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THE SOUTH AFRICAN CRIMINAL LAW’S RESPONSE TO THE CRIMES OF

FRAUD AND CORRUPTION WITHIN LOCAL GOVERNMENT by
STEPHANIE NAIDOO
Submitted in accordance with the requirements of the degree of
MASTERS OF LAW (LLM) in the subject PUBLIC LAW at the
UNIVERSITY OF PRETORIA
SUPERVISOR: PROFESSOR G.P. STEVENS
OCTOBER 2016

© University of Pretoria

ii

DECLARATION OF ORIGINALITY

UNIVERSITY OF PRETORIA

The Department of Public Law places great emphasis upon integrity and ethical conduct in the preparation of all written work submitted for academic evaluation.

While academic staff teach you about referencing techniques and how to avoid plagiarism, you too have a responsibility in this regard. If you are at any stage uncertain as to what is required, you should speak to your lecturer before any written work is submitted.

You are guilty of plagiarism if you copy something from another author’s work (eg

a book, an article or a website) without acknowledging the source and pass it off as your own. In effect you are stealing something that belongs to someone else. This is not only the case when you copy work word-for-word (verbatim), but also when you submit someone else’s work in a slightly altered form (paraphrase) or use a line of argument without acknowledging it. You are not allowed to use work previously produced by another student. You are also not allowed to let anybody copy your work with the intention of passing if off as his/her work.

Students who commit plagiarism will not be given any credit for plagiarised work. The matter may also be referred to the Disciplinary Committee (Students) for a

ruling. Plagiarism is regarded as a serious contravention of the University’s rules

and can lead to expulsion from the University.

© University of Pretoria

iii
The declaration which follows must accompany all written work submitted while you are a student of the Department of Public Law No written work will be accepted unless the declaration has been completed and attached.

Full names of student:

Stephanie Naidoo
Student number: 28243146

Topic of work:

The South African Criminal Law’s response to the crimes of

fraud and corruption within Local Government
Declaration

  • 1.
  • I understand what plagiarism is and am aware of the University’s policy in

this regard.

  • 2.
  • I declare that this thesis (eg essay, report, project, assignment, dissertation,

thesis, etc) is my own original work. Where other people’s work has been used

(either from a printed source, Internet or any other source), this has been properly acknowledged and referenced in accordance with departmental requirements.

3.

4.
I have not used work previously produced by another student or any other person to hand in as my own.

I have not allowed, and will not allow, anyone to copy my work with the intention of passing it off as his or her own work.

  • SIGNATURE
  • S.Naidoo

© University of Pretoria

iv

DEDICATIONS

This research is dedicated in the loving recognition, to my parents Mr Deven Naidoo and Mrs Premie Naidoo, for the unconditional love, support and encouragement. I further dedicated this research to my late grandparents Mr Kistah Naidoo and Mrs Radha Naidoo, you both are greatly revered and never forgotten. My most important praise and appreciation is given to my personal Lord and Saviour Jesus Christ for his unfailing love and blessings.

© University of Pretoria

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SUMMARY

The crime of fraud and corruption is rife within South African municipalities. This negatively impacts on the efficient and effective service delivery through wasteful and uneconomic expenditure incurred by Municipalities through the perpetration of the aforementioned crimes.

The writer envisages researching, investigating, critically analysing and evaluating the South

African criminal law’s response in combatting the scourge of fraud and corruption within local

government. In order to do so the research will examine the efficacy of the Prevention and Combatting of Corrupt Activities Act 12 of 2004, in prosecuting individuals who perpetrate acts of fraud and corruption.

The current Act unlike its predecessor, has enacted special provisions in sections 4 and 26(1)(a) for the prosecution of public officials who commit acts of fraud and corruption. The Act makes provisions for a general offence of corruption and also punishes various specific forms of

corruption. The essential purpose of the Act is the ‘unbundling’ of the offence of corruption. A

duty is imposed by the Act to report corrupt practices and keep record of previously convicted persons and enterprises who unlawfully received tenders and contracts as a result of such acts of corruption. This record will ensure that harsh restrictions are placed on such individuals.

