A summary of this committee meeting is not yet available.
JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
31 July 2002
PREVENTION OF CORRUPTION BILL: HEARINGS
Chairperson: Adv De Lange (ANC)
Documents handed out:
Prevention of Corruption Bill [B19-2002]
Submission by Werksmans Attorneys [document will be added when it becomes available electronically]
Submission by South African Police Services (Appendix 1)
Submission by Special Investigating Unit (Appendix 2)
The Committee convened public hearings on the Prevention of Corruption Bill. The Chairperson pointed out that he was not pleased with the fact that certain bodies that had requested late submissions had not been forthcoming. The Committee heard from a representative of the Jockey Club that the definition of corruption should be widened so that bribery should be covered under corruption relating to sporting events. This would cover the situation where a bookmaker encouraged a jockey to influence the results of a match. Thus in addition to charging the jockey, the provision would allow the bookmaker to be charged for his involvement. This proposal will be considered by the Committee.
The South African Police Service agreed with the Bill but asked that the Committee consider including the 'sale' of official information for reward as conduct prohibited by the Bill. This type of conduct, they argued, is most likely experienced in other sectors and bodies as well.
The Special Investigating Unit asked for the inclusion of a number of principles in the Bill. These included the need to address civil liability falling from corruption. They argued that individual interests had not been sufficiently dealt with. The Unit pointed out that with regard to the prescription of claims based on corruption the usual three-year period applied. However, the SIU was involved in many complex investigations. In certain cases, the SIU would find it extremely difficult to fulfill its functions in the three-year period. They asked the Committee to consider extending the period and furthermore to extend the period to include private litigants, and therefore to deal with the inequality.
Adv De Lange explained that they would be dealing with the Prevention of Corruption Bill. In that regard, he explained that there would be public hearings on 31 July 2002 and on 1 August 2002. He noted that the committee had struggled to receive submissions. Nevertheless, he stated that the meeting today involved three submissions. The first would be from Mr Costa of Werksmans Inc, Mr Slabbert of the SAPS, and Adv Theron of the Special Investigative Unit.
He pointed out that the deadline for submissions had been 6 June 2002. However, he had been approached by IDASA and by the Institute for Security Studies, with requests for late submissions. Although the requests were granted, the submissions had not been forthcoming. He explained that IDASA then asked for a further deadline, on the basis that they were in the process of compiling a composite report. On Tuesday 29 July 2002, IDASA then informed the Chair that the submission would not be composite. He went on to say that this had been a very unfortunate situation, and that it had left him quite aggravated. He firmly stated that he would not let his Committee be dealt with like that.
Mr Costa explained that he was also speaking in his capacity as that Chairman of the Jockey Club of South Africa. Before moving on to his written submission, he asked leave of the Chair to make an oral submission.
The Chair gave him leave.
Mr Costa explained that he had dealt with the typographical areas on his submission. He turned to the definition of a 'relative', and suggested that the word 'partner' be replaced by the word 'spouse' in order to cater for both heterosexual and same sex marriages. He stated that the definition of 'dealing' in terms of Cl 20 (1) would need amendment. In addition, he felt that the definition of 'corruptly' negated the meaning of the word and would therefore cause confusion. Thus he felt that it would also have to be amended.
Mr Costa moved on to his written submission. He said that he would be raising the definition of 'ratification' for consideration, and explained that a situation where the Director of a company receives a reward for services rendered could constitute ratification.
Mr Costa proposed that at the end of the definition of 'sporting event', found in Clause v (c) of the definition of 'corruptly', a sub-clause should be added in order to cover the crime of bribery.
Mr Jeffery (ANC) explained that the Committee had two versions of the Bill before it, and that Mr Costa was referring to the first version.
Mr Costa apologized and stated that he had relied on the copy sent to him.
Adv De Lange responded that this was not the fault of Mr Costa. He directed Mr Costa not to continue with his submission whilst he sorted out the confusion.
