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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
16 October 2003
PREVENTION OF CORRUPT ACTIVITIES BILL: DELIBERATIONS
Chairperson: Adv J de Lange (ANC)
Prevention of Corrupt Activities Bill Working Document - No 7 (October 2003)
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Prevention of Corrupt Activities Bill Working Document No.5 (May 2003)
The Deputy Director of Public Prosecutions continued going through the amendments made to the latest draft of the Prevention of Corrupt Activities Bill.
Prevention of Corrupt Activities Bill
Adv Gerhard Nel, Deputy Director of Public Prosecutions, continued to take the Committee through the latest working draft of the Bill, starting from Clause 16
Chapter 2: Offences in respect of Corrupt Activities
Part 3: Prohibition in respect of corrupt activities relating to specific matters
Clause 16 Offences in respect of corrupt activities relating to acquisition of private interest in contract, agreement or investment of a public body
Clause 16(1) prohibits a public officer from acquiring or holding a private interest in any contract, agreement or investment emanating from or connected with a public body in which he or she is employed or which is made on account of the public body. Clause 16(2)(b) says that the prohibition does not apply to a public officer whose conditions of employment do not prohibit him or her from acquiring or holding such interest. Sub-clause (c) says that the prohibition does not apply if the officer acquires or holds such interest through a tender process.
The Chair felt that one might acquire such interest through a tender process whilst at the same time the conditions of employment prohibits him from acquiring such interest. He suggested that sub clause (b) should qualify sub-clause (c). He also suggested that one might say that the prohibition does not apply if the officer is not in a position to influence the decision of the person awarding such interest. He also wondered why this clause is not linked to clause 13.
Ms F Chohan-Kota (ANC) said that sub-clause (c) should refer to an 'independent' tender process.
Clause 17 Offences in respect of corrupt activities relating to disclosure of information for gratification
Adv G Nel said that this clause seeks to prevent people from abusing information that they might have obtained in the line of duty.
The Chair said that this offence was suggested by the police mainly to stop police officers from selling information. He noted that this clause does not stop or criminalize whistle blowing unless it was done for gratification. He expressed concern over the fact that the prohibition applies when there has been a violation of a legal duty. He asked if the concept of violation of a legal duty if wide enough to cover all things that they intend to criminalize. He went on to say that the clause means that if one is under no legal duty then he or she is free to disclose the information. He appreciated the fact that it might be difficult to widen the clause but still asked the drafter to check if there is a way of widening it.
Adv Nel said that public officials are not entirely free to disclose information in their possession.
Ms Chohan-Kota felt that the ambit of the clause should not be limited to public officers only. The prohibition should equally apply to private officers even in cases where there is no legal duty per se. As long as the person holds a position of trust, the prohibition should apply.
The Chair said that in the normal course of events a private officer's contract of employment would prohibit such disclosures.
Ms Chohan-Kota observed that independent consultants would not be covered by the clause.
Adv Nel said that the consultant's contract is more likely to prohibit such disclosure. He said that he had no problem with widening the clause so as to prohibit disclosure in breach of trust.
Clause 18 Offences iro corrupt activities relating to acceptance and giving of gratification
Adv Nel said that the clause covers all instances of accepting and giving of gratification. He said one might say that to accept also means demanding the gratification.
Part 4: Other offences
Clause 19 Accessory to or after an offence
The Chair felt that the clause was nicely drafted but wondered if it covers everything.
The clause prohibits dealing in the property or any part thereof which forms part of any gratification in cases wherein the person knows that the property forms part of the gratification. Adv Nel indicated that the circumstances under which a person is deemed to have knowledge are set out in Clause 2.
Ms Chohan-Kota said that the clause seems to impart knowledge on people who might not have such knowledge. She was concerned that the clause might have serious implications for married women. Married women are more likely to argue that they had no actual knowledge of the facts and this would not be enough for the purposes of this clause.
The Chair indicated that there is a legal principle that protects married women. Married women are not expected to give evidence against their husbands.
