Tender irregularities and corruption in South Africa: The need to revisit issues of evidence
Authors Prenisha Sewpersadh, John Cantius Mubangizi
Affiliations: None; Professor, Deputy Vice-Chancellor and Head of the College of Law and Management Studies, University of KwaZulu-Nata
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 292 – 307
While South African courts have frequently adjudicated matters involving tender irregularities, few findings of corruption have resulted from such cases. The courts appear constrained by strict rules pertaining to admission of evidence, which may result in their refusal to admit evidence of alleged corruption in cases involving tender appeals or reviews. This is notwithstanding the existence of judicial discretion bestowed upon courts through statute. Further, the provisions of the Prevention and Combating of Corrupt Activities Act (PCCAA) could be reformed to ease evidentiary burdens relating to the prosecution of corruption offences. Corruption often involves the exchange of undue gratification, and this may result in the accumulation of illicit wealth. The creation of an offence of possession of unexplained wealth is encouraged by international law, and may be credibly justified taking into account the nature of tender corruption. The creation of such an offence within the PCCAA may assist the prosecution from an evidentiary perspective — in that the prosecution would not be expected to prove that the wealth was obtained unlawfully. Cogent reasons exist for the appropriate reform of the PCCAA with respect to evidentiary issues pertaining to tender corruption. The nature of tender corruption, its prevalence in South Africa, and the difficulties associated with gathering evidence of corruption, justify such assistance from the legislature.