Prevention of Corrupt Activities Bill: deliberations

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Justice and Correctional Services

11 August 2003
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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
12 August 2003
PREVENTION OF CORRUPT ACTIVITIES BILL: DELIBERATIONS

Chairperson:
Adv J H de Lange (ANC)

Relevant documents:
Prevention of Corruption Bill Working Document No.4 (January 2003)
Prevention of Corruption Bill Working Document No.5 (May 2003)
Definition amendments (see Appendix)

SUMMARY
The Committee was given the Fifth Draft of the Bill which has been renamed Prevention of Corrupt Activities Bill. They dealt with those definitions of the Bill which have a direct impact on the prohibitions stipulated in Chapter 2 of the Bill. For comparison, the Committee looked at how these concepts are used in international legal instruments.

The Chair said that some of the clauses in the new draft of the Bill still need to be changed. He suggested the necessary changes that need to be made. He cautioned against creating new offences that make unnecessary repetition of the definition of corruption.

MINUTES

The Chair asked Mr G Nel, National Prosecution Authority, to explain the changes that have been made to the Bill.

Mr Nel noted that the Department has changed the name of the Bill from Prevention of Corruption Bill to Prevention of Corrupt Activities Bill plus it has changed the structure of the Bill. He noted that the second reference to Part 2 in Chapter 2 should be changed to be Part 3, since it was erroneously recorded as such. He further noted that they have left out "corruptly" in the definition of the Bill.

Chapter 1: Definitions and Interpretation
Clause 1: Definition
The Chair said that in order for the Committee to clearly understand the acts that the Bill wants to prohibit it is important that it should go through the definition clause thoroughly. He noted that:
- The word "includes" in paragraph (x) must be understood to mean that "gratification" is not only limited to these instances. This therefore means that if the Court feels that something falling under gratification was left out in the definition then it can add it.
- Since the definition of "inducement" in paragraph (xi) is only needed when one wants to do away with certain parts of the prohibition, it is still debatable whether it should form part of the Bill.
- The definition of "undue gratification" in paragraph (xxvi) is not necessarily needed as it only refers to a gratification, which has been obtained in an improper manner. Therefore since it refers to something to which one was not entitled, then it simply refers to corruption and nothing less.

Chapter 2: Prohibitions in respect of corrupt activities
The Chair noted that the definitions that the Committee dealt with above would have direct implication on the prohibitions noted in this chapter.

Clause 3 General offences in respect of corrupt activities
Ms S Camerer (DA) noted that the word "gratification" includes benefits, which might either be by way of reward or inducement. Based on that she could not see any reason why "inducement" should be separately defined.

Mr Nel agreed that the definition of inducement is not necessary, since everyone know what this concept means.

The problem the Chair had with the clause is that it contained concepts which lead to too many definitions interpreted repeatedly on the same offence. This is unacceptable as it might result in some being convicted on different crimes committed on the same offence. He requested Mr Nel to point out to the Committee recent international legislation that contain "gratification", since this might assist them in getting an understanding of how this concept has been used in other countries.

Mr Nel referred the Committee to the Hong Kong legislation, which he said bears both the concept of "inducement and reward" in their definition of gratification and also to the Nigerian legislation.

The Chair said that he does not have a problem whether the department decides to use the concept of "gratification", "inducement" or corruptly" in the Bill. But, there would be one if the concepts employed tend to repeat the same offence as that would lead to interpretation problems.

Ms F Chohan-Khota (ANC) noted that the problem would be solved if the Committee follow Mr Nel's proposal and thus delete the definition of "inducement". This would result in one definition being employed, namely that of "gratification", which is adequately defined as a reward or a benefit.

The Chair wanted to know what the department meant by "improper purpose" in paragraph (a).

Mr Nel said that this concept was directly taken from one of the definitions of "corruptly" noted in the option 3 of Prevention of Corruption Bill, Working Document No.4 (January 2003). They felt that it was necessary to have something about unlawfulness in the Bill. In option 3 "corruptly" is defined as acting with an improper purpose, personally or by influencing another person to violate a legal duty.

The Chair asked if this should then be made part of the definition of gratification.

Ms Chohan-Khota felt that it would not be proper to have an unlawfulness element in the definition of gratification.

Adv M Masutha (ANC) said that it is important for the Committee to clearly define the meaning of "improper conduct" if it intends to employ it in the Bill.

