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JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
20 August 2002
PREVENTION OF CORRUPTION BILL: DELIBERATIONS
Chairperson: Adv J H De Lange (ANC)
Prevention of Corruption Bill [B19-2002]
Summary of submissions on Prevention of Corruption Bill 2002
Business Day Article on Bill entitled "Considering Crime and Corruption"
Explanatory Memorandum on the Bill (see Appendix)
Pages 1, 4-8 and 56 of the 1991 SALC Report on Bribery
Corruption Act (No 94 of 1992)
SALC Report of June 1991: Definition of corruption
Comparative Legislation: Nigeria, Malaysia, Singapore, Hong Kong, Canada, Australia, India, USA, Germany, Lesotho and Kenya
[email email@example.com for these documents]
The drafter from the National Director of Public Prosecutions took the Committee through Clauses 10 to 21 in a meeting which lasted all day.
Clause 10: Bribery of foreign public officials
The Chair requested Mr Gerhard Nel, Office of the National Director of Public Prosecutions, to provide Members with a copy of the South African Law Commission Report on Bribery. This clause has been introduced in response to the problem experienced some time ago with Sol Kerzner, who got off scot-free after he had bribed an official from the then Transkei government. The problem under the previous legislation is that it does not create a crime for the bribery of foreign officials and this is the defence upon which another Mr Nel, the offending foreign official in that matter, based his case when he was called to report to this Committee on his actions.
Mr Nel stated that during 1997 a Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Convention) was devised, which urged member countries to include such provisions in their legislation. This is contained towards the end of the document entitled "Comparative Legislation: Nigeria, Malaysia, Singapore, Hong Kong, Canada, Australia, India, USA, Germany, Lesotho and Kenya", especially Article 1.
The Chair asked why the provisions in the Bill do not resemble those in the foreign legislation?
Mr Nel replied that he had used the example set by the Canadian and American legislation.
The Chair stated that the Convention provides "international business", whereas Clause 10(1) contains no such reference to "international" business.
Mr Nel responded that Clause 1 does contain a definition of the term "business" and specifically includes "within the Republic or elsewhere", which does cover the concern raised.
The Chair stated that he preferred the use of the phrase "in the conduct of business" instead of "in the course of business" in Clause 1. It is debatable whether the word "corruptly" should be included in this clause at all. Furthermore, Mr Nel is requested to explain the reason for failing to include "intentionally" in this clause, as is done by the foreign legislation.
Mr Nel replied that South African law interprets the clause as including this element of the offence.
The Chair requested clarity on the fact that the foreign legislation includes "an offer or a promise", whereas the Clause 10(1) stipulates "gives agrees to give".
Mr Nel responded that Clauses 16 and 17 of the Bill lists all the relevant offences here.
The Chair contended that the offence created by the clause would be dealt with in Clause 16. Further differences between this clause and the foreign legislation includes the fact that the Bill provides "give a gratification", whereas the foreign legislation states differently, and the clause includes "directly or indirectly", which the foreign legislation does not include.
Mr Nel suggested that the foreign legislation provides "indirectly or directly or via an intermediary".
The Chair stated that this formulation is different because the inclusion of an intermediary does not mean that it was done "indirectly or directly". Thus the clause has to state "personally or via an intermediary". Furthermore, Clause 10(1)(a) provides "a consideration", whereas the foreign legislation states "an inducement", and the decision to include the former introduces marks a new addition.
Mr Nel informed the Chair that he had borrowed this formulation from the Canadian legislation.
The Chair requested Mr Nel to reconsider this, and proposed that the phrase "a consideration" be removed from Clause 10(1)(a), and "as inducement" should be inserted after "gratification". Also, the phrase "or official duties" should be inserted after "public functions" at the end of Clause 10(1)(a), and "to induce" would then also be removed from the beginning of Clause 10(1)(b). The structure of the whole clause should be re-arranged, because it would make more sense should the phrase "in order to obtain or retain business or an improper advantage in the conduct of business" be placed after "foreign public official". It is awkward to commence the provision with
"in order to...", and it has to be considered whether "directly or indirectly" should be included at all because it relates to the intention element and could introduce an aspect of negligence. The phrase "personally or on behalf of someone else" should be inserted after "foreign public official" at the end of Clause 10(1).
