LEGISLATION GOVERNING CORRUPTION IN SOUTH AFRICA

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CHAPTER 2: A CONTEXTUAL OVERVIEW OF CORRUPTION

INTRODUCTION

The more we know about the causes of corruption, the better equipped we will be to decide which policy, instruments, and legislation to use to combat corruption. In this chapter, the applicable legislation governing corruption in South Africa is presented and specific sections of these acts are briefly explained. The review of the legislation will depict the background to the functions of the SAPS, as well as the authority and powers vested in police officials to carry out their duties.
An explanation of the correlation between corruption and fraud is additionally discussed in this chapter, followed by a brief discussion of some theories on the occurrence of corruption. This is complemented by a discussion on corruption in developing countries, as well as the initiatives by countries in the Southern African Development Community (SADC) to curb corrupt activities.

 LEGISLATION GOVERNING CORRUPTION IN SOUTH AFRICA

The introduction of legislation brought about that all citizens of a country are accountable to the same set of laws. This is imperative to protect the fundamental rights of everyone. Legislation assists in the governing of a nation in that it prohibits certain conduct by or activities of the citizens. Recognition of the rule of law and the accountability and transparency of government are the founding principles of the Constitution of the Republic of South Africa (South Africa 1996b), hereafter referred to as “the Constitution”, which also provides for the establishment of oversight bodies that play a role in supporting the accountability and transparency of the public and private sectors. Various pieces of legislation have been developed to give greater legal effect to the principles of accountability and transparency contained in the Constitution. Corruption is not a problem unique to South Africa, but it is one of the country’s major challenges.

 The Criminal Procedure Act

The Criminal Procedure Act 51 of 1977 (South Africa 1977), hereinafter referred to as the CPA, was signed into law on 21 April 1977. It was introduced to “make provision for procedures and related matters in criminal proceedings”. The CPA is essential to enable SAPS officials to execute their functions. The CPA represents the conduct of police officials in dealing with criminal cases and procedures in courtrooms. Section 205 of the CPA (South Africa 1977) permits a judge or a magistrate to summons a person who is probably going to provide substantial or significant information regarding an alleged crime. This is usually used to obtain information from financial institutions, government departments, private enterprises, unwilling witnesses, and so on.
The legislation which gives police the power to search a person or premises and/or seize articles is provided for in sections 19 to 36 of the CPA (South Africa 1977), which states that a search warrant issued under subsection (1) shall require a police officer to seize the article in question and shall, to that end, authorise such a police officer to search any person identified in the warrant and to search any person found on or at such premises. These are all essential actions that need to be taken during the investigation of corruption. The following sections of the CPA (South Africa 1977) are important when investigating financial crimes and are available to investigators to present evidence in court:
Section 205 – Application for evidence (e.g. client information at a bank, corporate entity, trust, etc.)
The SAPS may question a suspect without his/her consent, but the person still has the right to silence and may even refuse to answer. The only other option for the police in such circumstances is to use section 205 of the Act, where a magistrate, on request of the Director of Public Prosecutions (DPP), may summon such person to appear before him/her for questioning by a prosecutor. This usually is issued to a person who is likely to give material or relevant information to an alleged crime.
Section 212 – Proof of certain facts by affidavits or certificates;
(1) Did not happen (e.g. Department of Education).
(2) Information was not supplied (SARS).
(3) The matter has been registered (Deeds Office).
(4) Skills (Local Criminal Record Centre).
Section 213 – Proof of a written statement by consent: An affidavit made by a teller in respect of the receipt of a deposit or the identity of a person who presented a cheque for payment. In respect of any fact(s), this statement may be handed up in court as evidence, instead of oral evidence being required in respect of the fact(s).
Section 236 – Proof of entries in bankers’ books: An affidavit made by an official of a bank, who has examined the accounting records and original document(s) kept by that bank. Entries in the accounting records of that bank or documents kept by that bank, and to which copies of the relevant entries or documents are appended, may be handed up in court as evidence, instead of requiring oral evidence in this regard.
Section 252A – The authority to make use of traps and undercover operations, and the admissibility of evidence so obtained.
Section 204 – Incrimination evidence by a witness for the state. During the investigation process, an affidavit could be obtained from a witness who incriminates himself/herself in the commissioning of a crime. The appointed prosecutor will be involved during this process.