The Chair then made the following proposal to the provisions of Chapter 2 of the Bill, especially Clause 3: "Any person who, directly or indirectly, personally or by influencing another person to act in a manner:-

  1. that adversely affects, or could adversely affect, the honest performance of an person's functions; or
  2. that amounts to:-
  1. a dishonest or inappropriate partiality performance;
  2. a breach of trust; or
  3. the misuse of information or material acquired in the course of the performance of a function or duty;
  1. designed to achieve an unjustified result

accepts or agree or offer to accept, or give or agree or offer to give to any person gratification or reward, whether for himself or herself or for the benefit of another person to do or not to do anything or as a reward for having done or not having done anything, is guilt of an offence."

He said that if this provision is formulated in this way then it would cover a wide range of things, since it spells out clearly what the elements of the offence are, the unlawfulness requirement and intention element. He further noted that having this provision would then mean that only the definition of gratification becomes necessary.


Ms Chohan-Khota said that it is important that paragraph (c) of the formulation takes into account the fact that there are different prohibitions stipulated in other clauses of Chapter 3.

The Chair acknowledged that and then proposed that Mr Nel and Ms A Gordon (Department of Justice) and himself would refine the proposal accordingly so as to take into account those sections prohibited in other clauses.

Afternoon session
The Chairperson started the meeting by noting that they had got up to Clause 3. He said that having read the Bill, he could see that there were issues that need to be clarified in the Bill.

Adv G Nel (Deputy Director: National Prosecutions) handed out a document providing for new definitions of terms and reconstruction of some clauses in the Bill (see Appendix). He noted that the reference to reward in the definition of gratification should be deleted.

Clause 3 General offences in respect of corrupt activities (cont)
The Chair felt that the redrafted clause was still inadequate. He suggested that the clause should read as follows:

3. Any person who, directly or indirectly accepts or agrees or offers to accept or gives or offers to give to any other person any gratification or reward, whether for himself or herself or for the benefit of another person, by personally or by influencing another person to act in a manner-

  1. that adversely affects, or could adversely affect, the honest performance of a person's functions; or
  2. that amounts to a dishonest or partial performance, a breach of trust; or the misuse of information or material acquired in the course of the performance of a function or duty; or
  3. designed to achieve an unjustified result,

is guilty of an offence.


The Chairperson said that the word 'reward' should be defined to mean any gratification for having done or not done anything. He felt that the above clause offers a good and more descriptive definition of the proscription. In the past there was a problem with the use of the word 'inducement'. The word does not say much since one can be induced to do something very much legal and therefore there would be no offence committed. He felt that inducement is encompassed in Clause 3 and therefore there is no need to make use of the word itself.

Following a suggestion from Ms S Camerer (DA) who felt that the word 'induce' should be used in the clause, the Chair noted that even Adv Nel indicated in the Bill itself that there is no need for the use of the word 'induce'. He said that much of the problem centred on the fact that there is no legislation that defines the word. The Chair expressed reservations about leaving it to judges to define the word. He also said that another problem with the use of the word is that one would have to include adjectives so as to describe the unlawfulness and intention elements of the offence since the word does not in itself cover the elements

Ms Camerer felt that the unlawfulness element of the offence is covered by subclauses (a) to and inclusive of (c). The words 'gratification'; 'reward' and 'inducement' are used interchangeably. The word 'induce' has been used in the past in South African law. She referred members to footnote 11 of the Bill in support of her contention.

The Chairperson pointed out that part of the footnote indicates that there is no definition of the word in South African law. He said that Ms Camerer should approach the matter by asking 'what is left in subclauses (a) to and inclusive of (c)'.

Ms Camerer suggested that one may perhaps make reference to inducement under (g) in the definition of gratification.

The Chair summed up the issue by saying that one should note that a person may be induced to do something without the prospect of gratification. He also said that one corrupts another person for reward. This was in direct contrast to Ms Camerer's views. He said that the concept of corruption should be broken down as in Australia and linked to specific things.

Clause 4 Other offences
The Chair said that the redrafted clause should read as follows:

4 Any person who, directly or indirectly acts in contravention of any prohibition referred to in sections……for any gratification or reward, whether for himself or herself or for the benefit of another person, by personally or by influencing another person to act in a manner-

  1. that adversely affects, or could adversely affect, the honest performance of a person's functions; or
  2. that amounts to a dishonest or partial performance, a breach of trust; or the misuse of information or material acquired in the course of the performance of a function or duty; or
  3. designed to achieve an unjustified result,

is guilty of an offence.

