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A Critique of South African Anti-Corruption Strategies and Structures: a Comparative Analysis

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A CRITIQUE OF SOUTH AFRICAN ANTI-CORRUPTION STRATEGIES AND STRUCTURES: A COMPARATIVE ANALYSIS by BERNARD KHOTSO LEKUBU Submitted in accordance with the requirements for the degree of DOCTOR OF LITERATURE AND PHILOSOPHY in the subject Criminal Justice at the UNIVERSITY OF SOUTH AFRICA Promoter Prof. Dr Omphemetse S. Sibanda PRETORIA FEBRUARY 2019 DEDICATION This thesis is dedicated to my mentor, brother, father, friend and confidant, Professor Moses Montesh, who sadly passed away on the 3rd of February 2016 before he could witness the final outcome of my work. Prof, I know for a fact that you are exceptionally proud of me wherever you are. You have always insisted that I put my all in everything else and today I am proud to say, your lessons have made me who I am today. May his departed soul rest in eternal perfect peace. I will forever carry you in my spirit and pray for your family more than I pray for myself, especially your little princess (Michelle). i ACKNOWLEDGEMENTS First and foremost, I would like to thank the Almighty God for the gift of wisdom bestowed upon me, the time, energy, strength and most importantly all the blessings. The cost of educating oneself can be quite pernicious and even inscrutable at times when family and friends cannot comprehend your plans and goals in life. I must also submit that this has been the longest thorny road to walk on. People will try anything and everything to block, distract and derail you, but “I pray a living God”. Secondly, I would like to take this opportunity to convey my sincere and profound gratitude to my family, my mother Agnes Gosalamang Lekubu, my brothers William, Levy, Lebogang, Kopano, a special one to my twin sister (Lorato), all her kids, and furthermore, a very very special one to all my wonderful and lovely kids. To all my friends that have always supported me (Mr Vusi Mathete and Mr Mpole Makoko), I salute you. Thank you so much for being patient with me even at times when you needed me the most; I had a plan and I wanted to execute it. Thirdly, it would be remiss of me not to acknowledge a friend, a brother-from- another-mother, one of the four musketeers, Professor Vinesh Basdeo. Prof., thank you so much for all your support, guidance and your valuable assistance in this work. From the beginning of this project, you have always been there. In the midst of everything else, we lost a friend, a brother, a mentor, one of the musketeers and most importantly a disciplinarian: Professor Moses Montesh – May his departed soul rest in eternal perfect peace. My sincere gratitude and appreciation goes out to the 03h00 am squad initiator, Prof. Mamokgethi Phakeng (Mkhaya). Prof., thank you so much for all your words of encouragement, your unwavering support during your stay at Unisa and afterwards. You used to say to most, if not all of us “Ulala kanjani ungana PhD” and trust me; these words gave me sleepless nights. I have made it. Thank you ever so much for everything you have ever done for me. I salute you. ii May I also take this opportunity to acknowledge and thank Prof. Rushiella Songca. Prof., thank you so much for all the wise words of encouragement, the support and time off work to complete this project. You have always said to me “Benni, keep your eye on the ball, this one is for you to take.” I held on to those words; from the bottom of my heart, I wish and want to thank you most sincerely. I would also like to express my sincere gratitude to the College of Law CRIC members. Thank you so much for all the support (in pecuniary form as well) and for allowing me the time and space to finalise my studies. Prof. Puseletso Letete: “O bosso wena” thank you so much. Now for the man of the moment, Prof. Omphemetse S. Sibanda, my mentor, brother, friend and most importantly, my promoter, my “yonke’into”. Prof., no words, actions or expressions can ever be enough to say “Thank You” to you. When I was in limbo with my studies, you came like a God-sent angel and rescued me. Words can never be enough to express how I feel. It has been an intricate, thorny and challenging experience, yet exhilarating on the other hand but we came out victorious amid all the challenges. I will forever be indebted to your wisdom and the sacrifices you have made for me to see me through, like the family quality time I took away from you, simply because I also wanted to be counted amongst the best. “You are a star”. May the Almighty God continue to bless you in abundance and fulfil your dreams and wishes. My sincere gratitude as well goes out to your wife and children, for lending me a piece of you when you could have had quality time with them. Even when Orlando Pirates beat Kaizer Chiefs 3–1 at the peak of this