Adv De Lange confirmed that the Committee had received another copy of the Bill, and that this Bill had been amended further than the Bill relied on by Mr Costa. Nevertheless, he directed Mr Costa to continue with his sub
Adv De Lange imagined that the proposal would be important for the Jockey Club. He asked Mr Costa to explain this to the Committee.
Mr Costa explained that a Bookmaker would encourage a jockey to influence the results of a match. Thus in addition to charging the jockey, the provision would allow the Bookmaker to be charged for his involvement.
Adv De Lange stated that the proposal would widen the ambit of the provision.
Mr Costa agreed.
Mr Costa suggested that a subsection (d) would have to be added to the definition of 'corruption'. He said that he hoped to widen the scope of the definition. He explained that all persons involved in horseracing were fully aware of the weakness of human nature. Hence the Jock ey Club was formed in order to be the policemen of all jockeys. He emphasized that all jockeys were required to sign the Club rules. However, such a body did not exist in other sports, such as cricket. This provision would therefore deal with such situations.
Mr Costa turned to the definition of 'sporting event' found in (xx) (iii) (a). He proposed inserting the word 'including' at the end of the phrase 'any even in any sport'. This is because a dog or a horse, for instance, could not be described as individuals.
Mr Costa moved on to Clause 14 (1) and suggested the insertion of a sub-clause. In addition, he proposed that an additional offence be included in Clause 14 (1) (d), the offence being committed where one assists a party in violating a sporting event. He referred to the Bookmaker situation and explained that he wanted the conduct to be criminalised.
Adv De Lange began by saying that it would be difficult for the Committee to engage with him because they had two Bills. Nevertheless, a copy of the final Bill would be made available to Mr Costa in order to enable him to establish which of his issues had not been dealt with.
Mr Mzizi (IFP) thanked the Chair. He pointed out that although he did not have any other documents before him, the suggestions raised were indeed valid. He explained that people would often confuse the word 'misconduct' with the word 'corruption'. As a result, he wanted a definition of the word 'misconduct'.
Mr Costa stated that there was a distinction between the two words. However, he explained that 'misconduct' could involve either negligent conduct or a commercial breach of a provision. On the other hand, 'corrupt' referred to dishonest conduct. An element of doubt therefore resulted from the definition as it stood.
Adv De Lange confirmed that Mr Costa sought to at least criminalise negligence in the Jockey Club.
Mr Costa said that he was not well versed in criminal law, and thus could not respond to the question as such. However, he did not think that this was the case. He explained that he was simply looking for an additional sanction, and sanction that would act as a deterrent and would maintain the integrity of the sport.
Mr Swart (ACDP) noted that his question would tie-in with the first question. He was aware that the Jockey Club was a prominent body in administrative law. Thus he wanted to know whether Mr Costa foresaw that the Bill would deal more with criminal conduct.
Mr Costa confirmed that many administrative law cases had gone to court. He believed that the imposition of criminal sanctions would increase upon the proof of dishonest fraudulent conduct. He added that this would also allow the Club to bring to book persons not in the jurisdiction of the Club.
Adv De Lange asked for further questions. He noted that the proposals were quite clear. He said that the Committee would seriously consider the submission. He pointed out that the Committee was happy that at least one sporting company made a submission. He added that should Mr Costa wish to make further comments at a later stage, he should send them to the Committee. He noted that such comments would be circulated pending the passing of the Bill.
South African Police Services
Adv De Lange introduced Mr Slabbert and Director Grobbler to the Committee. He stated that it would be interesting to hear what the police, the main implementers of the Bill, had to say regarding the Bill. He added that the Committee was assuming that they were commenting on the latest version of the Bill.
Mr Slabbert responded negatively. He began by saying that corruption manifested itself in many different ways. Nevertheless, the Bill provided a platform to address most corrupt activities. He explained that one form of corruption in the SAPS was the sale of official information for a reward, one to which the recipient is not entitled. Although S 70 of the SAPS Act dealt with police corruption in this regard to a certain extent, the provision was limited to members of the SAPS, and applied only to information that would prejudice that SAPS in the exercise of its powers and functions.
