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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
15 May 2003
PREVENTION OF CORRUPTION BILL: DISCUSSION
Chairperson: Adv. J de Lange
Documents handed out
Working Draft No 4 (January 2003) - Prevention of Corruption Bill
Tabled version of Bill: Prevention of Corruption Bill: [B19-2002]
New Clauses 3 and 4
The drafters presented the New Clauses 3 and 4 which as instructed by the Chairperson removes the word "corruptly" and instead incorporates the various definitions of corruptly into these two general clauses. A second option condenses Clauses 3 and 4, the general offences of corruptly accepting and giving a gratification, into one clause.
Some additional changes were proposed to these clauses and the Committee will reconvene after the recess. Clauses 6, 6A and 6B will be redrafted using the same approach as that contained in New Clauses 3 and 4 - with a view to extending this throughout the Bill.
Opinion by the State Law Advisors concerning blacklisting measures
Adv. de Lange noted that the opinion by the State Law advisors concerning blacklisting measures taken against companies who contravene tender procedures had been furnished to the Committee. The opinion concluded that it would not be unconstitutional to blacklist individuals or companies who were in contravention of the tender procedures. However, in order to blacklist such individuals the Administrative Justice Act would have to apply and that meant that the principles of natural justice had to be followed.
Adv. de Lange pointed out that he did not have problems with the legality of the conclusion reached by the State Law advisors but he was concerned about the administrative process that had to be followed to blacklist an individual or a company. He did not understand why there had to be an administrative intervention after a person had been found guilty of an offence and be given a hearing on why s/he should be blacklisted. He conceded that once a person had been found guilty of contravening the tender procedures s/he must be automatically blacklisted.
Adv. de Lange asked Mr J de Lange (legislative drafter) to bring the legal experts who drafted this opinion to the next meeting on the Bill so that the Committee would have an opportunity to engage with them.
New Clause 3 and 4 of the Prevention of Corruption Bill
The Committee met the previous week for an unofficial meeting to refresh themselves on the Prevention of Corruption Bill as they had not deliberated on the Bill since the last session in 2002. At the refresher meeting, the Chair asked the drafters, Mr Gerhard Nel and Ms Anthea Gordon, to redraft the two general clauses in the Bill so that the word "corruptly" is not used overtly but instead the definitions of "corruptly" are directly build into these clauses. The two general clauses, Clauses 3 and 4, deal with the general offences of corruptly accepting gratification and corruptly giving gratification. [PMG did not minute that meeting].
At this meeting these redrafts were presented to the Committee. This was with a view to extending this approach to the whole Bill. The specific clauses dealing with the different categories in Clause 6, 6A and 6B will be tackled next.
Mr Gerhard Nel (Legislative drafter) pointed out that Clause 3(a) dealt with the offence of inducement; Clause 3(b) was dealing any person who accept gratification as a reward and Clause 3(c) was dealing with any person contemplated in the follow-up specific clauses. However, he noted that it was very difficult to capture the omissions in the aforementioned sub-clauses and advised the Committee to caution against creating long general clauses.
Adv de Lange noted that the Committee would like to see a definition of the word "corruptly" within the context of Clauses 3 and 4 and a creation of a third option in addition to the crimes of accepting and giving a gratification, with a general prohibition in it. The problem with most of the crimes contained in the new clauses was that they had been imported from other countries and hence there was a need to create a uniform thinking in that regard.
Ms Camerer (DA) asked if the word "corruptly" in Clauses 3 and 4 was going to be defined elsewhere in the Act as she was concerned that a lack of a clear definition could lead to a further test which might be very difficult to prove.
Ms Kota (the Acting Chair) held that Ms Camerer's contention about Clauses 3 and 4, would form part of the instructions to Mr Nel to further redraft Clauses 3 and 4.
Mr Gerhard made reference to Clause 4 which contained the general offence of unlawful giving a bribe. He pointed out that the omissions in respect of that offence had been captured in sub-Clauses 4(a)(i), (ii) & (iii).
The Chair, Adv de Lange, asked if it were possible to turn some of the crimes contained in Clauses 3 and 4 into a general prohibition.
Mr Nel's reply was that there were very few clauses in which a general prohibition could form part of the crime.
Ms Kota (the Acting Chairperson) asked if Mr Nel could consider the instruction as pointed out by Adv. de Lange, and assess if it was possible to change some of the specific crimes contained in these clauses into general prohibitions.
It was agreed that the Committee would wait for the drafters' re-drafts as instructed by the Committee.
The meeting was adjourned