Prevention of Corrupt Activities Bill: adoption

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
24 November 2003
PREVENTION OF CORRUPT ACTIVITIES BILL: ADOPTION

Chairperson: Adv J H de Lange (ANC)

Document handed out:
Prevention and Combating of Corrupt Activities Bill Working Document No. 10 (Nov 2003)[not available]
Prevention and Combating of Corrupt Activities Bill as voted on
Prevention of Corrupt Activities Bill [B19-2002]
Committee Report on the Bill

SUMMARY
The Committee went through the Working Document No 10 of the Bill, clause by clause, and made several amendments . It thereafter passed the Bill with the amendments, together with a Resolution on the excised Clause 21A of the Bill. The Bill is to be debated in the National Assembly on 27 November 2003.

MINUTES
Preamble
The Chair said that it is important to note that the formulation of the third paragraph is in line with the UN Convention and he thereafter asked the department to insert a comma after "governments" and before "and provide a breeding ground". He noted the importance of paragraph six and said that it should be borne in mind that this Bill does not deal only with the public sector but also with the private sector as well. He acknowledged the government's responsibility in the fight against corruption but noted that the fight against corruption is broader than government. Hence paragraph nine is requiring the government to fight corruption in conjunction with organs of civil society outside the public sector.

Adv G Nel (Department of Justice: Legal Drafter) proposed that the phrase "and related corrupt activities" be inserted after "prevent(ion) and combat(ing of) corruption" in paragraphs seven, eight and nine.

Mr S Swart (ACDP) proposed that after "States" in par nine a comma should be inserted and the phrase"and that they must cooperate with each other" be substituted by "requiring mutual co-operation with each other".

The Chair requested the drafters to rewrite the provisions of paragraph eleven and proposed the following "AND WHEREAS the Southern African Development Community Protocol against Corruption, adopted on 14 August 2001 in Malawi, reaffirmed the need to eliminate the scourge of corruption through the adoption of effective preventive and deterrent measures and by strictly enforcing legislation against all types of corruption".

Chapter 1: DEFINITIONS AND INTERPRETATION
Clause 1: Definitions
(x) Inducement
The Chair asked the department to reinsert "or cause" before "a person" and remove "or" before "threaten".

Ms S Camerer (DA) was of the view that "inducement" is a noun and thus need not necessarily be defined but "induce" be the word that is defined and "inducement" be said to have a corresponding meaning to "induce".

The Chair proposed that "assist" be removed from the definition of "induce".

(xi) Judicial Officer
The Chair noted that notwithstanding Adv Nel contrary view and persuasion, he is still of the view that International Criminal Court judges referred to in par (b) are not South African officials and thus do not fall within South African jurisdiction. Further since they also enjoy a diplomatic immunity it would be improper to suggest that they could be held accountable under South African laws and therefore he proposed that par (b) be deleted. The sequence of these paragraphs would have to be reordered and the provisions of paragraphs (m) and (p) be rewritten to be in line with the new sequence.

Adv Nel proposed that the provisions of par (m) should simply read "where applicable any assessor who assists a judicial officer".

(xvii) Private sector
Ms Camerer was of the view that the definition of "business" is widely defined to include words such as "trade and profession" and therefore there is no necessity to mentioned these words in par (a) since such has the effect of limiting this paragraph.

Chapter 2: Offences in respect of corrupt activities
Part 1: General offence of corruption
Clause 3: General offence of corruption
The Chair proposed that the option noted in par (b)(i) should be used to substitute "exercise, carrying out or performance of any person's powers, duties or functions" throughout the Bill in every clause or provision that these words appear.

The Committee accepted the proposal.

Part 2: Offences in respect of corrupt activities relating to specific persons
Clauses 4 to 9
The Chair reminded the Department to substitute "exercise, carrying out or performance of any person's powers, duties or functions" with the words noted in the option to Clause 3(b)(i).

Part 3: Offences in respect of corrupt…relating to receiving or offering of unauthorised gratification
Clause 10: Offences of receiving or…gratification by or to party to an employment relationship
The Chair noted that this is a new kind of an offence which is sui generis intended to replace the common law offence of bribery which was repealed in 1992 by the Corruption Act. Although they wanted to bring back the common law offence of bribery into this Bill, however the problem with that offence is that it only affected civil servants and public officials and not the private sector. Based on that and due to the fact that they wanted bribery to be applicable not only to the civil service but to every employment relationship where an undue gratification is received. The Committee thus felt that it is necessary to broaden the application of this clause to also cover employment relationship in the private sector and thus hope that all the bribery precedents would also be applicable for this offence.

Part 4: Offences in respect of corrupt activities relating to specific matters
The Chair noted that Clauses 12 and 13 are the only clauses that have a link to the defaulters clause in this Bill.

