What is corruption?

With the state capture inquiry currently underway and the trial of former President Zuma looming the term ‘corruption’ is being thrown around left, right and centre. In light of this, it is worthwhile exploring what ‘corruption’ actually means. Although there is universal acceptance of the fact that corrupt acts should be criminalized, and indeed, to some extent or another, these acts are crimes in almost every country, there is no agreed global definition of the crime of corruption. However, there are certain common elements across international conventions and prominent pieces of national legislation the world over. These are explored below.

Quid pro quo

Corruption is in essence a quid pro quo — someone gives something to someone else so that they, or someone they can influence, will do, or not do, something. Whether or not that ‘something’ is ever done or is successful in achieving the desired outcome is immaterial. What is illegal is the fact that someone is trying to cut the line.

Giving and Receiving

Both the giving and the receiving/soliciting side of the corrupt transaction are illegal in their own right. It is immaterial who initiates the corrupt relationship and it is not necessary that the other party agrees to go with it. In other words, if a metro-police officer asks for R100 in exchange for not issuing a ticket they have committed an act of corruption — even if the driver refuses to pay the money. Likewise, an act of corruption occurs at the moment when a driver offers a 100 rand bill to a metro-police officer in an attempt to avoid a fine. It is not necessary that the money be accepted; the solicitation (or receipt in some instances) and the offer are separate crimes.

Not necessarily money

It is not necessary that the quid pro quo offered be money. Yes, money is often involved and when it is money changing hands it is typically called bribery. But bribery is not the only corrupt act; corruption goes much wider than just money. It could be the giving of clothing (Fubu clothes for his sons were among the gifts Jackie Selebi received from Glenn Agliotti), paying off another’s debt or even the payment of university fees for somebody else (these being some of the gratification Schabir Shaik was found guilty of having provided to Former President Zuma).

In fact, it is not even necessary that the quid pro quo have a monetary value. The wording used in the United Nations Convention Against Corruption, is ‘undue advantage’. The SADAC Protocol against Corruption refers to ‘any article of monetary values, or other benefit, such as a gift, favour, promise or advantage’. And our own South African anti-corruption legislation, the Prevention and Combating of Corrupt Activities Act, 2004 (PRECCA for short) lists, amongst other forms of gratification, ‘any other service or favour or advantage.’ So, for example, a lecturer promising an improved grade in exchange for sexual favours could, arguably, be committing a corrupt act.

What matters is not what is being given or received but whether the intention behind the exchange (or promised exchange) of the thing is to obtain an undue benefit from the corruptee or somebody associated with them.

Intention

By the giving, promising or soliciting of gratification the corruptor must intentionally seek to ensure that the one party will exert their influence over a situation, or someone who can influence the situation, to achieve a desired outcome which will be unfairly beneficial to them. It is not necessary that the outcome be achieved or even that the influence actually be exerted, so, it is possible for someone to commit an act of corruption even when they do not have the authority to do what they promise. What is necessary is that at the time the parties enter into a corrupt transaction they do so with the intention that the one party will help the other gain something which, but for the relationship, they would not be able to achieve or not have been guaranteed achieving.

Directly or indirectly

The quid pro quo does not need to be given to the influencer directly. It can be given to any person or entity so long as it is given to that person or entity with the intention that it induce one party to obtain an unfair benefit for the other party. This means that attempting to shroud the act of corruption in a veil of legitimacy by having the gifts bestowed upon a family member or entity controlled by, or which exists to benefit, the influencer will not negate the illegality of the act. It does not even matter that the recipient person or entity might have been completely and innocently oblivious — if the gift was given with the necessary intention it is corruption on the part of the influencer and benefit seeker (the clueless intermediary will not be liable for corruption although they might be in breach of other fiduciary obligations).

Who can be corrupt?

Often people labour under the misconception that only public officials can be corrupt and that corruption is limited to the public sector. Although it is true that globally public sector corruption gets more attention, this does not mean that only people on the governments payroll can be guilty of corruption. As you will recall both sides of the corrupt transaction amount to illegal activities so, by necessary implication, any ordinary natural person as well as public officials can be guilty. But what about the situation where there is no government official involved? A situation, for example, where the employee of company A bribes the employees of company B to ensure that company A is awarded a lucrative supply contract? This too is corruption, plan and simple. International treaties urge countries to make corruption between private parties illegal and in South Africa it is. The general offence of corruption under PRECCA is broad enough to cover situations such as these and in the specific offence in respect of corrupt activities relating to contracts ‘private organisation’ and ‘corporate body’ are specifically referred to. So, in addition to the company possibly facing a significant fine for anti-competitive behaviour, directors, employees and agents engaging in this kind of behaviour could be facing a minimum of 15 years in prison…

For information on policies which can mitigate your company’s exposure to corruption contact SDG Legal at info@sdglegal.africa.