Adv De Lange stated that should one falsify a S 205 order and include other information, this would not prejudice the SAPS at all.
Mr Slabbert firmly agreed with the Chair. Thus he proposed a specific mention of this conduct in the Bill, although the conduct would nonetheless be covered by the Bill.
Mr Slabbert explained that this was the substance of their input, and that they were happy with the Bill as it stood at this stage.
Adv De Lange confirmed that this meant that he could ignore the rest of the comments made on the written submission. This meant that the issues were covered.
Mr Slabbert affirmed that position.
Adv De Lange explained that he did not like the idea that the common law could not be revived.
Mr Slabbert responded that this was one of the issues that they did not want to pursue.
Adv De Lange supported the idea of an incentive. However, he cautioned that they could not build in too much incentive. He asked for the possibility of other options.
Mr Slabbert could not see how the incentive could ever be formulated in legislation. Thus although it was very effective, it would probably fall short practically.
Adv De Lange referred to point 4, the giving of information for sale, and he asked that a proposal be drafted indicating the wording of the offence.
Adv De Lange asked the floor whether there were any questions. He noted that the SAPS had really only made one point.
Mr Mzizi wanted to know whether the person buying the information would also be an accessory to the crime.
Mr Slabbert responded that the scenario given would constitute corruption.
Mr Grobbler agreed with Mr Slabbert. The accessory would also be liable. However, this would not extend to situations where the informer has committed a fraud, and he gave the example of pretending that he had received the information.
Mr Slabbert reckoned that a person demanding that to which that person was not entitled was an example of fraud.
Mr Mzizi rephrased his question. He explained that an officer would usually be charged with bribery. In light of that, he wanted to know what the person who makes the bribe would be charged with. Otherwise, he asked whether that person would not be charged at all.
Mr Slabbert responded that both persons could be charged. He added that both the corruptor and the corruptee would fall within the ambit of the Bill.
Adv De Lange referred to the duty of public officials to report corruption. He noted that he was not sure why it was limited to public officials. He wanted to know what the speakers felt about creating such a duty in our law.
Mr Slabbert felt that it would be a good idea to extend such a duty to the broader public. He pointed out that such a provision did exist in the SAPS Code of Conduct. However, it was not mandatory. Nevertheless, he stated that it would be difficult to enforce such a duty.
Adv De Lange wanted to know whether the speakers agreed with him that it would be equally important to extend such a duty to the private sector.
Mr Grobbler agreed. Defining the incidence of corruption would be one of the most difficult things to do.
Mr Swart wanted to know whether the SAPS worked with the South African Revenue Services in an attempt to reclaim the money that had been paid out. This would mean more than a criminal element to the offence. In addition, he wanted to know whether the speakers were of the opinion that the criminal sanction would suffice in the future.
Mr Grobbler imagined that the Proceeds of Crime Act would deal with that situation. However, he wondered whether criminals would make declarations.
Mr Swart explained that such a situation would be evident in the investigation. He wanted co-operation between the SAPS and the SARS.
Mr Grobbler replied that this already occurred as he understood.
Adv De Lange asked for further questions.
Adv Masutha (ANC) apologized for his late arrival. He turned to the definition of 'corruptly' and noted that it extended beyond a violation of the law. He wanted clarification regarding why a need to do this existed. He noted that the definition would include practices that were not sanctioned by the law.
Mr Slabbert stated that this was very much the point raised by Mr Costa. He explained that they wished to see the definition as wide as possible, and referred to the example of the sale of information. He felt that it would not be unfair because the word could not be seen in isolation.
Adv De Lange said that the definition was rather worrying. It included all negligent and intentional acts within the definition, and thus was enormously wide. He wondered whether such a provision would be void for vagueness in terms of the Constitution. He wanted to know whether they should not attempt to be more specific, bearing in mind the comments made.
