Consider the following example: A convoy of five trucks of Company A leaves South Africa with heavy construction machinery, to be delivered in northern Mozambique. The truck drivers are provided by Company B.
At a remote border post between Zimbabwe and Mozambique, a Mozambican customs official demands $1,000 from the leader of the convoy because a “new tax” of $200 per truck is being charged for road maintenance.
What should the convoy leader do? It is as plain as a pikestaff that companies that transport goods across borders have a responsibility to ensure that their truck drivers are properly equipped to handle such situations.
Company A cannot hide behind Company B, which provides the truck drivers. That would boil down to outsourcing our immorality to others.
There are several standards from which companies can seek guidance on their responsibilities with regard to cross-border corruption.
According to, for example, the United Kingdom’s (UK’s) Bribery Act of 2010, it is a crime to bribe a public official of another country. That legislation creates the new crime of omission to prevent bribery committed on behalf of a company, regardless of where bribery is committed.
All companies with an association – defined broadly – with the UK fall within the ambit of this Act. The association might be the origin of the machinery or any aspect of the company’s activities.
There are also voluntary standards to which companies may commit themselves, such as the United Nations’ Global Compact, the King III codes on corporate governance, industry codes and their own ethics codes. Good resources, such as the British Standard: BS 10500:2011 and Transparency International’s Resist, help companies to promote corruption-free cross-border trade.
If a company has sufficient procedures to check bribery, it will serve as a complete defence in the UK against the crime of omission to prevent bribery.
How can Company A manage the risks associated with bribery, safeguard itself against prosecution and simply do what is right? Safeguarding against bribery has four aspects.
At head office
Firstly, early steps are essential for the prevention of bribery. Company A’s head office should compile a bribery-risk profile by questioning truck drivers about the nature and extent of the risks they face.
This has to be used for the formulation of a policy and practical plan to assist truck drivers at border posts.
The plan might include the following: A no-bribery sticker on trucks; the truck driver keeping copies of all relevant documents; his having the contact details of advice telephone numbers in both his homeland and the other country; and his handing the customs official a document in the local language, setting out that his company has a no-bribery policy, that bribery is against the country’s laws, that he wants the official’s name and a receipt and that payment will be reported to the company and the other country’s government.
Company A should establish whether Company B and its truck drivers meet all legal requirements; provide anti-corruption training to its own employees and also truck drivers of Company B; institute a system to report incidents and keep a register; question truck drivers about incidents and build up a database; and initiate joint action with other companies.
In the other country
Company A should obtain legal advice in Mozambique about local legislation, rules and regulations; bring its anti-corruption policy to the attention of the relevant ministries; obtain the services of a local legal firm (which the truck drivers can contact for advice); consult with the government, anti-corruption bodies and organisations in civil society; and, where possible, participate in joint initiatives (such as the Maputo Corridor Logistics Initiative).
At the bribery point
Steps that the truck driver can take at the bribery point include : Refuse to pay bribes; explain that it is against the country’s laws and company policy (hand over proof); make a note of the official’s name and request identification; and, if the official insists on a bribe, contact the company’s advice line in South Africa or a legal representative in Mozambique. The truck driver should pay the bribe if his life or security is in danger.
If payment appears to be unavoidable, the driver should negotiate the lowest amount possible and request a signed receipt, setting out the reason for the payment. While everything is still fresh in his mind, he should draw up a report.
Afterwards
On his return home, the truck driver should report the incident.
Company A should collect all relevant information and report the incident to the relevant Mozambican ministries, as well as the local embassy. Moreover, the anti-corruption plan should be amended in the light on new information.
The alternative – to close one’s eyes to everything happening at remote border posts – would be to outsource our immorality to others, run the risk of prosecution, place the company’s good name at risk and contribute to the evil of corruption, which is impoverishing Africa.
This article was written by Prof Landman in his personal capacity and was first published in Sake 24.
