South African laws make things easy for corrupt individuals

South Africa’s public procurement system, in its current form, makes corruption easier than it should be by facilitating the capture of state contracts. 

This is something the National Treasury sought to change through a new Public Procurement Act, which the Constitutional Court has declared invalid. 

The Act was declared invalid due to Parliament’s failure to ensure adequate public participation in the process. 

Wits Business School governance expert Professor Alex van den Heever told Newzroom Afrika that this is the latest example of Parliament rubber-stamping legislation.

Proper engagement with the legislation would ensure that loopholes can be found and a cost-benefit analysis conducted. 

In the case of the Public Procurement Act, Parliament’s “rubber-stamping” has resulted in legislation that facilitates corruption and state capture. 

“There are many flaws in the procurement process that exist today. It is a capturable structure in South Africa,” Van den Heever said. 

“That is why we see the systematic corruption that we have today. It is because it is so easy to manipulate tender processes and procurement processes.”

These flaws are baked into the system and cannot be undone by the work of good actors within the government. 

They open up loopholes where corrupt individuals can appear legitimate and deserving of contracts with the state or tenders. 

Van den Heever explained that South Africa’s procurement system is also made vulnerable by the significant sway politicians can have on key decisions. 

This enables corrupt politicians to show favour to particular individuals and sway decisions in their favour, often for personal gain. 

“It is still possible for ministers and MECs to interfere in the procurement process. That political contamination of the procurement process allows the capture of the process,” Van den Heever said. 

The combination of a weak system with the ability of politicians to influence decisions creates a situation where it can be captured. 

This results in well-connected individuals repeatedly securing tenders and contracts despite poor work or red flags. 

Tickbox compliance

Van den Heever explained that the invalidation of the new act points to a deeper problem with government processes. 

The Constitutional Court’s decision showed that Parliament acts as a rubber-stamping body rather than engaging with the legislation before it. 

“If Parliament is actually permitted to just rubber-stamp legislation coming through from the executive, make hasty changes without allowing people to engage effectively, then this is the consequence,” he said. 

This is a failure of its duty and the first step toward making the system susceptible to exploitation by bad actors and insiders. 

“Parliament is supposed to substantively comply with the requirement for public participation. It cannot just move things on,” Van den Heever said. 

Instead of doing this, Parliament has reduced public participation to an administrative formality and a box to tick to show it is doing its job. 

“You have to properly consider all participants, all people, who may be affected by a piece of legislation and cannot merely run a tickbox process when something is being considered,” Van den Heever said. 

The tickbox approach to compliance filters through the entire process, ultimately resulting in legislation that facilitates corruption. 

Under the Public Procurement Act, for example, officials can tick administrative requirements to project an illusion of legality. 

All the while, these officials are actively preventing transparency and obscuring ongoing corruption in South Africa. 

“A lot of what has been introduced to tackle corruption has been compliance-related legislation,” Van den Heever explained. 

“This created the impression that people are now participating in and running lawful procurement processes, when, in fact, they are just ticking boxes.”

“There are requirements where people can basically tick a box and create the veneer of lawfulness. In reality, the whole process is still contaminated.”