Mr Slabbert added that the words 'spirit of the law' were probably very wide.
Adv De Lange agreed.
Adv Masutha was trying to see how Clause 3 (1), creating the offence and the definition of corruptly, gave substance to the offence. He explained that the mere fact that one received a benefit would not in itself be morally repugnant. Thus he wanted to know what the person would have done wrong in order to warrant the criminal sanction. Otherwise, he wanted to know whether this was a case of the automatic operation of the law.
Mr Slabbert stated that although the provision seemed to go too far on the face of it, one had to wonder why the person would be receiving gratification. He added that if one fails to comply with orders, why then would one be receiving gratification from another.
Adv De Lange said that it would possibly be helpful if the word 'corruptly' was moved around in the definition. He added that they would probably have to look carefully at the way they dealt with the word in the rest of the Bill. Nevertheless, he noted that this would not take care of the sporting people.
Mr Slabbert responded that the suggestion sounded good.
Adv De Lange introduced Adv Theron of the SIU to the committee. He explained that Mr Hoffmeyr had apologized for his absence. As the result thereof, Adv Theron was sent on his behalf.
Special Investigative Unit
Adv Theron thanked the Committee and confirmed that he was appearing before the Committee in a representative capacity.
Adv Theron explained that one of the functions of the unit was to investigate corruption and to institute civil proceedings as a result thereof. He emphasised the point that it was only in the civil field that the SIU sought redress on behalf of the government.
Adv De Lange stated that the two pages merely established what the unit sought without making any suggestions for the fulfillment of the desires. He asked Adv Theron to draft the suggestions for the Committee.
Adv Theron explained that they had short notice to prepare the submission. Thus they had done what they could in the short space of time. He undertook on behalf of the SIU to draft the Chapter that the unit would be interested in.
Adv De Lange wanted to know the broad principle that the SIU sought to include.
Adv Theron stated the principles:
The Bill is completely silent on civil liability falling from corruption.
The need to address this issue is as strong, if not stronger, as the criminal aspect.
He pointed out that individual interests had not been sufficiently dealt with.
Adv Theron went on to list the problems that were faced by a civil litigant wishing to claim losses:
Forced to fall back on common law remedies in terms of which the plaintiff bears the onus of proof, with statutory assistance.
The common law is an extremely slow developing system. Thus is often does not keep pace with fast developing practices.
A firm belief is that corruption is one such area facing these problems.
Adv De Lange asked him what they were asking.
Adv Theron stated:
They have in mind the introduction of a statutory cause of action in order to allow the plaintiff to claim for losses suffered.
A claim based on enrichment flowing from corruption. At common law, there is no general enrichment claim in our law. In addition, it is often difficult to satisfy the common law parameters.
A statutory cause of action whereby bribed monies received by an employee may be claimed by the master of that employee.
The creation of presumptions in favour of a plaintiff wishing to quantify his claim. The Constitutional difficulty of the reverse-onus does not apply to civil law matters. Thus the onus should be shifted to the defendant.
Adv De Lange did not think that the situation was as simple as Adv Theron would seem to suggest. He explained that the reverse onus in civil cases had not yet been challenged. However, he felt that this was only a matter of time. Thus he cautioned Adv Theron to be careful of his suggestion because he was sure that there were Constitutional rights against which civil presumptions could be challenged.
Adv Theron explained that his submission was general.
Adv Theron concluded that the question of the prescription of claims based on corruption would have to be dealt with. He explained that the usual three-year period applied. However, the SIU was involved in many complex investigations. This meant that in certain cases, the SIU would find it extremely difficult to fulfill its functions in the three-year period. He wanted the Committee to consider extending the period. He submitted that the Committee extend the period to include private litigants, and therefore to deal with the inequality.
