Corruption: a tale of two countries

GAVIN ROME

A couple of years ago, the former Chief Rabbi of Israel, Rabbi Yona Metzger, pleaded guilty to a charge of bribery, tax fraud, and interfering in the trial process. The Jerusalem District Court rejected Metzger’s plea bargain, and sentenced him to four and a half years in prison.

In 2014, former Prime Minister Ehud Olmert was found guilty of corruption, and sentenced to 27 months in prison.

On 28 February 2019, Attorney General Avichai Mandelblit announced his intention to indict the country’s Prime Minister, Benjamin Netanyahu, with corruption. In the published draft indictment, the charges against Netanyahu have been set out in three separately numbered cases.

In case 1000, Netanyahu is charged with receiving gifts from a Hollywood mogul in return for political favours. In case 2000, the charge is that Netanyahu and the publisher of Israel’s Yediot Ahronoth daily newspaper, Arnon Mozes, concluded a corrupt agreement. The charge is that Netanyahu promised to procure legislative changes that would improve the market share of Mozes’ newspaper at the expense of its competitor. In return, Mozes’ newspaper would give Netanyahu more favourable press coverage.

Similarly, the charge in case 4000 is that Netanyahu benefited Shaul Elovitch, the controller of the Bezeq Telecommunications Company. Again, the charge is that he did so in return for a promise of receiving favourable coverage on Bezzeq’s Wallah news site.

In Israel, the offences of bribery and corruption are provided for in the general penal code. Leaving aside issues of enforcement and political interference for the moment, it is interesting to consider how the South African legal system would treat charges of a similar nature to those levelled at Netanyahu.

South Africa does not have a codified list of criminal offences. Historically bribery was dealt with as a common-law crime. The legislature has since appreciated the necessity for specific anti-corruption legislation. The main anti-corruption law in South Africa is the Prevention and Combatting of Corrupt Activities Act, 2004 (PCCA).

The PCCA creates a general offence of “corruption” which is given a broad and expansive definition. Under the PCCA, a person is guilty of an offence if he directly or indirectly accepts or offers to accept a gratification from another person. He would be guilty even if they gave or agreed to give a gratification to any other person for his benefit or that of another. The fact that a corrupt activity or the agreement to embark upon a corrupt activity proves unsuccessful is irrelevant. Thus – and assuming their validity – the charges against Netanyahu would in South Africa fall within the ambit of the offence of corruption.

The disgust with which South African courts have viewed high-profile people engaging in corrupt activities was recently heard in the Supreme Court of Appeal in the case of the State v Scholtz & Others. In that case, the former premier of the Northern Cape, John Block, and others, were charged with corruption.

In upholding Block’s conviction and sentence of 15 years imprisonment, the Supreme Court of Appeal disagreed that getting a fine of R1 million and a suspended sentence would be adequate for his corruption conviction. It stated, “Mr Block was a political leader who achieved high political office. Unfortunately, he used his status to corruptly enrich himself. If there is any prospect of fighting the endemic corruption which exists in this country, it is for our political leaders to set the example, and not misuse public offices to corruptly obtain personal wealth. It is necessary for an unequivocal message to be sent out that corruption on the part of politicians, especially those holding high office, will not be tolerated.”

Sadly, successful prosecution of powerful politicians is not a South African norm. The failures of the South African legal system in the fight against corruption have generally not occurred at a court or legislative level.

Rather, the ineffective nature of the criminal justice system is the result of the targeted political weakening of the institutional autonomy of the National Prosecuting Authority.

It is thus not surprising that since the advent of democracy, no senior South Africa Cabinet minister has been convicted of corruption. It is to be hoped that in the more open environment of President Cyril Ramaphosa’s administration, the criminal justice system will undergo an independent institutional renaissance.

In Israel, the institutional independence of the attorney general’s office will probably be tested over the next few months. Netanyahu has vehemently denied all of the charges against him. In the course of doing so, he has attacked the integrity of both state prosecutors and the attorney general.

It is, however, worth recalling that it was a right-wing politician, Prime Minister Menachem Begin, who during the equally turbulent and fraught times of the early 1980s, helped to entrench the rule of law in Israel.

Unlike in South Africa, the respect historically given to the rule of law and the outcome of past high-profile corruption cases make it likely that Israel’s prosecutors and its courts will remain indifferent to the politically charged atmosphere prevailing in the case against Netanyahu.

• Gavin Rome is a senior counsel at the Johannesburg Bar. He has acted as a Judge of the High Court on several occasions.