work, it was a bitter pill to swallow but we soldiered on. We had a goal and a plan and we finally achieved it. “If you can’t fly, then run; if you can’t run, then walk; if you can’t walk, then crawl, but whatever you do, you have to keep moving forward.” Martin Luther King Jr. iii ABSTRACT The ill-effects of corruption on the society, polity and economy of a country are far reaching. They have a corrosive effect on the rule of law, on governance and on the welfare of the society. The Constitution of the Republic of South Africa of 1996, which is the supreme law of the country, places as an expectation and obligation on the government accountability of state, and a government free of corruption and the malignancy of economic nepotism. South Africa’s anti- corruption framework is designed as a control-based approach that is multi- faceted and executed through legislation, supporting regulations, audit trails, anti-corruption structures, law enforcement, and public vigilance and reporting structures, amongst others. Be that as it may, South Africa is battling the scourge of corruption and other self-serving behaviours, often amongst the upper echelons of governing power, as demonstrated by the State capture. Some of the acts of corruption stems from the very same institutions that are meant to be the upper guardians of law and order. Numerous corrupt practices occur almost daily, including but not limited to fraud, bribery, extortion, nepotism, conflict of interest, cronyism, favouritism, theft, fronting, embezzlement, influence-peddling, insider trading/abuse of privileged information, bid-rigging and kickbacks and money laundering. The list is not exhaustive. Based on the findings of this study, numerous recommendations and /or suggestions are made. The value of the study lies in the contribution it makes in South Africa’s fight against corruption to become comparable to countries whose corruption perception index is all time favourable, such as Botswana, Seychelles, Hong Kong and Singapore. iv DECLARATION OF ORIGINALITY I, Bernard Khotso Lekubu (student number 3187-9373), hereby declare that this thesis titled A CRITIQUE OF SOUTH AFRICAN ANTI-CORRUPTION STRATEGIES AND STRUCTURES: A COMPARATIVE ANALYSIS has not previously been submitted by me for a degree at any other university; that this is my own work in design and execution and that all material from published sources contained herein have been duly acknowledged. ____________________________ BK LEKUBU FEBRUARY 2019 PRETORIA v LIST OF ACRONYMS ANC African National Congress ACA Anti-Corruption Agency AFU Asset Forfeiture Unit AGSA Auditor-General of South Africa AU African Union AUCPCC African Union Convention on Preventing and Combatting Corruption BEE Black Economic Empowerment CAACC Commonwealth Africa Anti-Corruption Centre CECA Corruption and Economic Crime Act CPIB Corrupt Practices Investigation Bureau CLEAS Comprehensive Law Enforcement Accountability System DPCI Directorate for Priority Crime Investigation DPSA Department of Public Service and Administration DCEC Directorate on Corruption and Economic Crime GPAD Governance and Public Administration Division IACC International Anti-Corruption Court IACCC International Anti-Corruption Cooperation Centre vi ICAC Independent Commission against Corruption ICC International Criminal Court ICD Independent Complaints Directorate ICOB Independent Civilian Body IPID Independent Police Investigation Directorate LEID Local Government Ethics and Integrity Directorate MACC Minimum Anti-Corruption Capacity MFMA Municipal Financial Management Act MP Member of Parliament NA National Assembly NCOP National Council of Provinces NDP National Development Plan NDPP National Directorate of Public Prosecutions NEC National Executive Committee NEID National Ethics and Integrity Directorate NPA National Prosecuting Authority NPC National Planning Commission OECD Organisation of Economic Co-operation and Development OUTA Organisation Undoing Tax Abuse vii PCCA Prevention and Combating of Corrupt Activities Act, No.12 of 2004 PCO Prevention of Corruption Ordinance PEID Provincial Government and Integrity Directorate PFMA Public Financial Management Act POBO Prevention of Bribery Ordinance PSC Public Service Commission PP Public Protector RHKPF Royal Hong Kong Police Force SACU Special Anti-Corruption Unit SADC Southern African Development Community SAHRC South African Human Rights Commission SALGA South African Local Government Association SAPS South African Police Service SARS South African Revenue Services SCA Supreme Court of Appeal SIU Special Investigating Unit SOEs State-Owned Enterprises SASSA South African Social Security Agency UNCAC United Nations Convention Against Corruption UNDP United Nations Development Program viii LIST OF FIGURES FIGURE 1: Trust and ethical governance in anti-corruption
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