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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
19 August 2002
PREVENTION OF CORRUPTION BILL: DELIBERATIONS
Documents handed out:
Summary of submissions on Prevention of Corruption Bill 2002
Special Investigative Unit proposed amendment to Prevention of Corruption Bill
Submission from Mr Costa: Working Document 1 - 1 August 2002
Corruption Act (No 94 of 1992)
SALC Report of June 1991: Definition of corruption
[email email@example.com for these documents]
Morning session: The drafter from the NDPP took the Committee through Clauses 3 to 6.
Afternoon session: The Committee continued with Clauses 6 - 9 of the Bill.
CHAPTER 2: OFFENCES AND PENALTIES
Clause 3: Offence of corruptly accepting gratification
The Chair, considering the comments made by various organisations, noted that the ISS had proposed that the term "reasonable doubt" be replaced with "provides a satisfactorily explanation". He asked for the reason behind the suggestion.
Mr Nel, legal advisor for the NDPP, replied that the ISS had based their suggestion on a number of Constitutional judgments, however the words were essentially the same as those in the Manamela case.
The Chair felt that the words used in the Manamela case and those suggested by the ISS meant the same thing in real terms. If the clause were to remain in the Bill, the words from the Manamela case would therefore be used.
Moving on, the Chair noted the South African Police Services suggestion of inserting the word "investigation" in clause 3(4)(a). He questioned why it would have to be believed to be an offence. When one is investigating and receives a bribe, the State does not have to prove that the person concerned was committing an offence. He did not see what was trying to be achieved.
Mr Jeffrey (ANC) said that he could follow subclauses (b) and (c) but not (a).
Mr Nel explained that the clause would cover the situation where a policeman was in the process of arresting a person for committing robbery but was then bribed. In that situation, the robbery would have nothing to do with the matter.
The Chair suggested that Mr Nel obtain more information on the matter.
Mr Jeffrey questioned where the provision had come from and why was it there.
The Chair asked for more information in that regard and noted that it was also a presumption, but was not drafted in the form of Manamela.
Mr Jeffrey questioned if it was in fact a presumption, as the mens rea element had been taken out so it was slightly different from a presumption.
The Chair was of the opinion that sub(3) was also the same presumption but differently worded. Most presumptions were linked to mens rea because they were subjective to the accused. He pointed out that sub(4) was not drafted in the form of Manamela.
Ms Camerer (NNP) was of the view that the specific wording suggested by the ISS was quite a good suggestion, as this was a very specific matter, but did not know where the wording had come from.
The Chair also liked the wording but felt that it was not the same as Manamela. Mr Nel's preference was also to keep the suggestion as close to Manamela as possible. A flood of presumptions had been coming in with the same wording as Manamela, believing it to be constitutional. In his own opinion, the minority judgment was preferable as it was more practical. He suggested that the wording remain as was, and the Committee reread Manamela so that more of a discussion could be held on the case at a later stage.
Mr Nel, explaining the necessity of sub(3), gave the example of a prosecutor in charge of Accused 1 who, during the trial, is seen by the attorney for Accused 2 to be accepting a cheque after which the charge for Accused 1 is dropped. In that situation, it would be difficult to say that the cheque had been received for another purpose.
The Chair responded that the motive is always deduced from the facts. If the prosecutor receives a cheque, it can be deduced that he was accepting a bribe, as prosecutors do not ordinarily receive cheques as part of their job.
Mr Nel agreed that it is a problem and the same problem was also being dealt with in terms of the sub judice issue, where it was also difficult to prove motive.
Mr Jeffrey cautioned against casting the net too wide. The example provided by Mr Nel raises grave concern, but gratification is not only a cheque and is not limited to an amount of money.
He would prefer linking it to a crime that has been committed. Any reasonable person looking at the facts of the docket could not have reached the conclusion of withdrawing the case. In addition, gratification received might have been rugby tickets - and later on a case may have been withdrawn. He questioned whether the person would be charged given that case.
Mr Nel responded that the question was whether it was necessary for a court to put that person into the witness box. It was not necessary with the provision.
The Chair asked if Mr Nel was saying that the provision would force them into the witness box, even thought they might have an innocent explanation. What Mr Nel was wanting was for the Committee to make a decision different from Manamela, which would then force the Constitutional Court to make a decision on whether there should be a different test for prosecutors and policemen. He took that to be a challenge to the Committee.
Mr Jeffrey said that he could see the reasoning emerging, but felt it necessary to be careful. There was also the issue of privacy. Gratification was relatively easy to prove, and the presumption would get rid of the mens rea element, but he questioned if there was a sufficient link relating to the action, as well as the proof of that and how much does that have to be proved. For example, in the scenario that Mr Nel posed, it was not clear what the unlawful thing done was, and would it be necessary to prove that the withdrawal of the charge was wrong?
The Chair said that the issue was simple as two questions needed to be asked: did the person accept gratification and was it done in terms of sub (a), (b) or (c). If so, at the end of the case the presumption kicks in and it becomes the accused's obligation to raise evidence to the contrary, which raises a reasonable doubt. All the provision does is to force the person into the witness box.