Adv Masutha stated that the unlawful conduct would have to result in a quantifiable loss on the State. He wanted to know whether the benefit would have to be payable to the State, because he felt that pro rata sharing would be more appropriate. In that regard, he wanted to know what the basis of the claim would be, that is, delictual or an asset forfeiture.
Adv Theron explained that the liability flowing from corruption would not necessarily amount to a delict. This meant that there were other causes of action that did not necessarily arise from losses. He gave the example of enrichment claims in that regard. He stated that the liability envisaged by the unit would be coupled to a loss or some form of impoverishment.
Adv Masutha wondered whether the matters covered by Adv Theron were so complex that they should ideally be dealt with in a fresh Bill. He noted that there was a definite need to revisit all areas of the law.
Adv Theron responded that he felt that the interests of individual plaintiffs would not be sufficiently dealt with. He stated that they were currently dependent on the National Prosecuting Authority to prosecute.
Adv De Lange wondered whether a section did not already exist in the Criminal Procedure Act, allowing one to recover losses.
Adv Theron explained that before relying on the CPA, there would have to be a prosecution. He emphasized that there was a clear distinction between civil and criminal liability, and that he was addressing only civil liability. He acknowledged that he was dealing with a whole new area of the law. However, he submitted that if the issue of corruption had to be dealt with in its entirety, Parliament had a duty to look into it.
Adv De Lange told Adv Theron not to worry whether or not Parliament would fulfill its duties. He stated that the statement was not a problem because Parliament would do what it had to do.
Adv Theron pointed out that the fact of the matter was that the problem existed and that the problem would have to be dealt with. He added that he had thought that these public hearings presented the opportunity for change to be made.
Mr Jeffery (ANC) stated that the SIU already had power to cover stolen assets. He wondered whether the issues raised by Adv Theron should not be specific to the SIU rather that be included in the Bill currently in debate.
Adv Theron responded that such an Act would apply only to the SIU.
Adv De Lange added that it would only apply to the State.
Mr Jeffery explained that his suggestion was only meant to provide interim relief. He stated that this was out of a concern that the proposed new Chapter would take a long time to become the law.
Mr Jeffery was concerned with the proposal for the further causes of action. He suggested that this was an entirely new section with wide ramifications.
Adv Theron explained that the SIU Act had been the subject of various High Court decisions, the upshot of which was that the unit would not be able to go to court without a cause of action. He stated that the Act did not give the unit the power to litigate on behalf of the government without further ado.
Mr Jeffery felt that he and the speaker were talking at cross purposes. He explained that the overall concern was indeed a need for action. However, he found it frustrating that such a submission was being made at the stage when the Bill was being discussed by the Executive. He added that his was a concern for the ramifications of the Bill.
Ms Chohan-Kota (ANC) stated that she was of the opinion that it would be technically feasible to include the retrospective aspect of recovery. However, she wanted to know whether his suggestions would be legally feasible.
Adv Theron added that corruption was not an issue solely felt by the State. As such, he felt that it would be necessary to address the entire matter from a perspective that was wholly committed to the State.
Adv De Lange directed Adv Theron to draft the Chapter as quickly as possible. He said that the committee would see how to deal with it from there.
Adv Masutha felt that it would be useful if a break-down of the proposed Chapter could be provided. He added that in so far as the law of evidence would be concerned, this would require providing a full sense of the areas of the law that would require amendments.
Adv De Lange noted that although it was true that the unit had made a late submission, this was not as severe a problem because the process was moving slowly. He directed the committee clerk to send a copy of the Bill go all the sporting bodies, making an invitation for written comments. He strongly felt that these bodies would have to be heard. The Chair concluded by explaining that the meeting on Friday 1 August 2002 would involve further public hearings on the Bill. He noted that President Bush of the USA had just signed law dealing with corruption in overseas companies and close corporations, and that he had received copies of the Bill. He directed Mr Nel to peruse the Bill in order to determine worthwhile points that could be imported to the South African legislation.