Furthermore, this Act is designed to reinforce South Africa’s obligations under the United Nations

Convention against Corruption adopted by the General Assembly on 31 October 2003. The penal provisions of the Act, serves as a deterrent in that a conviction for corruption invokes a 15 year imprisonment term. All in all, the Act has provisions to effectively prosecute perpetrators of corruption. The same is true for the crime of common law fraud although punishment is at the

court’s discretion.

Detecting fraud and corruption within local government is extremely difficult because of its disguised form. In view hereof forensic investigative methods have to be adopted in order to produce the standard of proof required in our courts of law to successfully prosecute these crimes.

Finally, the research will produce findings which will inform the recommendations that will be made. The writer envisages making implementable recommendations that may lead to the detection, effective investigation, successful prosecution and ultimately the prevention of the crimes of fraud and corruption within local government.

© University of Pretoria

vii

TABLE OF CONTENTS

  • TITLE
  • PAGE NO

DECLARATION DEDICATION ii-iii iv

  • SUMMARY
  • vi

  • TABLE OF CONTENTS
  • vii

CHAPTER 1: INTRODUCTION, BACKGROUND AND CONCEPTUALISATION OF

  • FRAUD AND CORRUPTION IN SOUTH AFRICA
  • 1

1. 2. 3. 4. 5. 6. 7. 8.

  • INTRODUCTION
  • 1

  • 3
  • PURPOSE AND OBJECTIVES OF THE STUDY

RESEARCH QUESTIONS STATEMENT OF THE PROBLEM HYPOTHESIS
456

  • METHODOLOGY
  • 6

DEFINITIONS OF KEY CONCEPTS PLAN OF STUDY
7
11

CHAPTER 2: THE SOUTH AFRICAN RESPONSE TO THE CRIMES OF FRAUD AND

  • CORRUPTION WITHIN LOCAL GOVERNMENT
  • 13

  • 13
  • 1.

2.
INTRODUCTION CONSTITUTIONAL RELEVANCE OF THE CRIMES OF FRAUD AND CORRUPTION WITHIN LOCAL GOVERNMENT CONSTITUTIONAL OBJECTIVES OF THE MUNICIPALITY DUTIES OF PROVINCIAL LEGISLATURES
14 15 15 16
2.1 2.2

  • 2.3
  • RELEVANCE OF CHAPTER 9 STATE INSTITUTIONS

© University of Pretoria

2.4 3.
CONSTITUTIONAL REQUIREMENT FOR PROCUREMENT GOVERNANCE
17 19 20 20 21 21 21 22 22 22 24
3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 4.
PARTICIPATION RULE OF LAW TRANSPARENCY RESPONSIVENESS CONSENSUS ORIENTATED EQUITY AND INCLUSIVE EFFECTIVENESS AND EFFICIENCY ACCOUNTABILITY LEGISLATIVE FRAMEWORK ELEMENTS OF CORRUPTION IN TERMS OF THE PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT PREVENTION OF ORGANISED CRIME ACT
4.1
24

  • 35
  • 4.2

4.3 4.4 4.5 4.6

  • PROTECTED DISCLOSURE ACT
  • 36

37 37 37
PROMOTION OF ACCESS TO INFORMATION ACT PROMOTION OF ADMINISTRATION OF JUSTICE WITNESS PROTECTION ACT
4.7 4.8
THE PUBLIC FINANCE MANAGEMENT ACT AND REGULATIONS FINANCIAL INTELLIGENCE CENTRE ACT
38 39

  • 4.9
  • MUNICIPAL FINANCE MANAGEMENT ACT, THE MUNICIPAL SYSTEMS

ACT AND THE LOCAL GOVERNMENT: MUNICIPAL STRUCTURES ACT 39

  • 5.
  • COMMON LAW FRAUD

INTRODUCTION CONCLUSION
43 43 45
5.1 6.

