By:Mothophatlheng Phillip Rakgwale, President of the Southern African Institute of Government Auditors 

State capture, and its exposure, has dominated the national discourse in recent years. The effect has been predictable and negative: a loss of confidence both in government and political parties and in the business sector compounded by frustration at the pervasive lack of accountability for wrongdoing.

“the vulnerability of any government department to undue political interference remains and will always remain and the answer to state capture does no lie in replicating the very same features that allowed state capture to succeed in the first place.”

Commission chairperson, Chief Justice Raymond Zondo, uses several examples in the report of instances where state organs abused policies and legal prescripts to favour the preferred private entities of their senior management. State-owned entities such as Eskom, Transnet and South African Airways, he writes, circumvented policies meant to guard against corruption by engaging in practices such as deviation, confinements and in some cases, parcelling – the latter involves breaking up large-value contracts into smaller ones in order to bypass the scrutiny associated with them.

A key turning point that marked the beginning of the decline in governance values is that the public procurement system was decentralised, presumably to suit a variety of agendas. “The marked decentralisation of our procurement system might seem to be far removed from the  present enquiry until one considers how that decentralisation may have hampered effective monitoring and oversight whilst simultaneously involving a substantial increase in the number of trained procurement officials required to work the system.”

“The evidence received by the commission demonstrates that in many cases and in fundamental respects, the boards of the SOE’s have shirked their responsibilities, or worse, used their powers to corrupt the SOEs which they have been appointed to protect.”

This collective misconduct, he points out, was often evidenced by the abuse of centralised procurement processes so that the approval authority for high value tenders becoming concentrated in the hands of a small group of top executives and board members.

 A national charter against corruption, a single anti-corruption agency and the professionalization of public procurement. 

These are some of the recommended changes that state capture commission chairperson Acting Chief Justice (ACJ) Raymond Zondo has proposed.

“South Africa requires an anti-corruption body free from political oversight and able to combat corruption with fresh and concentrated energy. Public trust will not otherwise be re-established in the procurement system. The ultimate responsibility for leading the fight against corruption in public procurement cannot again be left to a government department or be subject to Ministerial control.”

In order for public officials working in supply chain management and other procurement-related fields to be empowered, the legislative framework that guides their functions must be reformed.

Furthermore, Zondo recommends, government should consider establishing a single professional body to which all procurement officials will belong and account.

“Such professional body will fix the qualifications and the necessary training and experience necessary for membership of the profession. Such training and qualification to include high standards of integrity and a commitment to resist mismanagement, waste and corruption.”

 The tribunal of the agency mentioned above, adds Zondo, is to act as the disciplinary committee with the power to strike a member off the roll or use alternative measures to punish the individual, as it so requires. Equally, there should be a focus on the training of procurement officers and guidance on how to apply the laws that govern their function.

The state capture commission wants those involved in the “sham” that was the Free State asbestos eradication project in 2014 to face criminal investigations and potential prosecution. Commission chairperson Chief Justice Raymond Zondo concludes– that the project was concocted with the sole purpose of defrauding the provincial government.

“SAA declined during the tenure of Ms Myeni to an entity racked by corruption and fraud. Despite this, she was retained as its chairperson well beyond the point at which she should have been removed,” noted Zondo in the report.

“Two successive finance ministers have explained to the commission that this was because of the personal preferences of former president [Jacob] Zuma.”

“They both(Kwinana and Myeni) and ceased being directors of SAA more than 24 months ago. Accordingly, the shareholder is not now in a position to bring proceedings to have them declared delinquent directors under section 162 of the Companies Act.” With regard to the last point, Zondo stated in the report that he recommended that the time bar be amended by Parliament to allow for former directors of state institutions to be liable for exposure to delinquency processes even after the two-year window.

“This will mean that in cases such as this one, where the true extent of the board members’ breaches of duty are only uncovered a number of years later, steps can still be taken by the executive to ensure that such directors are declared delinquent and are thereby prevented from serving on the boards of companies in the future.”