The meeting was adjourned.
SOUTH AFRICAN POLICE SERVICE:
COMMENTS ON THE PREVENTION OF CORRUPTION BILL
JUSTICE PORTFOLIO COMMITTEE I & 2 AUGUST 2002
The South African Police Service has considered the contents of the Bill and is in agreement with the provisions thereof. Accordingly our comments are limited to general comment as this Bill is welcomed and supported.
Corruption, by its very nature, manifests itself in so many ways that it is in all probability impossible to provide for all the possible forms it may take on.
The Bill however, in our opinion, provides a platform from which most corrupt practices can be addressed. Although one must accept that certain corrupt activities could at a stage perhaps prove not to be covered by the provisions, the Bill undoubtedly lays a firm foundation for creating and environment through which corruption can be effectively addressed.
It may be mentioned that one of the forms of "corruption" found in the South African Police Service is the "sale" of official information for reward. In this regard we are not referring to classified information, but information to which the recipient is not necessarily entitled. So, for example, it is not unknown for police officials to, supply private investigators with existing police information or to utilize police machinery to obtain such information, in return for some gratification.
Although, this type of conduct is, to an extent addressed by the provisions of section 70 of the South African Police Service Act, 1995 (Act No.68 of 1995) which provides that:
"Any member who willfully discloses information in circumstances in which he/she knows, or could reasonably be expected to know, that such a disclosure will, or may, prejudicially affect the exercise or performance by the Service of the powers or functions referred to in section 215 of the constitution shall be guilty of an offence,"
this provision is limited to members of the South African Police Service.
Furthermore, the section only applies to information which prejudicially affects the Service in the exercise of its powers and functions, thus limiting its scope even further. When one has regard to the fact that it will, for example, be difficult to conclude that the furnishing of a person's address particulars to a tracing agent, is prejudicial to the Service, the limits of the provision becomes evident.
As this kind scenario is not limited to information held by the South African Police Service, and is most probably also experienced in other public bodies, and even in the private sector, the possibility of a similar provision being extended to cover all stakeholder could possibly be considered.
Although it is arguable that this type of information peddling can be addressed through some of the provisions of this Bill, it may be advisable to address this problem specifically.
In conclusion it is submitted that not only will this Bill provide an effective tool for combating corruption, but will serve as a deterrent.
TO: DIRECTOR DP GARNETT
PREVENTION OF CORRUPTION BILL, 2OO~
1. The Cabinet Memorandum (No 4 of 2002) pertaining to the above Bill, referred to this office
28 January 2002 by the office of Asst Comm Moorcroft refers.
2. After perusal of the Cabinet Memorandum and the Prevention of Corruption Bill, this office wish to comment as follows:
2. Ad definition of "public service"
It is uncertain whether officials of the Directorate of Special Operations (Scorpions) are covered by the present definition.
2.2 Ad clause 3(3)
The presumption in this clause provides for the acceptance of gratifications 'from a person holding or seekingâ€¦â€¦â€¦". The person referred to in this clause often has no direct interest in a contract, permit etc. It is proposed that the word 'person' be expanded to include representatives or agents of such a person and to include juristic persons. A partial solution address this, would be to include the words "directly or indirectly" before the word "person" in Iine 3 of sub-clause (3).
2.3 Ad clause 3(4)
It. is proposed that the word "investigation" be added after the word '"detection" in the second line of sub-clause (4).
2.4 Ad clause 10
Clause 10 provides for the bribery of foreign officials. It is proposed that clause 10 be expanded to include the bribery of any official. Bribery in this context is not only limited to foreign public officials but can be committed by any official (private or public, local or foreign).
Ad clause 12(4)
The question arises whether these provisions should be included in a Bill on corruption. Are these principles not provided for in the Public Finance Management Act, No 1 of 1999? It these provisions are retained in the present Bill, concepts such as approval, cash backing, etc. need to be qualified.