Mr Nel replied that Article 1(4)(c) the document entitled "Comparative Legislation: Nigeria, Malaysia, Singapore, Hong Kong, Canada, Australia, India, USA, Germany, Lesotho and Kenya" does not include these provisions.
The Chair stated that it does contain the phrase "whether or not within the official's competence", which must be included in Clause 10 so that it would not matter whether the official had the power to do so. This would then not make it a defense if the official claims that s/he did not have the necessary "power, right or opportunity". Furthermore, Article 2 ensures that legal entities are also included, and the Bill does the same via the definitions in Clause 1.
Mr Nel stated that the other issues listed, such as jurisdiction, are covered in the Bill itself.
The Chair reiterated that the outstanding issue is whether nor not the phrase "directly or indirectly" should be included in the provision. The drafters have tried to include all the concepts contained in the foreign legislation, but have reworded it to suit the South African context.
Imam G Solomon (ANC) questioned whether "foreign public official" in Clause 10(1) includes a government official of a foreign country. Furthermore, he asked whether this term includes the non-government sector as well, because corruption in this sector is rife.
The Chair replied that Clause 21 stipulates the offences that can be committed by the non-government sector, and then the offences listed under Clauses 3, 4 and 5 would apply where the crime is not committed by the public sector specifically. Clause 10 thus details a crime that is committed by foreign public officials specifically.
Adv M Masutha (ANC) stated that he is happy with the formulation of Clause 10, but requested an explanation on the policy behind the clause.
The Chair referred Adv Masutha to Convention contained towards the end of the document entitled "Comparative Legislation: Nigeria, Malaysia, Singapore, Hong Kong, Canada, Australia, India, USA, Germany, Lesotho and Kenya", which notes that South Africa has signed an agreement in which it undertook to create the crime of bribery of foreign officials, and Clause 10 is also a response to the loophole uncovered in the Sol Kerzner matter.
Clause 11: Bribery in relation to auctions
The Chair contended that this area has enormous scope for bribery.
Mr Nel agreed, and added that this is especially so in relation to insolvent and deceased estates.
The Chair requested Mr Nel and his colleague from the State Law Advisor Office, Ms Gordon, to go through the Bill and the relevant foreign legislation and cross-reference each offence. They should also check for instances in which a similar offence is created, even though the statutes do not share the identical wording. This would provide easy references for research purposes.
Mr Nel informed the Chair that this has been done in paragraph 3.13.2 in the document entitled "Explanatory Memorandum on the Bill", and each clause is followed by a section entitled "Corruption Legislation" which does exactly what the Chair has just requested.
The Chair agreed, and stated that it is thus no longer necessary for Ms Gordon to perform that task. A decision has to be taken on the inclusion of the word "corruptly" in Clause 11(1). Surely "refrain[ing] from bidding" in Clause 11(1)(a) is not the only crime that can be committed at an auction, and one would imagine that the person conducting the auction does have the potential to provide people with information that would allow them to cheat.
Mr M Mzizi (IFP) contended that there would be little chance of this occurring, because everyone does not bid at the same time.
The Chair questioned whether the only crime that could be committed here then is getting someone to refrain from bidding so that no attempts are made to push up the price of the particular item. What about the scams in which people work together to bring down the price, as this does happen. It appears that the real crime here would be trying to get people to refrain from bidding.
Adv Masutha requested clarity on how exactly the auction system works, because it seems that "auctions " here are not only referring to those executed in terms of a court order, such as a liquidation of assets or sales in execution. Rather it seems that anyone can initiate such auctions.
The Chair informed Adv Masutha that this clause is concerned with the bidding process itself.
Adv Masutha stated that this clause focuses on those individuals who collude to bring down the price of the item, but it does not recognise the part played by the auctioneer himself in this activity. The auctioneer could be managing the whole situation.
The Chair replied that he had been told earlier that this could not happen.
Adv Masutha reiterated his concern and suggested that the auctioneer is not the owner of the particular item, but has only a professional interest in the property as he receives a commission on the sale.
The Chair maintained that Clause 17 does criminalise a conspiracy here, which would cover the auctioneer.
Adv Masutha contended that this only covers the situation where the auctioneer entices bidding by alluding to the quality of the property which influences the level at which people are prepared to bid. The auctioneer could clearly undervalue the property by giving the wrong impression and thus influence how people bid without actually colluding with others.
Mr Nel replied that this matter is covered by the common law crime of fraud.
