption. We have the tools; we are not using them.

Leave a Comment