CHAPTER 3: LEGAL PRECEDENT (CASE LAW) ON THE CRIMES OF

  • FRAUD AND CORRUPTION WITHIN SOUTH AFRICAN MUNICIPALITIES
  • 46

  • 46
  • 1

2
INTRODUCTION CORRUPTION AND FRAUD CASES WITHIN SOUTH AFRICAN

© University of Pretoria

  • MUNICIPALITIES
  • 46

46 51
2.1

2.2 2.3
Viking Pony Africa Pumps (PTY) LTD t/a Tricom Africa v Hidro-Tech Systems (PTY) LTD and Another

Democratic Alliance Western Cape & others v Western Cape Minister of Local government & another

Minister of Local government, Housing and Traditional Affairs (Kwazulu- Natal) v Umlambo trading

53

  • 55
  • 2.4

3

Esorfranki Pipelines (PTY)LTD v Mopani District Municipality

CORRUPTION AND FRAUD PRECEDENTS WITHIN THE PUBLIC SECTOR 57
3.1 3.2 3.3 3.4 4

  • S v KGANTSI
  • 57

60 63 66 68

S V SHAIK & OTHERS SELEBI V S TSHOPO V STATE

CONCLUSION

CHAPTER 4: EARLY WARNING SYSTEMS(EWS) OF FRAUD AND

  • CORRUPTION
  • 70

1. 2. 3.

  • INTRODUCTION
  • 70

  • 71
  • WHAT ARE RED FLAGS?

MANIFESTATIONS OF FRAUD AND CORRUPTION SCHEMES IN PUBLIC

  • PROCUREMENT
  • 72

  • 4.
  • PHASES OF PROCUREMENT CYCLE WHICH ARE PRONE TO FRAUD

  • AND CORRUPTION
  • 73

73 74

4.1

PROJECT IDENTIFACTION AND DESIGN
4.1.1 RED FLAGS OF PROJECT IDENTIFICATION AND DESIGN

  • 4.2
  • ADVERTISING, PREQUALIFICATION, BIDDING DOCUMENTS

  • PREPARTATION AND SUBMISSION OF BIDS
  • 74

74 75 76 76
4.2.1 ADVERTISING 4.2.1.1 RED FLAGS IN ADVERTISING 4.2.2 PREQUALIFICATION STAGE 4.2.2.1 RED FLAGS IN PREQUALIFICATION

© University of Pretoria

4.2.3 PREPARATION OF BIDDING DOCUMENTS STAGE 4.2.3.1 RED FLAGS IN PREPARATION OF BIDDING DOCUMENTS 4.2.4 SUBMISSION OF BIDS STAGE
77 78 79 79 80 82
4.2.4.1 RED FLAGS IN BID SUBMISSIONS

  • 4.3
  • BID EVALUATION STAGE

4.3.1 RED FLAGS IN BID EVALUATIONS

  • 4.4
  • CONTRACT PERFORMANCE, ADMINISTRATION AND SUPERVISION

  • STAGE
  • 82

  • 83
  • 4.4.1 RED FLAGS IN CONTRACT PERFORMANCE

  • 5.
  • COMMON RED FLAG INDICATORS OF FRAUD AND CORRUPTION

  • WITHIN THE LOCAL GOVERNMENT
  • 83

84 84 84 85 86 86 86 87 87 87 88
5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 5.10 6.
COMPLAINTS FROM BIDDERS AND INTERESTED PARTIES MULTIPLE CONTRACTS BELOW PROCUREMENT THRESHOLDS UNUSUAL BID PATTERNS INFLATED AGENT FEES SUSPICIOUS BIDS/BIDDERS NON-SELECTION OF LOWEST BIDDER REPEATED AWARDS TO SAME CONTRACTOR CHANGES IN CONTRACT TERMS AND CONDITIONS MULTIPLE CHANGE ORDERS TO CONTRACTS POOR QUALITY OF WORKS AND/OR SERVICES CONCLUSION

CHAPTER 5: FORENSIC INVESTIGATION OF FRAUD AND CORRUPTION WITHIN

  • THE CRIMINAL JUSTICE SYSTEM OF SOUTH AFRICA
  • 89

  • 89
  • 1.