Adv Nel reminded members that in some instances the element of wrongfulness is specified in the definition of the proscription itself. Consequently there would be no need to insert clauses making special reference to the unlawfulness element.

Clause 5 Prohibitions in respect of corrupt activities relating to public officers
The Chair said that the clause should read as follows:

5 Any public officer who, directly or indirectly, accepts or agree or offer to accept any gratification or reward, whether for himself or herself or for the benefit of another person, by personally influencing another person to act in a manner-

  1. that adversely affects, or could adversely affect, the honest performance of a person's functions; or
  2. that amounts to a dishonest or partial performance, a breach of trust; or the misuse of information or material acquired in the course of the performance of a function or duty; or
  3. designed to achieve an unjustified result,

is guilty of an offence.


The Chairperson also said that subclauses 2 and 3 should fall away as they are already included in (a) to and inclusive of (c). Further one might also make a subclause prohibiting the acts specified in Clause 5(1)(a).

Clause 6 Prohibitions in respect of corrupt activities by and against persons in private sector
The Chair said that this clause should say that 'any person, in the course of business in the private sector' does any of the things listed in the clause shall be guilty of an offence.

He had no problems with the provisions as they are. His main concern was that specific crimes created repeat the definition of corruption in themselves.

Adv. Nel said that Lesotho and Namibia had Bills setting out the general offence of accepting and giving a bribe. Later on they had changed their Bill and followed the Hong Kong and Nigerian example which reflect specific crimes. Some other SADC countries are going towards the same direction. One needs a provision relating to active and passive corruption and a provision governing the private sector.

Clause 7 Prohibitions in respect of corrupt activities relating to agents
This clause remains the same.

The meeting was adjourned.

Appendix
DEFINITION AMENDMENTS

corruptly"
means acting personally or by influencing another person to act in a manner-

(a) that adversely affects, or could adversely affect, the honest performance of a persons functions; or
(b that amounts to-
(i) a dishonest or inappropriate partiality performance:
(ii) a breach of trust; or
(iii) the misuse of information or material acquired in the course of the performance of
a function or duty;
(c) designed to achieve an unjustified result;

"gratification" includes-

(a) money, whether in cash or otherwise;
(b) any donation, gift, loan, fee, reward, valuable security property or interest in property of anv description, whether movable or immovable, or any other similar advantage;
(c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage:
(d) any office, status, honour, employment, contract of employment or services, any agreement to give employment or render services in any capacity and residential or holiday accommodation;
(e) any payment, release, discharge or liquidation of any loan, obligation or other liability. whether in whole or in part;
(f) any forbearance to demand any money or money's worth or vaIuable thing:
(g) any other service or favour or advantage of any description. including protection from any penalty or disability incurred or apprehended or from anv action or proceedings of a disciplinary, civil or criminal nature. whether or not alreadv instituted. and includes the exercise or the forbearance from the exercise of any right or any official power or duty:
any right or privilege; or
(i) any real or pretended aid, vote, consent, influence or abstention from voting:
(j) any valuable consideration or benefit of any kind. including any discount. commission. rebate, bonus, deduction or percentage;


General offences in respect of corrupt activities

3. Any person who, directly or indirectly, personally or by influencing another person to act in a manner -
(a) that adversely affects, or could adversely affect, the honest performance of a persons functions; or
(b) that amounts to a dishonest or inappropriate partiality performance. a breach of trust: or the misuse of information or material acquired in the course of the performance of a function or duty; or
(c) designed to achieve an unjustified result,

accepts or agrees or offers to accept or gives or agrees or offers to give to any other person any gratification or reward, whether for himself or herself or for the benefit of another person to do or not to do anything or as a reward for having done or not having done anything, is guilty of an offence.

Other offences

4. Any person who, directly or indirectly. personally or by influencing another person to act in a manner-

(a) that adversely affects, or could adversely affect, the honest performance of a person's functions; or
(b) that amounts to a dishonest or inappropriate partiality performance. a breach of trust: or the misuse of information or material acquired in the course of the performance of a function or duty; or
(c) designed to achieve an unjustified result,

in contravention of any prohibition referred to in sections…….. for any gratification or reward, whether for himself or herself or for the benefit of another person to do or not to do anything or as a reward for having done or not having done anything, is guilty of an offence.

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