Mr Jeffrey felt that there was still no link between the gratification and the action. This did not seem to be an issue and surely it should be. There was no interrogation of the actual act.
The Chair noted that, in terms of ss (3)(c) the State must also take reasonable steps to link the acceptance of the gratification to any unlawful motive.
Mr Jeffrey felt that this was extremely wide as the State could then get access to bank accounts.
The Chair believed that that could not be done as there was no other law to allow for that. It would therefore force the person concerned to bring that evidence in his own defence. So to access the bank account, the police would need some other reason.
Mr Jeffrey reiterated his concerns about privacy and the provision being too wide. His worry was for the many other people who would be charged because of the provision.
The Chair said that, if he understood correctly, sub (4) was covered by sub (3) but Mr Nel felt that that would be too low a presumption for police and prosecutors. The Committee would have to debate and discuss that later. A few words would also have to be added to sub (3)(b) in order to include (4) under (3).
Mr Jeffrey also wanted to know which other jurisdictions were making use of these provisions.
The Chair asked Mr Nel to draft something for the Committee to look at in terms of collapsing sub (4) into sub (3). At a later stage, his suggestion of letting the Constitutional Court decide, would be discussed. Mr Nel was also asked to look at including "investigation" and see if it could be done in the alternative.
Clause 4: Offence of corruptly giving gratification
The Chair asked if "inducement" had not been defined and Mr Nel replied that it was not defined. The Chair continued that if there were ever a definition, it would be a combination of "gratification" and "corruptly". This may mean that a definition of corruptly may not be needed and asked for the possibility to be looked at.
Ms Camerer (NNP) suggested the possibility of the penalty being five times the amount bribed.
The Chair noted the suggestion. Sentencing in a Magistrates Court would be for a maximum of 25 years, while a High Court would be life imprisonment. It was also necessary to ensure that the Minimum Sentence Bill remains intact.
Clause 5: Offence of corruptly accepting or giving gratification to an agent
The Chair stated that there were no comments from organisations on the clause. He asked why, if the presumption under clauses 3 and 4 were correct, were they not put under clause 5.
Mr Nel replied that there was no specific reason. If the presumption could be used in clauses 3 an 4 then it could be used in clause 5 as well.
Mr Mzizi (IFP) believed the word "mislead" in clause 5(3) read more like defeating the ends of justice, which could not mean corrupt because it did not involve bribery.
Mr Jeffrey did not like the wording of sub (3), feeling that it was too contorted to understand its meaning.
The Chair inquired if sub (6) was a presumption, unlike sub (1), (2) and ( 3), which are offences in their own right.
Mr Nel replied that it was not a presumption.
The Chair felt that although the provision was really trying to say that it is not an offence, it could be read otherwise. Regarding sub (5)(b) and (c), he felt the provisions were defences "dressed up" as presumptions and asked how were they to be got around Manamela.
Mr Nel stated that they were not defences. He directed the Committee's attention to clause 5(c) which referred to failure to perform an act and therefore did not even require action to be taken. It was only necessary to prove that the agent received it as an inducement to do that.
The Chair asked if Mr Nel was saying that the provision could not be used as a valid defence.
Ms Camerer asked if he was saying that gratification could not be given without a reason.
Mr Nel replied that it was not necessary for the State to prove it.
The Chair felt that that would be accepting the presumption as complete proof of a fact, and in terms of Manamela this could not be allowed. It assumes that the State does not have to prove the fact. He questioned the difference between clause 5(b) and clause 3(3). The provisions were trying to exclude the mens rea but that would be a presumption and could not be used as a defence. He asked Mr Nel to look at that more as he did not think the Bill would get away with dressing up presumptions as defences and trying to get around Manamela in that way. Referring to sub (6) he felt that a defence could not be created there.
Mr Nel read through the original draft of the clause and stated that the original was clear that the intention was to narrow down the offence. It was not the same as the present provision, which has been coloured to be a defence.
The Chair asked for clarity on the term "agent" and asked from where the definition had been obtained.
Mr Nel responded that it had come from one of the previous Corruption Acts.
The Chair noted that the definition made an employee an agent, and asked if that was so in South African law. He did not think that it was. He asked Mr Nel to find a definition in accordance with South African law, failing which the definition could be left out of the Bill so that the Courts would apply the usual meaning. He did not want to widen the definition.
Mr Nel explained that he had found the definition in the Prevention of Corruption Act 1958.
The Chair stated that the problem with the 1958 Act was that it tried to make the definition as wide as possible.
Clause 6: Offence of fraudulent acquisition of private interest
Adv de Lange (the Chair) read clause 6 which states: "any person employed in the public service who knowingly acquires or holds, directly or indirectly, otherwise than as a member of a registered joint stock company consisting of more than 20 persons, a private interest in any contract, agreement or investment emanating from or connected with the department, component or office in which he or she is employed or which is made on account of the public service is guilty of an offence".
Adv de Lange asked what the phrase "registered joint stock company" means.
Ms Camerer (NNP) commented that this could only mean public company.
Adv de Lange said that there needed to be clarification in the Bill as to whether the phrase included private companies.
