The Civil Law Consequences of Corruption Under South African Law

South Africa has a fairly robust legislative framework to tackle corruption and is also party to several international conventions against corruption. The common law of contract regards the bribe agreement as void and the main agreement procured by corruption as voidable due to improperly obtained consensus. Whilst the bribe-giver would in principle not be entitled to claim restitution of the bribe, the rules on restitution are flexible and aimed at equitable outcomes. There are still some questions on the common law of contract and delict relating to bribery which would benefit from guidance by the courts, including in relation to restitution in respect of the main agreement. Public procurement contracts procured by corruption are likely to be challenged under administrative law. Legislation requires that contracting authorities cancel such contracts. Unsuccessful tenderers have locus standi to challenge procurement tender awards, inter alia on the basis of corruption. They as well as parties involved in contracts may claim damages on several different bases if fraud or corruption can be proved. There is a perception that corruption is endemic in public procurement tender processes and that enforcement of anti-corruption legislation should be improved. It is to be hoped that the current review of the public procurement legislation would lead to less complicated and clearer legislation, as the current regulatory framework is overly complicated and difficult to police. Corruption must be addressed on various fronts, including through concerted information campaigns emphasising the deleterious effects of corruption.