Mr Mzizi stated that this clause should also include those SAPS officials who auction off confiscated goods, and it is uncertain who the auctioneer would be is such cases. It could be SAPS itself, because it is found that people would inform the SAPS official that they have an interest in the goods before the auction is actually conducted.
Mr Nel responded that this is a difficult scenario to answer, but if the person pretends that the value of the article is higher than the actual amount and a misrepresentation can be proven, then this would obviously constitute fraud.
The Chair informed Members that he has received a copy of the Prevention of Corruption Bill enacted last week by President Bush, and copies will be circulated to Members. He requested that both Mr Nel and Ms Gordon go through this document to identify any important issues that might have to be included in the Bill. That statute is aimed at the big corporate dealings that have caused the collapse of stock markets.
Imam Solomon requested clarity on the implications of a situation in which phony bidders are employed to compete with each other to push up the price.
The Chair stated that this is not a problem because it could only result in securing more money for the beneficiary.
Imam Solomon reiterated that this amounts to the auctioneer fraudulently pushing up the price.
Mr Nel responded that the auctioneer would then be found guilty under the common law, because s/he has benefited fraudulently.
The Chair disagreed with Mr Nel, because Clause 11(1) only deals with "refrain[ing] from bidding".
Imam Solomon replied that this is precisely his point.
The Chair stated that the provision should include the phrase "to influence the bidding". This would then cure the concern raised by Imam Solomon, as long as the auctioneer does not receive any gratification as a result of pushing up the price.
Ad Masutha contended that the Committee is drifting into murky water when dealing with the instrument of the auction. Inherent in it are dealings, traditions and wheeling and dealing which the ordinary person would find a little bit questionable, but which "seem to be nevertheless part of the game". He stated that he is not certain of the extent to which auctions are regulated at common law, but it must have sufficient common law roots as it is a legal transaction. Nor is it clear what type of conduct would be legally permissible at common law, and it is therefore difficult to statutorily intervene in the common law arrangement and take over, because the regulations differ. One would expect the auctioneer to function independently of the arrangement, as a sort of arbiter, but instead the Bill suggests that s/he is part of the bidding.
The Chair stated that there is a problem with auctions and with the RDP houses, as recently revealed in a Special Assignment programme. The programme discovered that poor people who are unable to pay a debt of R20 or R30 would then have their homes sold via summary judgment to settle the debt. The problem here is that these are not necessarily auctions, because it is a mechanism by which others can buy back their houses in the poor communities, but it is rather that persons are able to get a judgment for R20 or R30 and then take people's homes away. This is one of the areas this Committee has to look at.
The process is a problem, but because the auction is the last act in the process the problem is projected onto it, whereas the actual process is a problem. The problem with the RDP houses poses both a legal and moral problem, and it will be dealt with at a later stage. He agreed with Mr Nel that the Bill has not done what it has set out to do with regard to the auctions, and it has been narrowed down in other crimes. A crime currently exists to cover the situation where the person involved becomes induced via Clauses 3 and 4, but Clause 11 aims to deal specifically with the problem as it pertains to auctions.
Adv Masutha stated that this relates to the non-profit area and should be regulated by the Trade and Industry Portfolio Committee. A similar problem was discovered in the Northern Cape where the registered owner of an RDP would die, the house would then devolve to the children, the SARS would place a tax on the house, but no family member would have the necessary funds to pay the tax with the result that they would not be able to claim the house. Thus this whole system seems self-defeating. Thus such technical issues are really causing hardship for people, and the relevant department has to be notified immediately upon discovering such corruption.
The Chair agreed.
Clause 12: Bribery for giving assistance in regard to contracts
The Chair requested clarity on the inclusion of "the fixing of the price" in Clause 12(1)(b).
Mr Nel replied that it referred to the price on the contract for fulfilling that specific work.
The Chair stated that the wording has to be clarified.
Ms S Camerer (NNP) suggested that the provision does not cover acts committed presently, in the past or in future.
The Chair stated that it would be difficult to effect such an amendment because these three acts are so different.
Mr Nel stated that the inclusion of "corruptly" in this provision would also have to be reconsidered.
The Chair agreed.
Mr Mzizi referred to "the fixing of prices" in Clause 11(1)(b), and asked whether it relates to the situation in which X tells Y to tender for a contract and X then takes 10% of whatever Y makes on that contract, as Y would not otherwise have been aware of the contract and has thus been induced by X.