Part 5: Miscellaneous offences…to possible conflict of interest and other unacceptable conduct
Clause 17: Offences in…private interest in contract, agreement or investment of public body
The Chair noted that this is a very important clause since it aims at curbing one putting oneself in a position where one's interest might conflict due to the possible advantage that one might stand to benefit as a result of the transaction.

Ms Camerer asked whether this clause also covers the question of nepotism.

The Chair replied that nepotism per se is not a crime on its own unless it also involves an act of corruption, one cannot criminalise it.

Mr Swart noted that the department should correct the reference to "Subsection (2)" in subclause (2) to "Subsection (1).

Chapter 3: MATTERS RELATING TO THE OFFENCES
Clause 21A: Accused person may not be charged on same facts and circumstances
This clause has been removed. The Chair explained that it is not quite clear what the position in law is on this, especially taking into account the provision of Section 336 of the Criminal Procedure Act, which stipulates that a person is not liable to more than one punishment for the act or omission constituting an offence, unless the contrary intention appears in the legislation. Thus in order to ensure that one is not charged and convicted of committing different offences arising from the same facts and circumstances, they felt it was necessary that a resolution be drafted. The rationale behind the resolution is to request the department to research whether this Bill, without Clause 21A, would not be misinterpreted as the legislature having provided otherwise as indicated in S336 of the CPA.

The resolution was read and the Committee unanimously accepted it.

Chapter 4: PRESUMPTIONS AND DEFENCES
Clause 24: Presumption
The Chair felt that it is not necessary to create a presumption if one is not going to be required to prove that which is in the presumption is not part of a crime. He thus proposed that "Parts 3 and 4" referred to in subclause (1) be deleted as they are irrelevant to this provision.

Clause 25: Defences
The Chair proposed that Clause 20, which deals with accessory to or after an offence, also be included in this provision, together with Clause 21.

Chapter 5: PENALTIES AND RELATED MATTERS
Clause 26: Penalties
The Chair proposed that the "one year period" in subclause (1)(c) be substituted by a "three year period".

Clause 28: Endorsement of Register
The Chair proposed that the reference to "Section 26(1)" in subclause (1) should simply be "Section 26".

Chapter 7: MISCELLANOUS MATTERS
Clause 34: Duty to report corrupt transactions
The Chair noted that the drafters should insert a comma after "Part 1, 2, 3" in 34(1)(a) and that the amount mentioned in par (b) be changed back to "R100 000 or more".

Adv Nel proposed that "knowledge or" be inserted after "must report such" and "cause such" in 34(1)(b).

The Chair noted that "and also a town clerk" in 34(4)(b) be removed since a town clerk has since been replaced by a municipal manager under the provisions of the Municipal Structures Act. He further proposed that "or equivalent officer" and a comma be inserted after "Chief Executive Officer" in par (e).

Ms F Chohan-Khota (ANC) proposed that "statutory" in par (e) be removed and "whether established by legislation, contract or any other legal means" be inserted after "or any other institution or organisation".

Adv Nel agreed with the proposal and also proposed that "a" in par (e) be substituted by "any".

The Chair proposed that "or any statutory institution or organisation" be deleted in par (g) and "Bank or any other financial institution" be inserted instead. He further proposed that the provisions of par (h) be deleted in toto and a new provision thus "any partner in a partnership" be inserted to substitute this provision. He also proposed that the phrase "institution, association or organisation" be inserted in par (i) after "an employer" and also be included in par (j) since it is a catch-all paragraph.

Ms Chohan-Khota was of the view that those persons who create auditing statements in the books of entities, such as companies and departments, should also be required to report if they are of the opinion that a possibility exist of a crime involving an amount of R100 000 to have been committed. This was supported by Mr L Landers (ANC).

The Chair in acknowledging the concern proposed that Adv Nel should research this matter and thereafter raised the issue with the NCOP Select Committee on Security and Constitutional Affairs, as the Bill is going to be referred to that House. Therefore he has to inform them this Committee resolved that they should look at this auditors issue together with that of the Registars, which currently falls under the provisions of par (h).

Clause 37: Short title and commencement
The Chair proposed that "and combating" be inserted after "Prevention" in the short title of the Bill.

SCHEDULE
Law repealed or amended by Section 36
The Chair proposed that the following "Part 1 to 4 or Sections 17 or 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004" be added to the Criminal Law Amendment Act 51 of 1997 in the Schedule. Clause 18 should be added to the Prevention of Organised Crime Act 121 of 1998 in the Schedule.

He asked Adv Nel to discuss the possibility of including Bail provisions to this Schedule with the NCOP Select Committee on Security and Constitutional Affairs.

Voting on the Bill
He thereafter went through the Bill, clause by clause and also read the Committee's Report on the Bill.

The ANC and ACDP accepted both the Bill and the Report.

Ms Camerer noted that the DA agrees with this Bill, in principle, but since its caucus committee has not yet met formally to discuss the Bill to give her a mandate on behalf of the party, she would abstain from voting.

The meeting was adjourned.