Corruption

Transparency International is an organisation based in Berlin, Germany. It releases annually, a ‘Corruption Perception Index’ (CPI), which measures the perceived levels of public sector corruption in 176 countries and then ranks them on a scale of 0 (highly corrupt) to 100 (very clean).¹ South Africa falls somewhere in the middle. In 2018 we were ranked with a score of 43. That means the Republic is perceived more to be corrupt than not.² And that is not a good thing.

At least, if it is any consolation, we are placed 8th on the list of African countries. (Our neighbour, Botswana, is the least corrupt African country, ranking 35th internationally with a score of 60.³)

Corruption, of course, does not only exist in government and its executive agencies (i.e. the public sector). Corruption happens – all too often – in the private sector as well. The Prevention and Combating of Corrupt Activities Act 2004 aims at all forms of corruption in all areas of life. Virtually the whole statute is devoted to criminalising various types of conduct.

The Act refers to ‘gratification’. This means, basically, just about anything that could be construed as a benefit of any sort – money, employment, status, a favour, privilege, withholding punishment, and so on. It does not matter for whom the benefit is.^4 5

A. The general offence of corruption

This offence applies, as well as to persons in general, specifically, also to:

• Foreign public officials – this is any person holding a legislative, judicial or administrative office of a foreign state, and any person performing public functions for a foreign state.⁶
• Agents – this is any person authorised to act on behalf of another person.⁷
• The Legislative Authority – this is Parliament, the provincial legislature, and municipal councils.⁸
• Judicial officers – this means any of the following and whether permanent, temporary or acting: judge (of any court); presiding officer or member (of any Tribunal inquiry, or survey); Magistrate; Commissioner; arbitrator, mediator or umpire; adjudicator; or assessor.⁹
• The Prosecuting Authority – as in the National Prosecuting Authority and all prosecutors in its employment.

1. It is a crime, directly or indirectly¹⁰ to accept (or agree, or offer to accept¹¹) any gratification from any other person, whether for the benefit of himself or for the benefit of another person in order to act (personally or by influencing another person so to act) in a manner that amounts to the:¹²
   • illegal, dishonest, unauthorised, incomplete, or biased exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation;
   • misuse or selling of information or material acquired in the course of such powers, duties or functions.

2. It is an offence to give to any other person any gratification for such purposes.¹³

3. It is an offence to give or accept any gratification in order to act, or influence another person to act in a manner that amounts to:¹⁴
   • the abuse of a position of authority;
   • a breach of trust; or
   • the violation of a legal duty or a set of rules.

4. It is an offence to act similarly, in order to achieve an unjustified result.¹⁵

5. It is a crime to act similarly if it amounts to any other unauthorised or improper inducement to do or not to do anything.¹⁶

6. Any person who:¹⁷
   • attempts;
   • conspires with any other person; or
   • aids, abets, induces, incites, instigates, instructs, commands, counsels or procures another person,

   to commit an offence in terms of the Act, is guilty of an offence.

B. Public officers¹⁸

1. Any public officer who accepts any gratification from any other person in order to act (personally or by influencing another person so to act) in a manner that amounts to the illegal, dishonest, unauthorised, incomplete, or biased exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation is guilty of an offence.¹⁹

2. Any public officer who accepts any gratification from any other person in order to act (personally or by influencing another person so to act) in a manner that amounts to the misuse or selling of information or material acquired as a result of such powers, duties or functions, is guilty of an offence.²⁰

3. Any person who gives any gratification to a public officer in order so to act is guilty of an offence.²¹

4. It is an offence to give or offer any public officer any gratification in order that he acts in a manner that amounts to:²²
   • the abuse of a position of authority;
   • a breach of trust; or
   • the violation of a legal duty or a set of rules.

5. Any public officer who accepts any gratification in order that he so acts is guilty of an offence.²³

6. It is an offence for a public officer to act similarly, in order to achieve an unjustified result.

7. It is a crime for a public officer to act similarly, if it amounts to any unauthorised or improper inducement to do, or not to do anything.