Mr Nel replied that this would be the case when it disadvantages the other contracting party.
The Chair disagreed, because paragraphs 3.14.4 to 3.14.7 in the Explanatory Memorandum on the Bill refer to Clauses 12(4) to (6), yet these have been removed from the Bill.
Mr Nel responded that it has been removed because, during the briefings stage, included a the Committee felt it should be removed and included in a different bill.
Adv Masutha referred to the earlier statement by Ms Camerer regarding the inclusion of all three tenses in Clause 12, and contended that this could be remedied by simply providing for "influenced or having influenced".
Mr Nel replied that he had not problems with this formulation.
The Chair stated that he too had no problems with the wording proposed but suggested that the phrase "personally or on behalf of" be inserted after "gratification" in Clause 12(2), because this has been used consistently throughout the Bill. Similarly, the phrase "to that person or any other person" should be inserted after "gratification" in Clause 12(1).
Ms Camerer referred to paragraph 121(2) of the Canadian Criminal Code, contained the document entitled "Comparative Legislation: Nigeria, Malaysia, Singapore, Hong Kong, Canada, Australia, India, USA, Germany, Lesotho and Kenya", which refers to "express or implied" terms of such contracts, and contended that this might imply that the person has to give valuable consideration directly or indirectly. A similar provision should be included in the Bill to indicate a contract or a term of that contract, so that the provision may cover more ground.
The Chair disagreed with this proposal, because the two provisions deal with different things.
Ms Camerer suggested that the Bill has to go after those who accept bribes as well, and not only those who offer them.
The Chair referred Members back to Clause 10(1), and suggested that "a contract," be included after the phrase "obtain or retain".
Mr Nel replied that the definition of "business" in Clause 1 includes an "undertaking of any kind".
The Chair contended that this does not include a contract.
Mr Nel maintained that it does.
The Chair asked whether it is necessary, when referring to receiving or giving, to on every occasion state "by that person or on his behalf". This has to be considered.
Clause 13: Offence of corruptly using office or position for gratification
The Chair contended that this clause seems similar to Clause 12.
Dr J Delport (DP) questioned whether Clause 13 is not merely the converse of Clause 12, and now deals with the actual reception of the bribe and gratification.
The Chair suggested that Clause 12(1) deals with the giving of a gratification and Clause 12(2) deals with the acceptance of it, and therefore Clause 13 seems to be a more general provision.
Mr Nel informed Members that Clause 13(1) includes the situation in which a prosecution charge is favourably withdrawn.
The Chair stated that this is therefore the same as Clause 6, where a person uses his/her position to obtain a private interest and gratification. It is thus exactly the same as Clause 13, except that it is taken from a different angle. In fact, the only difference is that Clause 13 is a bit simpler.
Mr Mzizi requested clarity on the position should a person use their office to evict another from that person's house, only then to take occupation of that house him-/herself. Would this act itself be one of corruption?
The Chair answered in the affirmative, and stated that it would be covered by the Bill. Paragraph 6 in the document entitled "Summary of Submissions on the Bill" contains that concern raised by the ISS regarding the inclusion of "reasonable doubt". This matter has already been discussed and covered.
The big problem lies with Clause 13(3) because it is incredibly wide, and no linkage is created between the payment and the use of office. Furthermore, the use of "public officer" and "public body" is tautologous and should thus be reformulated, because the latter includes the former. Clause 13(3) is too widely framed and it automatically assumed that the person could only use their interest to benefit their associate, relative or anyone else, and does therefore not consider any lawful motive. It thus effectively forces the person into the witness box. Clause 13(1) is also widely framed, and is then expanded by Clause 13(3), the only difference between the two being that the latter contains the presumption.
Mr Nel replied that Clause 6 deals specifically with a public official, whereas Clause 13 has a more general ambit.
Clause 13 continued
Ms Camerer (NNP) did not feel that the clause was properly structured as it put all the specific offences first and then the general catchall clause at the end.
The Chair responded that there were a lot of overlaps and inputs that had all been thrown together in the clause and the Committee would have to look at it systematically and make some decisions at a later stage. The clause could create problems because of its wideness. It was not like other crimes where one received something, but the mere fact that one was using ones position to obtain a benefit that was criminal.
Mr Nel added that the Nigerian Act was similar to this as any officer who used his position to obtain a benefit was guilty of an offence. The Malaysian Act also made use of presumptions.
