analysisBy Carmel Rickard
Johannesburg — Our neighbour has set an example that we seem reluctant to follow
If Masupha Sole had worked for Pretoria rather than Maseru, would he have ended up in court? Would he now be in jail? And those powerful international companies who paid him so well - would they have been relentlessly investigated and prosecuted if they had bribed a senior South African official?
These are some of the questions that have bothered me during the five years of the Lesotho corruption trials. Events in South Africa during that time have often made it embarrassing to come from across the border to attend these hearings, so stark is the contrast in the seriousness with which corruption is dealt with by the two neighbours.
First to stand trial was Sole himself, chief executive of the enormous Highlands Water Project in Lesotho. His much-embroidered expense account alerted the authorities to the need for investigation. That led to the uncovering of a web of bribery with Sole at its centre, paid by a number of international companies.
The problem of bribery and corruption has caused many countries to sign declarations opposing it and committing themselves to stamping it out. Yet when the authorities in Lesotho began their series of trials against the corporations, they were met with doubt, if not worse, from those who should have acted against First World corrupters a long time ago.
Last month, the chief prosecutor in the trials, Durban advocate Guido Penzhorn SC, addressing a conference on corruption, recalled being faced with "considerable scepticism" from donor countries and funding agencies. Their attitude "underwent a remarkable change" once the trials started to produce convictions.
Now the prosecution and investigation team are being invited to conferences dealing with corruption, and Penzhorn was even asked to address the European Parliament's Committee on Co-operation and Development in Brussels on the prosecution of corruption.
Last week, as the trials neared an end, the Appeal Court in Lesotho handed down an important judgment. The three judges had been asked by the international engineering consultancy Lahmeyer to reconsider the company's bribery convictions. The prosecution also appealed, saying the company should have been found guilty of some of the counts of which it had been acquitted.
The court took the opportunity to speak strongly about corruption and to issue a challenge to the international community, whose members invariably do the bribing.
In an earlier judgment dealing with another company convicted of bribery related to the water project, the Appeal Court said that corruption must be opposed not just because it is a waste of money, or wrong in itself, but because it undermines public administration, which is essential to constitutional democracy. It also threatens investor confidence, development and employment.
Herein lies the problem for South Africa as well.
As we celebrate 10 years of constitutional democracy, we ought to be thinking about how to safeguard this precious, hard-won gift. Anything that undermines it should be scrupulously avoided or rooted out.
In its decision, the Lesotho Appeal Court acquitted Lahmeyer of one count of which it had originally been found guilty, but convicted the company of an additional two offences. Its R10-million sentence, imposed by the original trial court, was increased to R12-million.
The Appeal Court used the opportunity to state a few home truths about where responsibility lies in getting rid of bribery.
The international community was challenged to revisit its practices and procedures and to use sanctions to impose discipline when companies are convicted of bribery.
In particular, the judges criticised the widespread practice of "representative agreements", which were used to disguise bribes as respectable contracts. As a result, the bribery trail was hidden and it required considerable time and effort to uncover the evidence.
"To their credit, the Lesotho authorities did this in full measure. They should be commended for their resolve," the judges said.
That's precisely what is lacking in South Africa - a sense that the authorities feel passionate about good governance, about ensuring that officials do not benefit improperly or even inappropriately from contracts with the private sector; a sense that bribery and corruption are concepts fully understood and regarded with abhorrence.
The comment of the judges commending the Lesotho authorities should leave us ashamed, for where among our own political leaders have we seen the political will and provision of adequate resources to root out corruption, regardless of who might be involved? Instead, senior officials get away with even well- publicised bribes and the rot spreads through the rest of society.
At this time of national self-congratulation there are some hard truths not being faced. In the midst of vote counting and inauguration parties, we could do a lot worse than reflect on what Lesotho can teach us - and the rest of the world - about fighting graft.