Mr Nel noted that the phrase "registered joint stock company" means a registered company, and that this obviously includes private companies, but that this would only be confirmed at a later stage.
Adv de Lange commented that his understanding of the clause was that when a person is a public servant, then he or she may not acquire or hold a private interest in a contract that is connected with the department in which he or she works.
Adv de Lange questioned the heading of the clause, "Offence of Fraudulent Acquisition of Private Interest". He did not understand why the drafters included the words "fraudulent acquisition" in that one could for instance have inherited the interest/shares innocently or could even have purchased such shares prior to working for the department.
Mr Nel noted the above point.
Mr Jeffery (ANC) commented that the words "emanating from" seems to be clear, but the words "connected with" are not. The Bill goes beyond disclosure in that it now makes criminal certain acts by public officers. He also asked for the explanation of the word "indirectly". He said that if taken further, the word "indirectly" would mean that holding interest through somebody else would still be prohibited by the clause. He concluded that he would like to see this clause providing instead that public servants should disclose their interest rather than penalising them.
Mr Nel replied that there is a provision already to the effect that public servants must disclose any interest which is not a salary. Failure to disclose is misconduct, not a criminal offence. He said that in his opinion that provision is sufficient.
Adv de Lange suggested that the words "directly" and "indirectly" be removed altogether as they create confusion. He read the clause to mean that one must at least have benefited from the acquisition or holding in order for this clause to apply to such person.
Mr Jeffery advised that he would be interested to know how other countries regulate corruption.
Adv de Lange replied that the provisions of this Bill have been taken word for word from the Corruption legislation of Nigeria, Hong Kong and Malaysia. However, he asked why the drafters used specifically legislation from these countries.
Mr Nel replied that throughout the world, Nigerian Corruption legislation was regarded as being the best to learn from.
Mr Jeffrey replied by saying that the test should not be whether it is the best legislation or not, but whether it is enforceable.
Clause 7 Offences in respect of private tenders
Adv de Lange noted that this clause creates three offences, namely:
Where A bribes B for B to withdraw his tender.
Where A accepts or agrees to accept a bribe to withdraw his tender so that B can win that tender.
Where A bribes a person organising the tender to accept a particular offer.
Mr Nel commented that a person convicted of the above offence may be included in a publicly accessible blacklist administered by the State Tender Board and may as a result not tender for any contract awarded by the government or its agents for a period not exceeding five years.
Ms Camerer was very impressed with the idea of a blacklist and the exclusion of such blacklisted entities from tendering at least for five years.
Adv de Lange was concerned that the idea of a blacklist and five years exclusion from tendering may not pass constitutional muster. He instructed Mr Nel to seek an opinion on this issue before the provision can be agreed on.
Adv de Lange also suggested that two further offences be added to clause 7(1), namely, a person who accepts a bribe to award a tender and a person who provides inside information to another person in order to tender in a particular way.
Adv de Lange concluded that perhaps the wording of the heading of clause 7 should be changed to read "Offences in respect of Procurement or Withdrawal of Tenders".
Clause 8 Bribery of public officer
Ms Camerer suggested that the common law definition of bribery be incorporated into this Bill.
Mr Nel replied that this would create problems because the common law bribery is not the same as the statutory definition of bribery.
Adv Masutha (ANC) commented that the words "bribery" and "corruptly" seem to be used interchangeably in this Bill, and that the drafters did not seem sure as to what words to use. He added that the headings of the clauses might need to be revisited at a later stage.
Adv de Lange suggested that the definition of the word "public officer" should exclude members of parliament, a provincial legislature or a municipal council. He added that the definition should also exclude any member of the judicial authority or the prosecuting authority. After that, then two separate offences have to be created for such persons, that is, one offence for the executive members and the other offence for the members of the judicial authority.
Mr Nel commented that clause 8(1) makes it an offence to give a bribe and that clause 8(2) makes it an offence to receive a bribe.
Adv de Lange proposed that clause 8(2) should list offences (a) - (f) as in clause 8(1). He added that the word "inducement" must be defined.
Adv Masutha suggested that clause 8(1)(b) should read "performing or not adequately performing any official function" instead of reading "performing or not performing any official function. The reason for this is that there are situations where a person cannot be said to have performed or not performed.
Adv de Lange read clause 9(1) which states: "A person is guilty of an offence if he or she, directly or indirectly, corruptly gives or agrees to give any gratification to any person, whether for the benefit of that person or of another person, with the intent to:
(a) influence the testimony of that person or another person as a witness in a trial, hearing or other proceedings before any court, judicial officer, committee, commission or any officer
authorised by law to hear evidence or take testimony; or
(b) influence that person or another witness to absent himself or herself from such trial, hearing or other proceedings or to withhold true testimony"
He suggested that the clause must read:
"influence the testimony of that person or another person in a particular and untruthful mannerâ€¦" and that the word "true" at clause 9(1)(b) be removed from the text as it does not add anything.
Mr Nel replied that perhaps the words "in a particular manner" have to be added, but that the word "untruthful" would add no value to the clause, and that in fact it would have the effect of making the clause to be narrowly interpreted.