The Chair reiterated that the clause would have to be rearranged at some stage. It was no use to do it then as the Committee needed to acquaint themselves with the Bill. He asked if Malaysia was the only country that had this presumption. Mr Nel answered that it was and the Chair commented that Malaysia was not renowned for its constitutionality. He felt that the clause would not remain in the Bill, but asked Mr Nel not to remove it just yet.
He questioned if all the countries that do make use of the provision do it in the same way, i.e. the holding of an office and receiving of gratification as the only elements. Mr Nel answered in the affirmative. The Chair felt that the problem might then be the presumption.
The Chair welcomed Mr Daniel, Chief Clerk in charge of Committees in the Zimbabwean parliament, who was in South Africa to observe the South African system as Zimbabwe was in the process of making reforms to their system.
Clause 14: Corruption relating to sporting events
The Chair noted that a point that Mr Costa had made strongly was that there would be a problem if the clause were made to apply to actual negligence as well. He asked Mr Nel if he had given any thought to that.
Mr Nel replied that he had not given any thought to it but that he could foresee it being difficult and gave the example of the Cronje/Gibbs incident, or horse racing, where it would be difficult to prove that a person was negligent in losing.
The Chair agreed and said that sport was such an indirect science that the intention / willful element should be emphasized, rather than negligence. The other point raised by Mr Costa was to include all participants in the breach. He had used the example of horseracing where the bookie, jockey and all others involved in it should be prosecuted. The Chair recalled that Mr Costa had seemed to be correct but he could not remember specifically what had been said.
Mr Nel referred to the submission by Mr Costa, and although he thought that clause (1)(a) could be included, he felt that (b) was unnecessary as there was already a provision for failing to report.
The Chair asked if failing to report specifically covered this aspect, and felt that it may need to be spelt out. He asked for clarity on (b).
Mr Nel answered that be referred to the giving of a reward for the failure to report.
The Chair asked Mr Nel to work on something, in terms of Mr Costa's submission, and add it to the clause. He believed that the failure to report the facts might need rewording, and what constituted "fact" might need to be spelled out more clearly. Regarding "malpractice / misconduct" he felt that it could be covered by "conduct that poses a threat or undermines any sport". He was not sure if that could be intergrated into clause 14 but asked Mr Nel to look into the possibility.
Mr Mzizi (IFP) raised the issue of gambling.
The Chair responded that it was similar to a sporting event, but it had been separated in the definitions from sport and a specific offence had been created. He did not like the term "for the benefit of another person" as it was used in the other crimes. It was noted that the sporting provision only appears in US legislation.
Mr Nel explained that the clause in the Bill was much wider than the provision in the US and did not follow their model. A new model had been created that was in line with the other clauses in the Bill.
The Chair felt that the words in the US legislation were quite important, as they required that a person have the knowledge that the purpose is to affect a sport. He felt it necessary as a scheme in commerce could be any scheme in commerce and it was possible not to know that it would affect a sporting event. The provision was necessary to ensure that ordinary schemes in commerce were not impeded.
Mr Nel suggested that clause 14 be broken up and sub (c) be made a separate provision. The Chair agreed to the suggestion.
Imam Solomon (ANC) asked for clarity on "schemes in commerce".
Mr Nel responded that bookkeepers and the running of pools etc. would constitute schemes in commerce.
The Chair added that those schemes in commerce are not prohibited but the provision would be devised so that those that affected a sport would be prohibited.
Clause 15: Offence of dealing with, using, holding, receiving or concealing gratification
The Chair asked if the clause referred to accessories who held property on behalf of someone else. He felt the heading should be altered to reflect that.
Mr Nel stated that the clause referred not only to accessories but also to those who, for example, transferred money for someone else.
The Chair responded that the person transferring the money was not the person committing the crime, but someone who was assisting him, so he/she would always be an accessory and the heading should therefore be changed. He noted that there had been no submissions regarding this clause.
Mr Mzizi asked what the difference was between sub (a) and (b).
Mr Nel replied that (b) referred to the physical receipt of gratification while (a) referred to the entering into of an agreement to do something.
The Chair pointed out that clause 15 was also dealt with in Nigerian and Malaysian legislation.
Clause 16: Offences relating to corrupt accepting and giving of gratification
The Chair noted that the verbs used in the clause were different so that between clauses 14, 15 and 16 every offence was covered and he was happy with it.