Ad clause 14
Clause 14 does not cover bids for the hosting of sporting and/or other events. This could perhaps be included in the Bill.
Ad clause 18(1)
We note that the alteration, tampering of physical crime scenes is not included in the Bill. This should perhaps also be addressed in clause 18(1).
Ad clause 19(1)
It is suggested that the words 'to the court" in line 3 of the sub-clause be deleted. If an explanation has to be given to a court first, this will exclude the discretion of the Director of Public Prosecutions to institute criminal proceedings.
Ad clause 22
Clause 22 reinstates the common law crime bribery. The question arises whether bribery as such has not already been covered by the present Bill. If not, we have doubt whether a common law crime can first be repealed in one Act and later on be reinstated by another Act. It is proposed that the newly created offence of bribery be redefined, along the lines of the previous definition, in the present Bill.
3. Corruption is often a difficult offence to prove in a court of law. One of the reasons for this is the fact that both the corruptor and corruptee are committing the offence. Because of this, people are afraid to blow the whistle on corruption. It should be considered whether an incentive to disclose corruption. shouldn't be built into the legislation.
4. The SAPS is often confronted with situations where officials disclose official information to private and other parties. In many instances it is difficult to prove a link between the disclosure of information and some or other reward/gratification. Unauthorised/unethical disclosure information is in many instances also not covered by present legislation. It is proposed that unauthorised/unethical disclosure of official information also be provided for in the present Bill.
5. The above comments were made by the Legal Component, Detective Service and Crime Intelligence. The comments of Asst Comm Moorcroft, Head : Strategic Management and Dir Grobler, Commander of the National Anti-Corruption Unit are attached for your information.
DIRECTOR: LEGAL COMPONENT, DETECTIVE SERVICE & CRIME INTELLIGENCE NF VAN GRAAN
Telephone number: (012) 339 2645
SIU SUBMISSION : PREVENTION OF CORRUPTION BILL
I refer to my letter forwarded to you earlier today.
I forward herewith the following comments received from the Special Investigating Unit's Legal Team. These comments focus primarily on issues relevant to civil liability and should not be regarded as an effort to deal comprehensively with all matters contained in the Bill The following submissions are made:
2 I have not had a full opportunity of making an in-depth study of the bill and I am not able to
comment comprehensively on It. However, the bill seems to be confined to criminalizing
corruption and does not contain any provisions dealing with civil liability arising out of corruption. I see the bill as an opportunity for addressing difficulties facing the Special Investigating Unit in proving civil liability on the part of perpetrators of corrupt acts and the beneficiaries of enrichment arising out of corruption. At the same time the difficulties sometimes experienced in proving the scope and quantum of claims arising from corrupt practices may also be addressed.
3 My proposal is that an additional Chapter be introduced into the bill which would create
statutory causes of action for the civil recovery by a victim of corruption, of the following:
3.1 any loss arising as a result of corrupt conduct on the part of the perpetrator thereof;
3.2 any enrichment on the pan of any person arising out of corruption; and
33 any gratification corruptly received by the recipient thereof in an amount equal to the value of
4. The newly introduced chapter could also provide for the creation of statutory presumptions
assisting claimants who wish to rely on the aforesaid causes of action to prove the quantum
of their claims. The following presumptions should in my opinion be considered:
4.1 a presumption that, if any money was expended or property lost or disposed of as a result of
a corrupt act or dealing, it shall be presumed, unless the contrary is proved that a loss was
suffered equal to the amount of money so expended or the value of the property so lost or
4.2 a presumption, that, if it is proved that the respondent or defendant concerned performed an
act or became a party to a dealing which is proved to be a corrupt act or dealing giving rise
to civil liability in terms of the bill, it shall be presumed unless the contrary is proved, that any
other similar act performed by, or any other similar dealing to which such respondent or
defendant became a party, is also a corrupt act or dealing giving rise to civil liability in terms
of the provisions of the bill".
Adv G Visagie
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