South Africa’s asset declaration form ‘very limited’, Madlanga Commission hears - IOL

World Bank anti-corruption expert Laura Pop told the Madlanga Commission that South Africa’s asset declaration form is too limited to effectively scrutinise officials’ financial interests.

South Africa’s asset declaration form is so limited that even a capable oversight body would struggle to scrutinise officials’ financial interests effectively, international anti-corruption expert Laura Pop told the Madlanga Commission yesterday.

Pop made the assessment as commissioners questioned whether weaknesses in criminal justice institutions should be addressed through existing oversight mechanisms or, in serious circumstances, an extraordinary integrity evaluation.

“The asset declaration form in South Africa is very limited, so even if you had the best, most specialised institution in the world with that form, they couldn’t have done miracles,” she said.

Pop, a senior financial sector specialist at the World Bank and member of the Stolen Asset Recovery Initiative, was giving evidence in her personal capacity.

Her evidence drew on case studies including Kenya, Albania, Moldova, and Ukraine, with Pop saying Ukraine offered a closer comparison for South Africa in terms of population and economic size — not the extent of problems in the criminal justice system.

Earlier, she described extraordinary vetting as a “medicine of last resort” where corruption, capture or infiltration had reached a point where ordinary accountability mechanisms could no longer respond.

Commission Chair Justice Mbuyiseli Madlanga questioned whether the commission, given its limited lifespan and the portion of the criminal justice system it would examine, could find that a problem was systemic.

He said the commission would have looked through “a very small window” and asked whether findings concerning relatively few people could justify a broader conclusion.

Pop said the answer should not rest purely on numbers. Systemic failure should be assessed using different sources, including criminal justice outcomes and wider research into organised crime.

She added that some countries which later embarked on extraordinary reforms had not had the benefit of an inquiry such as the Madlanga Commission, meaning even its limited view provided information unavailable in some other jurisdictions before they acted.

Co-commissioner Sesi Baloyi asked whether a distinction should be drawn between inadequate accountability mechanisms and mechanisms that existed but were not properly applied.

Pop agreed that both the legal tools and the institutions applying them had to be examined.

She said extraordinary vetting should be exceptional, time-bound and conducted by an independent body with sufficient standing and expertise.

Financial integrity had emerged as the most common basis for adverse findings in the international examples she studied.

An assessment could test whether an official had disclosed everything required and whether the person’s assets could reasonably be reconciled with lawful income.

Other criteria could include conflicts of interest, links to organised crime, interference in investigations, protection of syndicates, misuse of intelligence or official registers, and manifestly unlawful instructions.

Pop cautioned that conduct-related investigations could make the process slower and more resource-intensive.

“If you’re looking for the easiest, fastest way, it’s... just looking at the financials,” she said.

A risk-based approach should identify serious discrepancies first, with the burden shifting to an official to explain them only after grounds for concern had been established.

Consequences should also be proportionate. A minor discrepancy should not automatically be treated like concealed wealth or a serious integrity breach.

“The idea here is to solve some type of momentous crisis,” Pop said.

She said legislation would have to spell out grounds for removal, including failure to pass the integrity evaluation or refusal to comply with disclosure obligations.

A pending criminal case should not automatically halt an integrity assessment, while previous security clearance or financial-disclosure findings should not bind the evaluation body.

Pop said every foreign system she studied allowed officials to resign rather than undergo evaluation. The trade-off was that the state avoided the cost of completing cases, but officials could leave with benefits and no adverse finding.

Rules were therefore needed to prevent officials from leaving one criminal justice institution only to surface, unvetted, in another.

“You don’t want to move the problem around,” she said.

Pop also said unexplained wealth could justify removing an official without necessarily allowing the state to recover the assets because proving which specific crime generated them could be difficult.

She said international experience highlighted the importance of civil forfeiture mechanisms capable of addressing unjustified wealth without proof that the assets came from a specific criminal offence.

Pop said extraordinary vetting should form part of wider institutional reform rather than be treated as an end in itself.

Referring to her capacity-building experience, she added: “You cannot train people who don’t have integrity … you can train them until you’re blue in the face.”

Once integrity problems had been dealt with, institutions could focus more effectively on skills, training and investigating and prosecuting complex cases, she said.

The commission is expected to hear evidence from the Commissioner for Correctional Services on Thursday.