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 The Public Service Act

The Public Service Act 103 of 1994 (South Africa 1994b), hereinafter referred to as the PSA, was signed into law on 3 June 1994. The PSA was introduced to enable the government of the public service of South Africa and to regulate conditions of employment. This is predominantly used to obtain more information on public officials who are the object of an investigation. Documents which may be relevant to such an investigation include the official’s application for deployment, dependents, financial declarations, his delegated authority, job description, and official travel arrangements.

The South African Police Service Act

The new South African Police Service Act 68 of 1995 (South Africa 1995), hereinafter referred to as the SAPS Act, was signed into law on 28 September 1995. It provided the legal basis for the establishment of the SAPS. The SAPS was thereby established and it outlined the functions of the Service. The SAPS Act (South Africa 1995) further stipulates: “To provide for the establishment, organisation, regulation and control of the SAPS and to provide for matters in connection therewith.” The SAPS Act (South Africa 1995) provides clear rules for all parts of the successful operation of the police service, from the government through to the conduct of conventional police officials.
The South African Police Service Amendment Act 57 of 2008 (South Africa 2008), hereafter referred to as the SAPS Amendment Act, was passed and amended Act 68 of 1995. The SAPS Amendment Act enhances the capacity of the SAPS to prevent, combat, and investigate national priority crimes by establishing the DPCI. The SAPS Amendment Act also made provisions for the DPCI to investigate national priority crimes through cooperation with other government departments. The DPCI is a statutory body responsible for preventing, combatting, and investigating national priority crimes, for instance serious organised crime, serious commercial crime, and serious corruption cases as stated in section 17 B(a) of the SAPS Amendment Act (South Africa 2008). It appears from this section that the DPCI will investigate only serious corruption, leaving a gap for which unit will choose to investigate police corruption.