2.
INTRODUCTION ESSENTIAL CHARACTERISTICS OF CRIMINAL INVESTIGATION

  • AND FORENSIC INVESTIGATION?
  • 89

  • 3.
  • FORENSIC INVESTIGATION INSTITUTIONS THAT INVESTIGATE

CRIMES OF FRAUD AND CORRUPTION WITHIN SOUTH AFRICA THE ROLE OF SOUTH AFRICAN POLICE SERVICE
91

  • 92
  • 3.1

© University of Pretoria

  • 3.1.1 INTRODUCTION
  • 92

  • 93
  • 3.1.2 INVESTIGATION POWERS OF SAPS

3.1.3 FUNCTIONS AND RESPONSIBILITIES OF THE DETECTIVE SERVICE

  • OF SAPS
  • 95

97 97 98

  • 3.2
  • THE ROLE OF THE NATIONAL PROSECUTING AUTHORITY (NPA)

3.2.1 INTRODUCTION 3.2.2 INVESTIGATIVE AND PROSECUTORIAL POWERS OF THE NPA 3.2.3 FUNCTIONS AND RESPONSIBILITIES OF THE INVESTIGATIVE

  • DIRECTORATE OF THE NPA
  • 99

100 100 101 102 103 103 104 105 106 106 107 107 109 109 111 112 112 112 113 113 114 115

  • 3.4
  • THE DIRECTORATE OF SPECIAL OPERATIONS (DSO)

3.4.1 INTRODUCTION 3.4.2 INVESTIGATIVE POWERS OF THE DSO 3.4.3 FUNCTIONS AND RESPONSIBILITIES OF THE DSO

  • 3.5
  • THE ROLE OF THE SPECIAL INVESTIGATIVE UNIT (SIU)

3.5.1 INTRODUCTION 3.5.2 INVESTIGATIVE POWERS OF THE SIU 3.5.3 FUNCTIONS AND RESPONSIBLITIES OF THE SIU

  • 3.6
  • THE ROLE OF THE ASSEST FORFEITURE UNIT (AFU)

3.6.1 INTRODUCTION 3.6.2 INVESTIGATIVE POWERS AND AUTHORITY 3.6.3 FUNCTIONS AND RESPONSIBLITIES OF THE AFU

  • 4.
  • FORENSIC INVESTIGATIVE OF FRAUD AND CORRUPTION

  • INTRODUCTION
  • 4.1

  • 4.2
  • CASE THEORY APPROACH

4.2.1 STEP 1: BEGIN THE CASE 4.2.1.1 RESPONSE TO A COMPLAINT 4.2.1.2 EVALUATE A COMPLAINT 4.2.1.3 DISCOVERY OF RED FLAG

4.2.1.4 “PROACTIVE AUTOMATED FRAUD DETECTION TESTS

4.2.2 STEP 2: TESTING OF ALLEGATIONS 4.2.3 STEP 3: CONDUCT DUE DILIGENCE BACKGROUND CHECKS

© University of Pretoria

4.2.4 STEP 4: COMPLETING THE INTERNAL STAGE OF INVESTIGATION 4.2.5 STEP 5: CHECK FOR PREDICTION AND GET ORGANISED 4.2.6 STEP SIX: BEGIN THE EXTERNAL INVESTIGATION 4.2.6.1 CORRUPTION CASES
116 117 118 118 120 122 123 123 125 127
4.2.6.2 FRAUD CASES 4.2.7 STEP 7: PROOF OF ILLICIT PAYMENTS 4.2.8 STEP 8: OBTAINING THE CO-OPERATION OF A WITNESS 4.2.9 STEP 9: INTERVIEWING THE PRIMARY SUSPECT 4.2.10 STEP 10: PREPARATION OF THE FINAL REPORT

  • 5.
  • CONCLUSION

CHAPTER 6: COMPARATIVE ANALYSES: COMBATING OF FRAUD AND

  • CORRUPTION BETWEEN THE EASTERN CAPE AND WESTERN CAPE
  • 128

  • 128
  • 1.
  • INTRODCUTION

  • 2.
  • FRAUD AND CORRUPTION WITHIN THE EASTERN CAPE PROVINCE 132

2.1 2.2 2.3 2.4

  • HISTORIC INTRODUCTION
  • 132

134 137
THE ANTI-CORRUPTION FORUM THE NETWORK AGAINST CORRUPTION CURRENT ANTI-CORRUPTION AND FRAUD STRATEGIES BY

  • THE EASTERN CAPE PROVINCE
  • 139

  • 3.
  • FRAUD AND CORRUPTION WITHIN THE WESTERN CAPE PROVINCE 142

3.1 3.2 4.

