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South Africa

Anti-Bribery and Corruption Laws in South Africa

South Africa
Sources of lawPrevention and Combating of Corrupt Activities Act No 12 of 2004 (PCCA
Offence 

There is a general offence of corruption, which is broadly defined (s3), as well as certain   specified corrupt activities e.g. offences of corruption relating to foreign public officials, agents, members of the legislative authority, judicial officers, contracts, the procuring and withdrawal     of tenders, as well as sporting events. 

Generally speaking, a person is guilty of an offence if he or she directly or indirectly accepts, agrees to accept or offers to accept a gratification (see footnote 2) from another person, or gives, agrees to give or offers to give a gratification to any other person to his or her benefit, or that of another. The giving or acceptance must be done in order to induce the other party to  act in an improper manner, in the performance of that individual’s duties. 

The underlying principle is that guilt will be determined by intention

The bribe  
Is there a presumption that any advantage was given/received corruptly?  1 Presumption applies in certain instances (s24). Broadly, when a person is charged with an offence of corruption, if the State can show that despite having taken reasonable steps, it was not able with reasonable certainty to link the acceptance or giving of the gratification to any lawful authority or excuse on the part of the person charged, and in the absence of evidence to the contrary which raises reasonable doubt, proof that that person gave or accepted gratification to any other person holding a certain position (as set out in s24) is sufficient evidence that the person gave or accepted the gratification corruptly.
Would facilitation payments be caught? Yes
Would corporate hospitality be caught? Depends on intent
Is there any de minimis? No
Does the bribe have to be monetary? No  2 The PCCA uses the term ‘gratification’ which is broadly defined and includes, amongst others, money, donation, gift, loan, fee, reward, property, or valuable security as well as any valuable consideration or benefit of any kind, including any discount, commission, rebate, bonus, deduction or percentage.
Public officials 
Does the offence only apply to bribing public officials? No
Acts performed outside South Africa 
Can bribery performed outside South Africa be caught?Yes
Does the act also need to be illegal in the foreign country of performance? No
Who can be liable  
South African national? Yes
South African company? Yes
South African partnership (including limited liability partnership)? Yes
Director of South African company?  3 There is no specific provision in the PCCA which deals with personal liability for company management/directors or employees in connection with a corporate bribery issue. However, section 332 of South Africa’s Criminal Procedure Act No 51 of 1977 deals with the prosecution of corporate bodies. In terms of this section, a corporate body can be held liable for the acts of its directors or other servants. If the State alleges that a particular office bearer was responsible for the offence in question, that particular office bearer (be it a director, manager or other employee) may be charged separately or as a second defendant in the case and the State will have to prove that such office bearer was in fact responsible for the offence in question.
South African company if the bribe is committed abroad by its foreign subsidiary?No
Foreign subsidiary of a South African company if the bribe is committed abroad? No
Foreign national / company / partnership if bribe is committed in South Africa? Yes
Foreign national domiciled or “ordinarily resident” in South Africa if bribe is committed outside South Africa? Yes
Foreign company / partnership if bribe is committed abroad? No
Penalties  
Penalties include: 

Penalties for bribery and corruption are set out in s26 of PCCA and depend on the category of offence. 

The penalties in relation to the majority of the offences (including the offences of corruption) are the following, in the case of a sentence to be imposed by: 

  • a High Court, a fine or imprisonment of a period of up to life imprisonment; 
  • a Regional Court, a fine or imprisonment for a period not exceeding 18 years; and 
  • a Magistrates’ Court, a fine or imprisonment for a period not exceeding 5 years. 

In addition to any fine that a court may impose, the court may further impose a fine equal to five times the value of the gratification involved in the offence. 

S28 of PCCA also provides for the endorsement on the Register for Tender Defaulters, which is a register of entities and individuals convicted of acts of corruption relating to contracts and the procurement and withdrawal of tenders, with the consequence  being  that  the  National Treasury may terminate any agreement with such persons. Such persons will also be prevented from doing business with the State for a period of between 5 and 10 years. 4 This register can be found on the National Treasury’s website: www.treasury.gov.za.  

It is a criminal offence for an individual or enterprise not to disclose their endorsement on this register in any subsequent agreement or tender process involving the State.

Defences  
Are there any defences available? No