Anti-Bribery and Corruption Laws in South Africa
jurisdiction
| Sources of law | Prevention and Combating of Corrupt Activities Act (PCCA) |
|---|---|
| Offence | The Prevention and Combating of Corrupt Activities Act (PCCA) creates a broad general offence of corruption, which applies to any person in both the public and private sector. In essence, corruption occurs where any person directly or indirectly gives, receives, offers, or accepts gratification to act in a manner that is illegal, dishonest, unauthorised, biased, or unethical, or to abuse a position of authority, trust, or power. PCCA also sets out specific corruption offences relating to roles and situations. These include corruption involving public officers, foreign public officials, agents, members of legislative bodies, judicial officers, and prosecutors. Further specific offences address corruption in tendering and procurement processes, contracts, auctions, employment relationships, sporting events, and gambling, recognising areas that are especially vulnerable to improper influence. In addition, PCCA criminalises related and ancillary conduct, such as interfering with witnesses or investigations, and imposes a mandatory duty to report corruption under section 34. Convictions under PCCA carry severe penalties, including substantial fines, imprisonment (up to life in serious cases), and possible listing on the Register for Tender Defaulters. |
| The bribe | |
| Is there a presumption that any advantage was given/received corruptly? | 1 |
| 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 |
| 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 |
| 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:
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 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 |