C. Employment relationship

1. Any person in an employment relationship and who accepts any unauthorised gratification in respect of any act in relation to the exercise, carrying out or performance of his powers, duties or functions within the scope of the employment relationship is guilty of an offence.²⁴

2. Any person who gives to any person in an employment relationship any unauthorised gratification in respect of any act in relation to the exercise, carrying out or performance of his powers, duties or functions within the scope of the employment relationship, is guilty of an offence.²⁵

D. Witnesses and evidential material

1. It is a crime to accept any gratification in return for:
   • testifying in a particular way or fashion;²⁶
   • testifying in an untruthful manner;²⁷
   • withholding testimony, or withholding a record, document, police docket or other object;²⁸
   • giving or withholding information relating to any aspect of the proceedings;²⁹
   • altering, destroying, mutilating or concealing a record, document, police docket or other object;³⁰
   • giving or withholding information relating to or contained in a police docket;³¹
   • evading legal process to appear as a witness, or to produce any record, document, police docket or other object;³²
   • being absent from any trial, hearing or proceedings.³³

2. Any person who gives any gratification to any other person with the intent to influence, delay or prevent the testimony of that person (or another person) as a witness in any proceedings commits an offence.³⁴

3. It is an offence to cause or induce any person, in relation to any proceedings to behave in any of the ways set out in D.1 above.³⁵

4. It is an offence to intimidate, or use physical force, or improperly persuade or coerce any other person with the intent to cause or induce any person to do any of the abovementioned.³⁶

5. Any person who intimidates, or uses physical force, or improperly persuades or coerces any other person with the intent to influence, prevent or delay his testimony (or that of another person) is guilty of an offence.³⁷

E. Contracts

1. Any person who accepts any gratification in order to influence, in any way:
   • the promotion, execution or procurement of any contract;³⁸ or
   • the fixing of the price, consideration or other moneys stipulated or otherwise provided for in any such contract,³⁹

   is guilty of a crime.

2. Any person who gives any gratification in order to influence, in any way:
   • the promotion, execution or procurement of any contract;⁴⁰ or
   • the fixing of the price, consideration or other moneys stipulated or otherwise provided for in any such contract,⁴¹

   is guilty of a crime.

3. It is also a crime to accept or to give any gratification as a reward for acting as contemplated above.⁴²

4. Any person who, in order to obtain or retain a contract (or a term in the contract) with a public body, gives any gratification:⁴³
   • for the purpose of promoting, in any way, the election of a candidate, or a category or party of candidates to the legislative authority; or
   • with the intent to influence or affect, in any way, the result of an election conducted for the purpose of electing persons to serve as members of the legislative authority,

   is guilty of an offence.

F. Tenders

1. Any person who accepts any gratification as an inducement (personally, or by influencing any other person⁴⁴) to award a tender to a particular person for any work, service, supply or performance is guilty of an offence.⁴⁵

2. It is an offence to accept any gratification as an inducement to cause the acceptance of a particular tender.⁴⁶

3. It is an offence to accept any gratification as an inducement to withdraw a tender.⁴⁷

4. Any person who accepts any gratification as a reward for so acting (that is, as contemplated in the above paragraphs) is guilty of an offence.⁴⁸

5. Any person who gives any gratification as an inducement to award a tender to a particular person is guilty of an offence.⁴⁹

6. Any person who gives any gratification as a reward for so acting commits a criminal offence.⁵⁰

7. It is a crime to give any gratification to any person who has submitted a tender as an inducement to withdraw the tender; or as a reward for withdrawing, or having withdrawn the tender, with the intent that you instead obtain the tender.⁵¹

G. Auctions

1. Any auctioneer who accepts any gratification in order to conduct an auction in a manner so as to favour, or to prejudice a specific person is guilty of a criminal offence.⁵²

2. It is also a crime to accept any gratification as a reward for so acting.⁵³

3. Any auctioneer who gives any gratification in order to influence a person to refrain from bidding at an auction, commits an offence.⁵⁴

4. Any auctioneer who gives any gratification in order to influence a person to participate (personally, or by influencing any other person so to participate) in the bidding process at an auction in such a manner so as to get a specific offer for an article; or to sell the article at a specific amount; or to sell the article to a specific bidder, is guilty of an offence.⁵⁵

5. Any auctioneer who gives any gratification as a reward for so acting is guilty of an offence.⁵⁶

6. Any person who accepts any gratification in return for not bidding at an auction commits an offence.⁵⁷

7. Any person who accepts any gratification in return for participating (personally, or by influencing any other person so to participate) in the bidding process in order to get a specific offer; or to buy for a specific amount; or to sell to a specific bidder, is guilty of an offence.⁵⁸