Clause 17: Additional offences
The Chair remarked that the clause covered the usual offences of attempts, commits etc, however he did not like the heading.
Mr Nel explained that heading had been changed from the original and read out the original.
The Chair asked him to change it back to the original heading. The Police had asked the Committee to criminalise the sale of information and he asked if anything had been done in this regard. He was thinking in particular of the sale of the whereabouts of witnesses who were then murdered.
Mr Nel said that the Police had drafted a rough proposal and had intended to submit it to his office but he had not as yet had an opportunity to look at it.
The Chair asked Mr Nel to add the provision so that the Committee could look at it later. He asked that it be made to apply to all public officials and that it should be made a serious crime.
Clause 18: Intentional obstruction of investigation of an offence
The Chair asked if the word "obstruct" was sufficient.
Mr Nel replied that the word "hinder" was also used.
The Chair asked that the word "hinder" be included. He asked for comment on the suggestion by the ISS.
Mr Nel was of the opinion that the suggestion was already covered.
The Chair asked Mr Nel to make certain that the provision did not only apply during an investigation. He asked if it would be viable to use the ISS's suggestion to make it a different provision.
Mr Nel did not think so as it only covered a part of an offence, rather than an entire offence.
Mr Mzizi was concerned that the provision would be too wide and gave the example of the likelihood of mistakes occurring when a translator translated testimony during an investigation.
Mr Nel said that that would not apply, as there would be no intention on behalf of the translator.
Clause 19: Possession or control of property corruptly acquired by public officer
The Chair explained to the Committee that he had received documentation regarding the clause from Idasa and would be distributing the main document to the Committee. He decided to skip clause 19 for the moment, as it was the most controversial, and discuss it the following day.
Clause 22: Reinstatement of common law crime of bribery
The Chair was of the opinion that the common law was quite clear on the issue of bribery and the provision would be reinstating it. Referring to comments made, he noted that the ISS had been of the opinion that it was not legally tenable to reinstate the common law, however he did not agree and felt that as Parliament could make the law, so to could it make it by reinstating it.
Clause 21: Extraterritorial application of Act and jurisdiction
The Chair stated that there had been no comments on the clause. He asked why it would not be possible to try a person in South Africa when he had been found not guilty of an offence in a country with a corrupt legal system.
Mr Nel clarified that there would only be a bar if committed under the same circumstances in South Africa, and would also be a bar in terms of extradition proceedings, so that a person could not be extradited for that reason.
The Chair asked what the bar would entail.
Mr Nel replied that it would be a bar to further prosecuting a person.
The Chair did not see a problem with that.
MEMORANDUM ON THE OBJECTS OF THE PREVENTION OF CORRUPTION BILL, 2002
1. BACKGROUND TO AND OBJECTS OF BILL
1.1 Since the enactment in 1992 of legislation dealing with corruption, various
proposals have been received relating to the amendment of this legislation.
For example, it has been suggested that the common law crime of bribery be
reinstated and further thatâ€”
(a) the crime of corruption be broadened to cover all agents, public or
(b) the legislation should apply extraterritorially in order to cover any gifts
given or received outside our borders.
It has also been suggested that ''anti-corruption legislation'' should create a
crime when public officials are used or manipulated to commit irregularities.
1.2 Rather than amending the Corruption Act, 1992 (Act No. 94 of 1992),
(hereinafter referred to as the ''current Act''), on a piecemeal basis, the Bill
aims to give effect to recommendations emanating from a total review of the
current legislation. This will contribute to Government's initiatives in
developing an overall anticorruption strategy. The provisions contained in the
Bill follow the trend of modern international legislation, namely the
''unbundling'' of corruption, in terms of which various specific corrupt
actions and corrupt practices are defined and prohibited.
1.3 Following the trend of modern legislation internationally, the Bill envisages
the incorporation and development of a number of different provisions
regarding various types of corrupt practices. Some of the important provisions
of the Bill are highlighted hereunder:
1.3.1 Clause 3(1) creates an offence in respect of any person (which includes
a public officer) who corruptly accepts or agrees to accept any undue
gratification as an inducement to do or not do or reward for doing or
not doing, among others, anything in the performance of his her or her
functions. The word ''gratification'' has been defined to include a wide
range of benefits and avoidance of losses. The sentence proposed for
the offence (clause 3(2)) is in line with comparative legislation. Clause
3(3) provides for the application of a presumption, subject to strict
requirements. The provisions of this presumption, as is the case in
respect of the other presumptions in the Bill, are in line with the
guidelines laid down by the Constitutional Court in recent decisions.