  • HISTORIC BACKGROUND
  • 142

  • 144
  • THE DIRECTORATE: FORENSIC AUDIT

COMPARISION BETWEEN THE EASTERN CAPE AND THE

WESTERN CAPE’S ABILITY TO EFFECTIVELY MANAGE FRAUD

AND CORRUPTION IN THE RESPECTIVE PROVINCES CONCLUSION
148

  • 153
  • 5.

CHAPTER 7: RECOMMENDATIONS AND CONCLUSIONS

155 155 156

  • 1.
  • INTRODUCTION

  • 1.1
  • ORGANIZATION STRATEGY

© University of Pretoria

  • 1.1.1 SOUND AND ETHICAL CULTURE
  • 156

1.1.2 ACCOUNTABILITY, TRANSPARENCY AND COMMITMENT FROM

  • SENIOR MANAGERS
  • 157

158 159 160 160
1.1.3 ASSESSMENT OF FRAUD AND CORRUPTION RISK 1.1.4 EMPLOYEE RECRUITMENT AND TRAINING

  • 1.2
  • OPERATIONAL STRATEGY

1.2.1 PREVENTION 1.2.1.1 ESTABLISHMENT OF ANTI-FRAUD AND CORRUPTION

  • COMMITTEES
  • 160

161 161 161 162 163 163 163 164 165 165 166
1.2.1.2 ESTABLISHMENT OF INTERNAL AUDIT DEPARTMENT 1.2.2 DETECTION 1.2.2.1 AUDIT COMMITTEE 1.2.2.2 EMPLOYEE TRAINING AND AWARENESS PROGRAMMES 1.2.2.3 WHISTLE BLOWING 1.2.3 RESPONSE(S) TO COMMISSION OF FRAUD AND CORRUPTION 1.2.3.1 ROLE OF MUNICIPAL MANAGERS 1.2.3.2 MANAGING THE ALLEGATION 1.2.3.3 DISCIPLINARY HEARINGS 1.2.3.4 PROSECUTION 1.2.3.5 RECOVERY ACTION 1.2.3.6 INTERNAL CONTROL REVIEW AFTER DISCOVERY OF FRAUD

  • OR CORRUPTION
  • 166

166 167
1.2.3.7 KEEPING RECORDS OF WRONGDOERS OF EXTERNAL PARTIES

  • 1.3
  • MAINTENANCE STRATEGY

1.3.1 REVIEWING OF THE EFFECTIVENESS OF THE ANTI-FRAUD

  • AND CORRUPTION POLICY
  • 167

1.3.2 REVIEWING AND UPDATING THE ANTI-FRAUD AND

  • CORRUPTION POLICY
  • 168

  • 168
  • 2.
  • CONCLUSION

ANNEXURE “A” BIBLIOGRAPHY

172
173

© University of Pretoria

THE SOUTH AFRICAN CRIMINAL LAW’S RESPONSE TO THE

CRIMES OF FRAUD AND CORRUPTION WITHIN LOCAL
GOVERNMENT

CHAPTER 1
INTRODUCTION, BACKGROUND AND CONCEPTUALISATION OF
FRAUD AND CORRUPTION IN SOUTH AFRICA

1.

INTRODUCTION

The scourge of fraud and corruption in South Africa has reached serious proportions. It appears from the perception of the general public that individuals, especially those employed by the local government commit acts of fraud and corruption with impunity. In cases where the employees of the local government are indeed prosecuted for these crimes, the wheels of justice turn slowly.

Fraud and corruption undermines the core values of the Constitution of the Republic of South Africa, 19961 which seeks to achieve democratic values in an open society, social justice, fundamental human rights and most importantly open, transparent, honest and good governance. Fraud and corruption committed by government employees and officials erodes the principles of good and honest governance. Furthermore, acts of fraud and corruption are inconsistent with the rule of law and the principles of good governance2 in an open and democratic society. Should the perpetrators not be brought to book or face the full wrath of the law then the general good moral of our society would be seriously threatened. Furthermore, essential service delivery at the local level is being negatively impacted.