CHAPTER 1: GENERAL ORIENTATION
1.1 INTRODUCTION
1.2 BACKGROUND TO THE STUDY
1.3 THE ACTT MANDATE
1.4 PROBLEM STATEMENT
1.5 AIM OF THE RESEARCH
1.6 PURPOSE OF THE RESEARCH
1.7 RESEARCH QUESTION
1.8 DELIMITATION OF THE STUDY
1.9 KEY THEORETICAL CONCEPTS
1.10 CHALLENGES ENCOUNTERED IN THE STUDY
1.11 VALUE OF THE RESEARCH
1.12 RESEARCH APPROACH AND DESIGN
1.13 POPULATION AND SAMPLING
1.14 DATA COLLECTION
1.15 DATA ANALYSIS
1.16 TRUSTWORTHINESS OF THE STUDY
1.17 ETHICAL CONSIDERATIONS
1.18 CHAPTER SUMMARY
CHAPTER 2: A CONTEXTUAL OVERVIEW OF CORRUPTION
2.1 INTRODUCTION
2.2 LEGISLATION GOVERNING CORRUPTION IN SOUTH AFRICA
2.3 CRIMES IN RELATION TO CORRUPTION
2.4 CORRELATION BETWEEN FRAUD AND CORRUPTION
2.5 THEORIES OF CORRUPTION WITHIN THE PUBLIC SERVICE
2.6 NATIONAL DEVELOPMENT PLAN 2030
2.7 CORRUPTION IN DEVELOPING COUNTRIES
2.8 SOUTHERN AFRICAN DEVELOPMENT COMMUNITY COUNTRIES AND ANTI-CORRUPTION STRATEGIES
2.9 INTERNATIONAL LEGISLATION, CONVENTIONS AND TREATIES
2.10 CHAPTER SUMMARY
CHAPTER 3: THE INVESTIGATION OF CORRUPTION IN THE PUBLIC SERVICE SECTOR
3.1 INTRODUCTION
3.2 THE IMPORTANCE OF INVESTIGATING PUBLIC SERVICE CORRUPTION
3.3 UNDERSTANDING THE PROCESS OF CORRUPTION
3.4 EVIDENCE IN THE INVESTIGATION OF CORRUPTION
3.5 BASIC PRINCIPLES OF EVIDENCE FOR CORRUPTION INVESTIGATORS
3.6 TYPES OF EVIDENCE IN CORRUPTION CASES
3.7 METHODS OF INVESTIGATING CORRUPTION IN THE PUBLIC SECTOR
3.8 COVERT INVESTIGATIONS AS A METHOD TO INVESTIGATE CORRUPTION
3.9 INVESTIGATIVE SUPPORT FOR INVESTIGATORS COMBATTING CORRUPT ACTIVITIES
3.10 CORRUPTION INVESTIGATION STANDARDS
3.11 RECORDKEEPING OF CORRUPT ACTIVITIES
3.12 THE ELEMENTS OF PROOF OF CORRUPTION
3.13 HOW TO PRESENT EVIDENCE OF CORRUPTION
3.14 INTERNATIONAL EXAMPLES OF CORRUPTION INVESTIGATIONS
3.15 CHAPTER SUMMARY
CHAPTER 4: AN OVERVIEW OF MULTI-DISCIPLINARY APPROACHES WITH PARTICULAR REFERENCE TO CORRUPTION IN TH
4.1 INTRODUCTION
4.2 THE EFFICACY OF MULTI-DISCIPLINARY APPROACHES
4.3 IMPEDIMENTS TO MULTI-DISCIPLINARY INVESTIGATIVE APPROACHES
4.4 INTERNATIONAL MULTI-DISCIPLINARY MODELS
4.5 ANTI-CORRUPTION AGENCY
4.6 SOUTH AFRICAN ANTI-CORRUPTION AGENCIES
4.7 MULTI-DISCIPLINARY APPROACHES TO INVESTIGATE CORRUPTION IN SOUTH AFRICA
4.8. MULTI-DISCIPLINARY APPROACHES TO INVESTIGATE CORRUPTION IN THE INTERNATIONAL ARENA
4.9 INDEPENDENCY OF A MULTI-AGENCY APPROACH
4.10 THE IMPORTANCE OF ANTI-CORRUPTION AGENCIES
4.11 RATIONALE FOR INTERNATIONAL ANTI-CORRUPTION AGENCIES
4.12 OVERVIEW OF INTERNATIONAL ANTI-CORRUPTION AGENCIES
4.13 LESSONS LEARNED
4.14 CHAPTER SUMMARY
CHAPTER 5: PRESENTATION, DISCUSSION, AND INTERPRETATION OF FINDINGS
5.1 INTRODUCTION
5.2 OUTCOMES OF INDIVIDUAL INTERVIEWS AND INTERPRETATION OF FINDINGS
5.3 THEME 1: PARTICIPANTS’ PERCEPTIONS OF THE EFFECTIVE FUNCTIONING OF THE ACTT
5.4 THEME 2: THE MULTI-DISCIPLINARY APPROACH AND CHALLENGES EXPERIENCED DURING INVESTIGATIONS
5.5 THEME 3: CHALLENGES FOR INDEPENDENCE AND EFFECTIVE FUNCTIONING OF THE ACTT
5.6 THEME 4: SUGGESTIONS FOR IMPROVEMENT OF EFFECTIVENESS BASED ON LESSONS LEARNED
5.7 CHAPTER SUMMARY
CHAPTER 6: SUMMARY, RECOMMENDATIONS, AND CONCLUSIONS 
6.1 INTRODUCTION
6.2 RESEARCH OVERVIEW
6.3 OVERVIEW OF RESEARCH CHAPTERS
6.4 RECOMMENDATIONS DERIVED FROM THE FINDINGS
6.5 RECOMMENDED MULTI-DISCIPLINARY INVESTIGATION APPROACH
6.6 SUGGESTIONS FOR FUTURE RESEARCH
LIST OF REFERENCES
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