1.3.2 Clause 4(1) creates an offence in respect of any person who corruptly
gives or agrees to give to any person any undue gratification as an
inducement to do or not do or reward for doing or not doing, among
others, anything in the carrying out or performance of his or her duties
1.3.3 Clause 5(1) creates an offence where an agent corruptly accepts or
agrees to accept from any person, for himself or herself or for any
other person, any undue gratification as an inducement to do or not do
or reward for doing or not doing anything. Secondly, clause 5(2)
creates an offence where any person corruptly gives or agrees to give
any gratification to any agent, as an inducement to do or not do or
reward for doing or not doing anything. Clause 5(4) provides for a
maximum penalty of 15 years' imprisonment for a contravention.
1.3.4 Clause 7(1) creates an offence in respect of corrupt practices relating
to tenders. This provision applies in respect of the public service, other
public bodies, private organisations, corporate bodies or any other
organisation or institution. Clause 7(2) prescribes a maximum penalty
of 15 years' imprisonment for any contravention of this provision.
1.3.5 Clause 8 creates the offence of bribery of public officers. It is an
offence for any person to give or agree to give to any public officer any
gratification, or being a public officer, to accept or agree to accept any
gratification, as an inducement to that public officer to perform or not
to perform or a reward for that public officer for having or not having
performed certain prescribed acts. Clause 8(3) prescribes a maximum
penalty of 15 years' imprisonment for this offence.
1.3.6 Clause 9 creates offences in respect of corrupt practices relating to
witnesses. Clause 9(1) provides that it is an offence for any person to
give or agree to give any gratification to any person with the intent to
influence the testimony of a witness in a trial, hearing or other
proceedings, or to influence any person to absent himself or herself
therefrom or to withhold true testimony. Clause 9(2) provides that it is
an offence for any person to accept or agree to accept any gratification
in return for being influenced in testimony in a trial, hearing or other
proceedings, or in return for being influenced to absent himself or
herself therefrom or to withhold true testimony. Clause 9(3) provides
for a maximum penalty of 10 years' imprisonment for this offence.
1.3.7 Clause 10(1) creates an offence in respect of the bribery of foreign
officials. This clause emanates from the Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions
adopted by the OECD Member countries on 21 November 1997.
A penalty of imprisonment not exceeding 15 years is prescribed.
1.3.8 Clause 11 creates the offence of bribery in relation to auctions for
which a maximum penalty of 10 years' imprisonment is prescribed.
1.3.9 Clause 12(1) creates the offence of bribery for giving assistance, etc, in
regard to contracts. A penalty of imprisonment for a period not
exceeding 10 years is prescribed.
1.3.10 Clause 14 creates the offence of corruption in relation to sporting
events. This is a new provision. The object of this provision is to
combat corrupt practices, for example the fixing of sporting events as
recently experienced in cricket.
1.3.11 Clause 16 is a very important provision in that it provides for the
creation of other offences relating to the corrupt accepting and giving
1.3.12 Clause 17 deals with an attempt and conspiracy to commit a crime and
the preparation and abetment relating to the commission of a crime.
1.3.13 Clause 19 provides for the offence of the possession of property
suspected to have been acquired corruptly and in respect of which the
person concerned is unable to give an account.
1.3.14 Clause 21 provides for the extraterritorial application of the Act and
clause 24 provides for the reinstatement of the common law crime of
2. DEPARTMENTS/BODIES/PERSONS CONSULTED
The Department of Public Service and Administration, the Department of Finance, all
Directors of Public Prosecutions, Unit Heads within the National Prosecuting Authority
and members of the Policy Unit of the Department of Justice have been consulted.
3. IMPLICATIONS FOR PROVINCES
4. FINANCIAL IMPLICATIONS FOR STATE
5. PARLIAMENTARY PROCEDURE
The State Law Advisers and the Department of Justice and Constitutional Development
are of the view that this Bill must be dealt with in accordance with the procedure
established by section 75 of the Constitution since it contains no provisions to which the
procedures set out in section 74 or 76 of the Constitution apply.