8. Any person who accepts any gratification in return as a reward for so acting is guilty of an offence.⁵⁹

9. Any person who gives any gratification to an auctioneer in order to influence him to conduct the bidding process so as to favour, or to prejudice a specific person is guilty of a crime.⁶⁰

10. Any person who gives any gratification to an auctioneer as a reward for so acting commits a crime.⁶¹

11. If you give any gratification in return for some person refraining from bidding at an auction, you are guilty of an offence.⁶²

12. If you give any gratification for that person participating (personally, or by influencing any other person so to participate) in the bidding process at an auction in such a manner so as to get a specific offer for an article; or to sell the article at a specific amount; or to sell the article to a specific bidder, you commit a crime.⁶³

13. If you give any gratification as a reward for some person who has so acted, you are guilty of a crime.⁶⁴

H. Sporting events⁶⁵

1. Any person who accepts any gratification in return for some person engaging in any act which constitutes a threat to, or undermines the integrity of, any sporting event (including, in any way, influencing the run of play, or the outcome of the event) commits a crime.

2. Any person who gives any gratification in return for some person engaging in any act which constitutes a threat to, or undermines the integrity of, any sporting event (including, in any way, influencing the run of play, or the outcome of the event) commits a crime.

3. Any person who accepts any gratification in return for not reporting such an act⁶⁶ commits a crime.

4. Any person who gives any gratification in return for some person not reporting such an act commits a crime.

5. Any person who accepts or gives any gratification as a reward for himself, or anyone else so acting, commits an offence.

6. If you carry into effect any scheme which constitutes a threat to, or undermines the integrity of, any sporting event (including, in any way, influencing the run of play or the outcome of the event) you are guilty of an offence.

I. Gambling⁶⁷

1. Any person who accepts any gratification in return for engaging in any conduct which constitutes a threat to, or undermines the integrity of, any gambling game or a game of chance (including, in any way, influencing the outcome) commits a crime.

2. Any person who gives any gratification in return for engaging in any conduct which constitutes a threat to, or undermines the integrity of, any gambling game or a game of chance (including, in any way, influencing the outcome) commits a crime.

3. It is a crime to accept, or to give any gratification as a reward for so acting.

4. If you carry into effect any scheme which constitutes a threat to, or undermines the integrity of, any gambling game or a game of chance (including, in any way, influencing the outcome) you are guilty of an offence.

J. Public body conflicts of interest

1. Any public officer⁶⁸ who acquires or holds a private interest in any contract, agreement or investment emanating from, or connected with, the public body in which he is employed (or which contract, agreement or investment is made on account of that public body) is guilty of an offence.^69 70

K. Obstructing investigations and conspiracy⁷¹

1. Any person who, with intent to conceal an offence under the Act, makes any false entry, or destroys, alters, mutilates or falsifies, or omits any information in or from any book, document, valuable security, account, computer system, disk, computer printout or other electronic device or any entry in such book, document, account or electronic device, is guilty of an offence.

2. Any person who, with intent to interfere with, or to hinder or obstruct, an investigation into an offence in terms of the Act does any such thing is also guilty of an offence.

3. Any person who is privy to⁷² such conduct commits a crime.

L. Investigatons regarding property

1. Any person who, knowing that property (or any part thereof) forms part of any gratification⁷³ enters into (or causes to be entered into) any dealing in relation to such property commits an offence.⁷⁴

2. Any person who, knowing that property (or any part thereof) forms part of any gratification, uses (or causes to be used) or holds, receives or conceals such property is guilty of an offence.⁷⁵

3. When there are grounds to suspect that you maintain a standard of living above your known sources of income, or assets; or that you are in possession of finance or property not in proportion to your known sources of income, or assets; and that the aforegoing is a result of corrupt or unlawful activities, a judge can (on application from the National Director of Public Prosecutions) order an ‘investigation on direction’.⁷⁶ Any person who obstructs or hinders such an investigation commits an offence.⁷⁷

4. If, during the course of, or for the purposes of, such an investigation, you are asked for information, or an explanation relating to any matter within your knowledge, you refuse or fail to give that information or explanation, or you give information or an explanation which is false or misleading, you commit an offence.⁷⁸

M. Duty to report

1. If you hold a position of authority, and know (or ought reasonably to know or suspect) that any other person has committed an offence under the Act, or the offence of theft, fraud, extortion, forgery or uttering a forged document involving an amount of R100 000 or more, you must report it to the South African Police Service. Should you fail to do so, you are guilty of an offence.⁷⁹