22 August 2017

Africa: A Victory for Clean Administration

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Like their counterparts in almost every other country, the South African authorities are concerned about control at the borders. And yet many travelers speak of the ease - sometimes even the necessity - of bribing their way through.

During 2010, reports of corrupt activities at SA's Lebombo border post, strategically located close to the borders of both Mozambique and Swaziland, reached such a pitch that even the discredited Hawks unit was moved to take action. (The Hawks are a specialised South African police unit that has come under fire for inaction, inefficiency and for bowing to political pressure.)

But who would have thought that details of the Hawks' anti-corruption operation would emerge via a dispute in the SA Labour Court?

The matter was brought by the Department of Home Affairs, to challenge the outcome of an arbitration award in which a commissioner had ruled in favour of an immigration officer previously based at the Lebombo border post. The commission found that the officer, T Nxumalo, had been unfairly sacked by the department following a disciplinary inquiry into some serious allegations against her.

At the end of that departmental inquiry she was found to have committed 'an act of misconduct' in that she accepted a R50 bribe from an uncover agent. It was also found that on the same occasion she deliberately failed to 'capture' the details of the undercover agent's passport on the department's computer system.

Nxumalo challenged her dismissal at the arbitration hearing, and several witnesses for the department explained what had gone down.

First, a staffer told the commissioner the process involved when someone goes through the border post. The traveller would approach an immigration officer and present his or her passport. Then the officer must check that the passport is valid and that it belongs to the person presenting it. If everything is in order, the official captures the border crossing on the system and then endorses the passport with a special stamp.

At the bottom of each stamp is a control number, unique to each immigration official on duty. It would be serious misconduct for any official to use the stamp of any other official. And, for security reasons, it was regarded as most important for officials to follow all procedures precisely.

Another departmental witness was a member of the police in charge of an anti-corruption operation at the Lebombo border post. He gave one of the team R350 and the passport of a Mozambican national which had been removed from circulation by the department. He instructed this undercover agent to go to the border post and see if he could bribe his way through. The agent said he put R200 in his passport at the pedestrian gate, and after a police officer took the passport and the money he was allowed through. (The judgment gives no clue as to whether anyone in the police has been disciplined for taking this bribe.) At the help desk in the immigration area the undercover agent put R50 into the passport that he gave to Nxumalo, who took it and then stamped the passport.

Nxumalo however denied that she had encountered the agent, or taken money from him or stamped his passport.

While the workplace disciplinary inquiry found she had acted as alleged, the commissioner at arbitration had other views and found Nxumalo was unfairly sacked. This was because the allegations against her had not been properly proved.

In its argument at the Labour Court, the department said the commissioner had not fully appreciated the seriousness of the offence involved. In ordering that Nxumalo be reinstated the commissioner exceeded her powers given that Nxumalo was involved in serious acts of misconduct that 'compromised the integrity of the country's processes and the safety of its citizens'. The department also asked why the commissioner preferred the bare denials of Nxumalo to the evidence of the other witnesses.

Nxumalo, on the other hand, said although there was video footage of the undercover agent at her counter, this did not mean she had served him or that she had taken the money from him. She speculated that perhaps he had simply stopped at her counter because she 'was pretty'.

Judge Edwin Tshidiso Tlhotlhalemaje then discussed what he viewed as a 'disconcerting factor' in the commissioner's handling of the case. There was a video recording of the evidence on which the department relied, and during argument of the case lawyers for the department suggested that the commissioner should watch it herself, especially because the two sides were in dispute over whether it showed Nxumalo stamping the passport or not.

'Inexplicably the commissioner's response was that even if she agreed, she wanted to "curtail some time and not watch it",' said the judge.

By failing to view the video personally on the basis of saving time, she 'failed to follow a proper process in the conduct of proceedings'.

Where reliance is placed on video material a commissioner is required to see it, and in this case, since the recording device was attached to the undercover agent, the agent concerned was best placed to take the commissioner through the footage. The commissioner was obliged to get first-hand evidence from the video, and only if there were no disputes about what was seen in the footage could her decision not to see it herself have been excused. 'The irregularity ... was gross and had the effect of depriving the parties of a fair trial (on) the issue.'

The commissioner took a simplistic approach to the issues, he added. Her decision was 'inexplicable', especially as she needed to have been satisfied merely on a balance of probabilities. She didn't explain why she preferred Nxumalo's version over that of all the other witnesses. It was common cause that the undercover agent approached her with a passport that did not belong to him and that had money inside. Though she initially denied ever having seen him, she later conceded in cross-examination - and after the undercover agent's video was screened - that he had gone to her desk.

The only question remaining was whether it was Nxumalo who had stamped the passport. On the probabilities it was indeed Nxumalo who processed the passport, deliberately smudged the stamp to hide the identity of the agent who had dealt with the matter, and failed to add the details in the system.

He said that the charges against Nxumalo were serious in the extreme.

Because they deserved the sanction of dismissal, he overturned the arbitrator's decision.

The national disgrace that is SA's bribery and corruption culture continues, unchecked and with impunity, from the very highest levels of government down. A case like the Nxumalo matter is a real, though miniscule, victory for clean administration, one for which we should I suppose be grateful, though seen against the many billions of rands lost in shady deals it hardly counts for anything that someone lost her job over a mere R50. But just imagine if the law-enforcement authorities were to act with the same determination to catch the known top government figures looting the country at will - now that would be a real cause for celebration.

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