AbleToTrain by Willing & Able

Anti-corruption In South Africa

1. Bribery in the home (private to public)

1.1 The Legal Environment

Bribery of public officials is principally governed by the Prevention and Combating of Corrupt Activities Act of 2004 (PCCAA), which makes corruption and bribery criminal offenses. However, there are numerous laws and regulations that address various types of industry-specific corruption. The following are some of them:

The Financial Intelligence Centre Act (FICA) was enacted in 2001 with the goal of combating financial crimes such as money laundering, tax evasion, and terrorism financing.

The Public Finance Management Act of 1999 (PFMA) and the Local Government: Municipal Finance Management Act of 2003 (MFMA) are two statutes that regulate and monitor government spending in order to reduce wasteful and unauthorized expenditures of public funds and to prevent corruption in the procurement process.

The Prevention of Organized Crime Act of 1988 (POCA) was enacted to combat organized crime (such as money laundering and criminal gang operations), and it provides for the preservation and confiscation of property involved in these crimes.

Employees who expose information about corrupt actions in the workplace, in both the private and public sectors, are protected under the Protected Disclosures Act of 2000.

The Criminal Procedure Act of 1977 (CPA), which governs all criminal proceedings, including domestic bribery,

The Companies Act of 2008 (Companies Act), which aims to protect whistleblowers and prevent corporate corruption through the implementation of strong corporate governance.

South Africa is a signatory to a number of international accords and conventions that require it to combat corruption and bribery in both the public and commercial sectors.

1.2 What does bribery mean?

Bribery is known as “corruption” in South Africa, and it is a felony that can be committed by both public officials and private individuals, as well as public and private companies.

The PCCAA establishes a general offense of corruption with a broad definition, as well as specific offenses for corrupt conduct involving a variety of specific people and issues. We will not dwell on the provisions relating to specific corrupt practices in this essay, instead focusing on the broad offense of corruption.

In general, a person commits corruption if he or she accepts or offers to accept gratification from another person, or gives or agrees to give gratification to any other person for his or her own benefit or that of another, and such giving or receipt is done in order to induce the other party to act improperly in the performance of that individual’s duties.

Money, loans, donations, and presents are all examples of gratification, as are employment, the avoidance of loss or liability, and any other useful consideration or benefit of any type.

In some cases, the PCCAA has extraterritorial authority. Even if the alleged criminal crime occurred outside of South Africa, South African courts will have jurisdiction if the accused: is a South African citizen; is habitually resident in South Africa; was arrested in South African territory; is a firm formed or registered as such in South Africa; or is any group of people in South Africa, corporate or unincorporated.

1.3 What does it mean to be a public official?

Any person who is a member, an officer, an employee, or a servant of a public body, and includes any person in the public service, any person receiving remuneration from public funds, or, where a public body is a corporation, the person who is incorporated as such, is referred to as a “public officer” in South Africa, according to the PCCAA. Members of the legislative and prosecutorial authorities, as well as judicial officers, are expressly excluded from this term.

1.4 Bribery’s Consequences

(a) For the Individuals Involved

The PCCAA’s penalty rules distinguish between different types of crimes. The following are the penalties for the majority of infractions (including the general offense of corruption):

  • A fine or imprisonment up to a period of life imprisonment may be imposed by a High Court in the case of a sentence to be imposed by a sentence to be imposed by a sentence to be imposed by a sentence to be imposed by a sentence to be imposed by a sentence to

  • A fine or imprisonment for a period not exceeding 18 years may be imposed by a regional court in the case of a sentence to be imposed by a regional court.

  • A fine or imprisonment for a period not exceeding five years may be imposed by a magistrate’s court in the case of a sentence to be imposed by a magistrate’s court.

  • Other types of offenses under the PCCAA, such as concealing a corruption violation and being an accessory to or after a corruption violation, have less severe penalties, such as:

  • A fine or imprisonment for a period of not more than ten years may be imposed by a High Court or regional court in the case of a sentence to be imposed by a High Court or regional court.

  • A fine or imprisonment for a period of not more than three years may be imposed by a magistrate’s court in the case of a sentence to be imposed by a magistrate’s court.

  • A court may also impose a fine equal to five times the value of the gratification involved in the offense, in addition to any fine imposed previously.

  • Furthermore, the PCCAA establishes a registry of entities and individuals convicted of corruption-related acts involving contracts, procurement, and withdrawal of tenders, with the result that the national treasury may terminate any agreement and bar such individuals from doing business with the government for a period of ten years.

  • The national treasury may also seek compensation from the person or entity for any damages incurred or sustained by the state as a result of the tender process or the agreement’s conclusion, or for any damages incurred or sustained by the state as a result of having to make less favorable arrangements later.

  • Finally, under the POCA, the revenues of and assets used in the commission of a corruption act may be confiscated and/or forfeited. The value of assets may be utilized to compensate victims of the crime or forfeited to the state in most cases.

  • Anyone convicted of crimes involving the proceeds of illegal activity faces a fine of up to ZAR 100 million or a sentence of up to 30 years in jail.

(b) For the business or legal entity

  • A firm / legal entity that commits the crime of corruption is subject to both the general offense of corruption and the punishments listed above.

c) In the case of the public official involved

  • The PFMA and MFMA contain provisions for dealing with financial mismanagement (which could be construed as corruption) in the context of public procurement. Any political spending that is outside of the regulatory framework and results in charges of financial mismanagement will be investigated and a disciplinary hearing will be held in accordance with the authorized processes. Furthermore, the handling of gifts and hospitality is governed by the codes of behavior for public officials, as outlined in several statutes such as the Public Service Act of 1994 and the Executive Members’ Ethics Act of 1998.

  • Regulations issued under the Local Government: Municipal Systems Act of 2000 aim to further reduce municipal corruption by prohibiting a person fired for financial or related wrongdoing from working as a senior management in any municipality for a period of up to ten years.

  • The majority of the penalties for violating the above-mentioned statutory framework relate to employees of the public sector, and include dismissal, criminal charges, and public disclosure of the person’s identify and details of the infraction.

1.5 Contributions from politics

The Public Funding of Represented Political Parties Act of 1997 governs state funding of political parties represented in Parliament and provincial legislatures. In some cases, this act also makes the accounting officers of political parties accountable to refund the Electoral Commission any money improperly spent.

Private fundraising to political parties, on the other hand, is virtually fully uncontrolled, and transparency is optional. On this subject, public opinion and current case law are split.

1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)

  • In general, South African law does not impose any restrictions on hospitality expenses; nonetheless, whether or not a hospitality expense is suitable will depend on the reasons for the gift or entertainment, as well as the government official’s level of employment.

  • As a result, public officials must ensure that the supply chain management system’s credibility and integrity are not jeopardized. During the performance of their official duties, public officials must not exploit their official positions to obtain gifts or benefits for themselves, nor must they accept any gifts or benefits that are given to them.

  • Senior government officials, on the other hand, may accept gifts that are provided as part of a formal exchange of gifts, or if the gifts are unsolicited or constitute a mild act of hospitality, as long as they are convinced that their safety will not be jeopardized. Senior government personnel, on the other hand, are expected to reveal the following information:

  • Gifts and acts of hospitality valued at more than ZAR 350 from sources other than family members.

  • Gifts from a single source that total more than ZAR 350 over the course of a year.