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By Deborah Mutemwa-Tumbo and Caroline James
First published on Daily Maverick

South Africa’s labour laws have been weaponised against people of integrity to facilitate corruption and state capture.

The Commission of Inquiry into Allegations of State Capture (Zondo Commission) remains the story dominating news headlines in South Africa, and as one high-profile figure after another reveals explosive details of their experience of state capture, South Africans learn just how deep into the public service the tendrils of corruption have reached.

However, corruption on that scale could not have resulted solely from the deeds of former president Jacob Zuma and the key figures of state capture – so while their actions have certainly devastated the public service, we must guard against seeing the pervasiveness of corruption in our public administration as a result only of a Gupta-led conspiracy. The evidence that has been presented at the Zondo Commission thus far should, therefore, be seen as shedding light on the players and their machinations, but by no means as a chronicle of the complete story.

For example, one of the central threads running through the testimony at the Zondo Commission has been how senior appointments in the South African Police Service and the National Prosecuting Authority were used (and, more accurately, abused) to ensure impunity for the chief plunderers.

In addition, we have heard how people with the requisite moral courage were removed from their positions after standing against unethical behaviour, state capture and corruption. This practice of employing pliable officials in key positions and removing inconvenient officials standing in corruption’s way is restricted neither to high-level appointments nor to the criminal justice system as described at the commission: it is a pattern that can be seen throughout our public administration.

The danger of focusing only on those high-ranking (and Gupta-linked) appointments as a facilitator of state capture is that we risk ignoring the reality that corruption, nepotism and financial mismanagement at all levels has been facilitated by the simple appointment and retention of the wrong people in the right places.

One particularly concerning area in which this is occurring is in the former Department of Rural Development and Land Reform, now the Department of Agriculture, Land Reform and Rural Development. Land reform remains a crucial issue for South Africa as it has the potential to play a transformative role in righting the injustices of the past and ensuring more equitable access to and ownership of land in the country. The report released in July by the Presidency’s Advisory Panel on Land Reform, however, describes the “corruption and ineptitude [of officials]” and details how the land reform process has been hijacked through a system of “elite capture” in which “those with personal or political connections acquire land ahead of farmers from communal areas or farm dwellers who have experience”.

When this is read alongside a number of whistle-blowers’ reports received by Corruption Watch, the depth of the corruption within that department is laid bare. This example demonstrates the ease with which ordinary officials have been able to manipulate processes for personal gain and, although many irregular recipients of land were able to rely on their own political influence, this influence is not necessarily linked to Zuma or the Guptas.

Corruption Watch’s experience is that people of integrity, who can put a stop to this kind of behaviour and corruption, are either forced to turn a blind eye or are pushed out when they dare to do the right thing – often through an abuse of disciplinary processes. Under the previous minister of Rural Development and Land Reform, legitimate disciplinary processes were suspended and officials who had previously been found guilty and dismissed for mismanagement or corruption were reinstated in the department. At the same time, disciplinary processes were initiated against officials who had dared to push back against corrupt practices and had sought to expose the irregular granting of land to politically-connected individuals. The effect of this pattern has been to ensure that key positions in the department are staffed by officials who are willing to grease the wheels of irregular practice, while removing those whose integrity threatens to get in the way of the widespread intra-departmental corruption. Due to the sheer number of reports we have received, Corruption Watch has asked the new minister of Agriculture, Land Reform and Rural Development to initiate an audit of disciplinary processes that have taken place in the department, as a first step to fight back against rampant corruption.

Our work has shown that this arrangement is not unique to the land reform process. Our 2018 report analysing corruption trends listed “irregularities in employment” as one of the most common forms of corruption in the reports we receive. In many reported instances of corruption in the education sector, for example, whistle-blowers highlighted the way in which officials seeking to counter corrupt practices, act professionally, and work with integrity are removed or side-lined within the department. It is therefore apparent that, as things stand in our country, doing the right thing remains a high-risk, low-reward endeavour, while those who are all too willing to do the wrong thing or turn a blind eye to impropriety are rewarded and protected.

As the national director of public prosecutions has repeatedly highlighted, the high vacancy rate in public departments and the uncertain legitimacy and integrity of currently employed officials threatens the capacity of post-state capture rebuilding. We need an honest assessment of how disciplinary processes have been used and abused in our public departments, combined with a recognition of the various forms of corruption and “elite capture”. These are necessary first steps in cleaning up our public administration.

Given the importance of land reform in South Africa, the Department of Agriculture, Land Reform and Rural Development is as good a place to start as any to begin reviewing and reversing the devastating effects that the abuse of disciplinary processes have had on our public administration.

Deborah Mutemwa-Tumbo is head of Legal and Investigations at Corruption Watch and Caroline James is a lawyer in the Legal and Investigations department at Corruption Watch.