Ms Chohan-Kota said that the problem arises when the woman has been charged.
The Chair said that if, for example, the husband comes home with a large sum of money, the wife should be suspicious and seek to know where the money comes from.
Clause 20 Intentional interference with, hindering or obstruction of investigation of offence
The Chair asked if this clause does not overlap with Clause 9.
Adv Nel said that the difference between the two is that this clause does not refer to gratification
Clause 21 Attempt, conspiracy and inducing another person to commit offence
The Chair asked the drafter to check if the is no need to include threats.
Clause 21A Accused person may not be charged on the same facts and circumstances
The clause allows for a charge on several offences - if by reason of any uncertainty as to the facts which can be proved or for any other reason - it is doubtful which of the several offences is constituted by the facts which can be proved. However, one might not be found guilty of all the offences. Adv Nel said that this is a long standing principle of common law and that our courts have always respected it.
The Chair said he would be happy to look into the principle. The main issue is that Parliament passes overlapping offences and one wonders what the real intention of doing this is.
Chapter 3 Presumptions and Defences
Clause 22 Presumptions
The Chair said that the reference in Clause 22(1) to Chapter 3 should be to Chapter 2. He said that the problem with the presumption is that it is applicable to all offences in Chapter 2. It would be preferable to specify the offences to which the presumption applies. At the same time he felt that the crime relating to contract would not fall under the presumption. He asked if it is not possible to create a separate presumption for such crime.
Ms Chohan-Kota said that she could not understand the presumption. Once it has been proved that a person has accepted or agreed to accept a gratification, then there is a complete crime and therefore no need for the presumption.
The Chair said that the presumption would help the prosecution from having to prove the other elements of the crime. He said that a motive is different from intention and that a motive has a particular legal meaning.
Ms Chohan-Kota said that reference to a lawful motive seeks to show that the gratification was received corruptly.
The Chair said that one is not really concerned with motive but objective justification for the gratification.
Clause 22(2) creates another presumption 'without derogating from the provisions of subsection (1). The Chair wondered if the clause should open with the words 'without derogating from the provisions of subsection (1). He felt that one could always rely on the presumption is sub-clause (1). He thought that those words are not necessary.
Clause 22(3) also creates another presumption. The Chair asked if one needs sub-clause (3) since there is already a presumption in clause (1).
Adv Nel said that the intention was to cover instances that are not covered in sub-clause (1).
Ms Chohan-Kota said that the sub-clause covers instances where there has been no giving or acceptance of a gratification. The clause is concerned with the making of a decision that might enrich. It is important to create a presumption which would apply even where there is no offer or acceptance of gratification.
The Chair felt that the phrase "or anything whatsoever" in Clause 22(1)(a) is wide enough to cover what sub-clause (3) seeks to cover. That sub-clause only rewrites sub-clause (1) and adds nothing new. It does not even say what the state has to prove for it to be applicable except that the state should show that despite having taken reasonable steps, it was not able with reasonable certainty to link the acceptance to any lawful motive. The Chair stressed the need to link presumptions to crime.
Ms Chohan-Kota said that the state would have to prove, amongst others, monetary gain and that correct procedures were not followed.
Ms S Camerer (DA) noted that the clause has confusing numbers in that under 22(1) there is reference to (a) to (c) and also reference to (a) to (e). She suggested that some of the numbering be changed to (aa) to (ee).
Clause 23 Defences
Basically the clause says that it is not a defence to say that one did not do what he or she was asked to do. The Chair indicated that once one has been given money to perform in a certain way there is a crime of bribery. He asked the drafter to specify the crimes to which this clause would apply. He cautioned against treating this clause as a presumption.
Clause 24 Penalties
Clause 24(1)(a)(ii) marks an increase in the jurisdiction of a regional court with respect to sentences. The clause allows a regional court to sentence a person to a period not exceeding 25 years. Sub-clause (iii) increases the jurisdiction of the Magistrates courts to five years. It is important to note that the penalties only apply to offences that would be specified in the clause. Sub-clause (b) limits the jurisdiction of the high court to 15 years.
