Dear Corruption Watch
Some of my friends say that they have got out of trouble with the police or received improved service from a public servant by offering to pay a bribe. Aren't they committing a criminal offence by doing so? Are they putting themselves at risk?
Wrong to Offer
Dear Wrong to Offer,
The conduct you mention appears to be widespread in South Africa. In July last year, Transparency International reported that 60% of the South Africans it interviewed admitted to having paid a bribe in the previous two years. The police service is perceived as our most corrupt institution.
This is despite the fact that there are potentially serious consequences for both the briber and the recipient of a bribe. Paying a bribe — or even offering one — to a public officer is a criminal offence. Both are defined as corruption.
The relevant public officer is also committing a criminal offence if he or she accepts a bribe or attempts to solicit one.
Any public officer who accepts or agrees to accept any benefit in exchange for abusing a position of authority or breaching a public duty commits the offence of corruption.
It is also an offence to attempt to commit this kind of conduct. So, even if the bribe is ultimately not paid or the officer misunderstands the offer, a criminal offence has been committed.
Any person convicted of this offence is liable for a fine or a period of imprisonment that can be as much as a life term. Most of the offences, including the ones you describe, attract mandatory minimum sentences. The prescribed sentences are severe.
For a criminal conviction to occur, someone — usually the other party to the offer or a witness — would have to report the corruption and the prosecuting authority would need to prosecute.
The prosecution would need to prove that the person offering or accepting the bribe did so with the intention of procuring the improper performance of a duty.
The other party to the attempted bribe — and any other witnesses — would give evidence about what was offered, and the trial court would have to decide whether the evidence demonstrated that the crime of corruption has been committed.
If there are conflicting versions of events, the trial court will weigh up the credibility of the witnesses and the inherent probability of their versions.
The standard of proof in a criminal trial is proof beyond a reasonable doubt.
This means that an accused cannot be convicted if there is a reasonable possibility that he or she did not commit the offence.
All in all, the risks of criminal convictions are significant and usually far outweigh any benefit that might be obtained by attempting to bribe the official.
For the public official, there is also a range of significant noncriminal consequences that can result – for example, he or she could be dismissed or disciplined.
However, as with many South African anti-corruption measures, the problem arises because the law is often not enforced.
The South African Police Service has a big workload to deal with, including many other serious and violent crimes. There are also significant problems with its forensic and investigative capacity.
The prosecuting authority is also plagued by institutional problems and a shortage of qualified personnel.
Many high-profile corruption cases are therefore bungled and others are simply not followed up on. There is also corruption in the police service and prosecuting authority. The Independent Police Investigative Directorate, which is meant to guard the guardians, is not without its problems, including severe resource constraints.
So the reality is that, despite the real and serious risks of bribery, it appears that a culture of impunity is growing and South Africans appear increasingly willing to solicit and pay bribes.
• This article was first published in Sunday Times: Business Times