Considering Corruption Through the AllPay Lens: On the Limits of Judicial Review, Strengthening Accountability, and the Long Arm of the Law
Authors Max du Plessis, Andreas Coutsoudis
Affiliations: Associate Professor, University of KwaZulu-Natal; Advocate, KwaZulu-Natal Bar
Source: South African Law Journal, Volume 133 Issue 4, 2016, p. 755 – 787
Although not necessarily or even generally as a consequence of corruption, tenders have become the site of much legal contestation in the democratic South Africa — representing as they do the uneasy confluence of public and private interests and money. This is true of the AllPay case, which involved a tender dealing with the payment of social grants across South Africa worth some R10 billion to the winning bidder. Using the AllPay case as a lens and as a basis for reflection, we consider the judgments of the SCA and the Constitutional Court and the manner in which both courts dealt with serious allegations of corruption and malfeasance in the bidding process. The Constitutional Court’s AllPay judgments bring into sharp focus a variety of questions that implicate the judiciary, its relationship with the fight against corruption in South Africa, and the extent to which the efforts to hold corrupt individuals accountable might extend beyond South Africa to countries with legislation that creates extra-territorial jurisdiction (and duties) in respect of corruption. We discuss how AllPay also highlights the limits of administrative review to deal effectively with allegations of corruption. The case thus raises questions about what other methods there are to tackle these matters if we are to avoid — in the words of the Constitutional Court in Glenister —corruption destroying virtually everything we hold dear in our hard-won constitutional order.