Ms Camerer asked why the regional court is allowed to impose a sentence of 25 years whilst a high court is limited to 15 years.
Adv Nel said that the limits apply to different crimes. It does not matter what other laws say with regard to sentences. The clause gives the much-needed flexibility in that where there is a need for a stiff sentence one could still go to a regional court and not a high court.
The Chair suggested that the jurisdiction of regional courts should be limited to 18 years.
Chapter 4: Penalties and Related Matters
Clause 24A:Endorsement of Register
The Chair proposed that 24A(1)(c) be deleted since its provisions can be covered under par (d). Also the phrase "or enterprise" should be inserted after "person" and before "so convicted" in 24A(1)(d)(i) and (ii). He noted that 24A(1) contains some aspects dealing with the sentence that could be imposed and that could not be postponed as contemplated in 24A(2). The only thing a person can do in such circumstances is to appeal should s/he wish to appeal against the order of the Court. He proposed that 24A(3) should be rewritten along the lines: " Whereâ€¦must forthwith forward the court order to Registrar of the Register and the Registrar mustâ€¦".
He said that it is important that the Bill should clearly stipulate what would be the legal effect of registering such endorsement in the Register of the Registrar and what would become of that after the endorsement has been removed.
He noted that the word "may" should only apply in relation to 24A(4)(i) while in other subparagraphs the word "must" should be used. Plus the phrase "not be less than five years and" should be inserted after "Providedâ€¦such period may" in 24A(4)(i). Thus this clause would have to be wholly rewritten. In so doing it should be borne in mind that this clause contains compulsory proviso and thus the Board cannot vary or rescind restrictions as it deems fit as proposed in 24A(7).
The Chair said for the provisions of this clause to be constitutional, there should be some form of knowledge or participation that should be attributed to a person in relation to the commission of the offence referred in this clause. It should be noted that the provisions of 24A(4) would not apply during an appeal. He wondered what would be the situation where the State Tender Board is a party to a dispute under these provisions since they are the ones given the responsibility to do the endorsement. He then asked if it would not be proper if such a responsibility could be given to the Registrar of Register.
Adv G Nel acknowledged the concerns raised by the Chair but noted that it should be borne in mind that the Registrar of Register is also under the control of the State Tender Board.
The Chair said that this is a very useful clause and as such it would have to be tightened up.
Chapter 5: Central Corruption Register
Clause 26C: Powers, duties and functions of Register
The Chair proposed that the phrase "or any other law" be inserted after "or the Board" in 26(2)(c).
Clause 26D: Regulations pertaining to the Register
The Chair noted that since the Minister has the power to appoint the Registrar anyway, the provisions of 28(1)(a) are redundant and should therefore be removed. He further noted that a provision requiring the information contained in the Register of the Registrar to be open to the public be inserted in the Bill. Although a regulation controlling the public access to such information may be regulated, however it should not be confidential. He further noted that since this Chapter has financial implication then a letter should be send to the Minister of Finance and request him to comment on this provision. The Minister should also be asked to comment whether this Chapter should be made part of this legislation or should be in another legislation.
Chapter 6: Miscellaneous Matters
Clause 28: Extraterritorial jurisdiction
Mr J Jeffery (ANC) noted that the provisions of 28(1)(b) are misplaced. The provision relates to acts of terrorism and not to those of corruption and as such it should be deleted. The Chair agreed.
Adv Nel, however, disagreed noting that the importance of this provision lies in the fact that where an act is not committed in our territory but on a South African ship, then a jurisdiction could be established in terms of 28(1)(b) provisions.
The Chair noted that the concerns raised by Adv Nel would be covered under the provisions of 28(1) which clearly state that it does not matter whether the act was committed wholly outside the Republic but the court would have jurisdiction on the matter. He proposed that the provisions of 28(1)(c) should also be deleted since they also relate to acts of terrorism and not corruption.
The meeting was adjourned.