1 The Constitution of the Republic of South Africa, 1996. (Hereinafter referred to as the Constitution). 2 See Chapter 1 para 8.11 infra for the definition of the principle of good governance.

1

© University of Pretoria

Over the past decade there has been an escalation in the perpetration of fraud and corruption within local government. Should this trend continue unabated it would pose a serious threat to the South African society which may result in civil disobedience in the form of protest marches.

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    Legalbrief | your legal news hub Tuesday 28 September 2021 Mac Maharaj hits back over corruption claims Presidency spokesperson Mac Maharaj has denied ever being involved in corruption and bribery. A report on the News24 site notes that he told the National Press Club in Pretoria on Tuesday that he had never broken any law. Maharaj was reacting to criticism that he had in effect censored the Mail & Guardian newspaper by preventing it from publishing allegations against him. He countered he had evidence that the M&G; had committed a criminal offence. 'I went and did what the law says. I laid a charge.' Maharaj's attorneys laid a charge against the M&G; and two of its journalists - Sam Sole and Stefaans Brummer - for violating Section 41(6) of the National Prosecuting Act of 1988. He said his refusal to answer questions was a consequence of his belief that a court of law should decide whether there was any wrongdoing. He said he was not prepared to subject himself to 'trial by media'. The Sunday Times has since reported that Maharaj and his wife Zarina received millions of rands in kickbacks related to the arms deal, the report states. Full report on the News24 site Maharaj, however, remained tight-lipped on whether or not his wife received money from convicted fraudster Schabir Shaik, notes a report in The Mercury. Maharaj refused to answer questions related to allegations that French arms company Thales channelled bribes to his wife through Shaik's company as reported by the Sunday Times. He said if he were to answer the question about whether or not he had received bribes from Thales, he would be legitimising the Mail & Guardian's criminality.
  • South Africa ★ CAPITAL: Pretoria POPULATION: 50.7 Million GNI PER CAPITA (PPP): $9,780

    South Africa ★ CAPITAL: Pretoria POPULATION: 50.7 Million GNI PER CAPITA (PPP): $9,780

    south africa ★ CAPITAL: Pretoria POPULATION: 50.7 million GNI PER CAPITA (PPP): $9,780 SCORES 2006 2010 ACCOUNTABILITY AND PUBLIC VOICE: 5.03 4.89 CIVIL LIBERTIES: 5.00 5.07 RULE OF LAW: 4.41 4.28 ANTICORRUPTION AND TRANSPARENCY: 4.00 3.90 (scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance) Mark Y. Rosenberg INTRODUCTION After decades of white minority rule under a system of comprehensive, insti- tutionalized racial separation known as apartheid, South Africa held its fi rst nonracial general elections in 1994. The balloting was judged free and fair by international observers despite signifi cant political violence, and resulted in a landslide victory for the previously banned African National Congress (ANC). ANC leader Nelson Mandela, a longtime political prisoner, was chosen as presi- dent. A constitutional assembly produced a new constitution, which Mandela signed into law in December 1996. In 1999, the ANC claimed almost two- thirds of the national vote in general elections; Thabo Mbeki, Mandela’s suc- cessor as head of the ANC, won the presidency. The ANC won an even greater victory in 2004, capturing nearly 70 percent of the national vote and outright control of seven of the country’s nine provinces (while sharing power in the other two). Factionalism within the ANC—exemplifi ed by a heated leadership battle be tween Mbeki and his former deputy, Jacob Zuma—has dominated South African politics in recent years. In December 2007, Zuma was elected ANC president at the party’s national conference, outpolling Mbeki by a wide margin, and his allies won most other senior posts.
  • The Hefer Commission of Inquiry

    The Hefer Commission of Inquiry

    19 September 2003 – 07 January 2004 FIRST AND FINAL REPORT HEFER COMMISSION OF INQUIRY TO THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Having conducted an inquiry in terms of my terms of reference dated 19 September 2003 as extended on 7 October 2003 and amended on 11 November 2003, I hereby present my report. Signed on this 7th day of January 2004 JJF HEFER COMMISSIONER ISDN 0-620-31681-0 THE HEFER COMMISSION OF INQUIRY REPORT BACKGROUND [1] Mr Bulelani Thandabantu Ngcuka graduated with a B. Proc degree from the University of Fort Hare during 1977. After serving articles of clerkship in Durban he was admitted as an attorney during 1980 and opened his own practice the next year. Throughout this period he was active in the underground activities of the African National Congress (the ANC) mainly in and around Durban. On 30 November 1981, shortly after the arrest of a comrade, Mr Patric Maqubela, he was detained in terms of section 31 of the Terrorism Act, 1997. At the subsequent trial of Mr Maqubela on a charge of high treason Mr Ngcuka refused to testify for the State. He was convicted under section 189 of the Criminal Procedure Act, 1977, sentenced to imprisonment for three years, and served his sentence mainly in the Helderstroom prison near Caledon in the Western Cape where he continued his studies and eventually obtained the LL. B degree. After his release during 1985 he left the country for Switzerland travelling on a South African passport which had been issued to him during 1981.
  • A Review by Afrimap and Open Society Foundation for South Africa

    A Review by Afrimap and Open Society Foundation for South Africa

    South Africa Justice Sector and the Rule of Law A review by AfriMAP and Open Society Foundation for South Africa OPEN SOCIETY FOUNDATION Copyright © 2005 by the Open Society Foundation for South Africa. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form, or by any means, without the prior permission of the publisher. Published by: Open Society Foundation for South Africa ISBN: 1-920051-22-8 For more information, contact: AfriMAP Open Society Foundation 5th Floor, Cambridge House 100 Cambridge Grove London, W6 OLE, United Kingdom www.afrimap.org Open Society Foundation for South Africa Colinton House, The Oval 1 Oakdale Road Newlands, 7700, South Africa www.osf.org.za Design by: Jeanne Criscola/Criscola Design, New York Layout and printing by: Compress, South Africa Cover image: Headband, 20th century Ndebele; South Africa Glass beads, fiber 20 1/4 x 2 1/2 in. Collection of the Orlando Museum of Art, gift of Norma Canelas and William D. Roth Contents List of case studies v List of acronyms vi Acknowledgements viii Preface ix Foreword x Executive summary 1 1 Legal and institutional framework 3 A. International law, the Constitution and national legislation 3 B. Structure of the court system 15 C. Reform of the legal sector 22 2 Government respect for the rule of law 25 A. The legislative process 25 B. Executive compliance with the law 27 C. Investigation of executive action: commissions of enquiry 32 D. Pardons and amnesties 35 3 Management of the justice system 39 A.
  • Order, the Judiciary and the Rule of Law

    Order, the Judiciary and the Rule of Law

    Order, the judiciary and the rule of law The separation of powers in a democracy can only work if the impartiality and competence of the judiciary, police and prosecuting services are ensured. In South Africa, several forces and trends indicate severe shortcomings in this regard. These forces and trends include extensive practices and sometimes institutionalised norms of nepotism and corruption, close links between some politicians and the heads of security agencies and the illegal domain, and the weak protection of citizens and communities against traumatic violent crime. In addition, there is widespread corruption, partisan ANC influence and cadre deployment in the police. A serious emerging trend is the apparent withholding of proper protection of citizens and communities that are not considered to be part of the ruling faction. Nepotism and corruption South Africa has a formal conventional economy, which has become strongly entangled with the ANC political elites. However, there also is an informal economy, part of which is dominated by crime syndicates with links to politicians and security agencies. As in countries like Mexico and Colombia, these two domains co-exist in the same political system. Historically, the legal and illegal domains are also interlinked. In the case of the ruling ANC, partnerships of some cadres with drugs and smuggling crime syndicates during the years of the political underground and exile have continued after 1994. A former Mandrax specialist became a business partner of Billy Masethla, former chief of the National Intelligence Agency and now a Zuma loyalist. 1 The ANC’s Polokwane conference in 2008 which brought Jacob Zuma, a head of ANC intelligence during the underground years, to power, was also attended by Zuma confidante Mo Shaik, later head of the South African Secret Service.