Statutes 3: Prevention and Combating of Corrupt Activities Act 12 of 2004

Fickle

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GOVERNMENT GAZETTE, 28 APRIL 2004

Act No. 12, 2004

PREVENTION AND COMBATING OF CORRUPT

ACTIVITIES ACT, 2004

(English text signed by the President.)

(Assented to 27 April 2004.)

ACT

To provide for the strengthening of measures to prevent and combat corruption and corrupt activities; to provide for the offence of corruption and offences relating to corrupt activities; to provide for investigative measures in respect of corruption and related corrupt activities; to provide for the establishment and endorsement of a Register in order to place certain restrictions on persons and enterprises convicted of corrupt activities relating to tenders and contracts; to place a duty on certain persons holding a position of authority to report certain corrupt transactions; to provide for extraterritorial jurisdiction in respect of the offence of corruption and offences relating to corrupt activities; and to provide for matters connected therewith.

PREAMBLE

WHEREAS the Constitution enshrines the rights of all people in the Republic and affirms the democratic values of human dignity, equality and freedom;

AND WHEREAS the Constitution places a duty on the State to respect, protect, promote and fulfil all the rights as enshrined in the Bill of Rights;

AND WHEREAS corruption and related corrupt activities undermine the said rights, endanger the stability and security of societies, undermine the institutions and values of democracy and ethical values and morality, jeopardise sustainable development, the rule of law and the credibility of governments, and provide a breeding ground for organised crime;

AND WHEREAS the illicit acquisition of personal wealth can be particularly damaging to democratic institutions, national economies, ethical values and the rule of law;

AND WHEREAS there are links between corrupt activities and other forms of crime, in particular organised crime and economic crime, including money-laundering;

AND WHEREAS corruption is a transnational phenomenon that crosses national borders and affects all societies and economies, and is equally destructive and reprehensible within both the public and private spheres of life, so that regional and international cooperation is essential to prevent and control corruption and related corrupt activities;

AND WHEREAS a comprehensive, integrated and multidisciplinary approach is required to prevent and combat corruption and related corrupt activities efficiently and effectively;

AND WHEREAS the availability of technical assistance can play an important role in enhancing the ability of States, including by strengthening capacity and by institution-building, to prevent and combat corruption and related corrupt activities efficiently and effectively;

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AND WHEREAS the prevention and combating of corruption and related corrupt activities is a responsibility of all States requiring mutual cooperation, with the support and involvement of individuals and groups outside the public sector, such as organs of civil society and non-governmental and community-based organizations, if their efforts in this area are to be efficient and effective;

AND WHEREAS the United Nations has adopted various resolutions condemning all corrupt practices, and urged member states to take effective and concrete action to combat all forms of corruption and related corrupt practices;

AND WHEREAS the Southern African Development Community Protocol against Corruption, adopted on 14 August 2001 in Malawi, reaffirmed the need to eliminate the scourges of corruption through the adoption of effective preventive and deterrent measures and by strictly enforcing legislation against all types of corruption;

AND WHEREAS the Republic of South Africa desires to be in compliance with and to become Party to the United Nations Convention against Corruption adopted by the General Assembly of the United Nations on 31 October 2003;

AND WHEREAS it is desirable to unbundle the crime of corruption in terms of which, in addition to the creation of a general, broad and all-encompassing offence of corruption, various specific corrupt activities are criminalized.

B E IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:—

ARRANGEMENT OF SECTIONS

Section

CHAPTER 1 DEFINITIONS AND INTERPRETATION

1. Definitions

2. Interpretation

CHAPTER 2 OFFENCES IN RESPECT OF CORRUPT ACTIVITIES

Part 1: General offence of corruption

3. General offence of corruption

Part 2: Offences in respect of corrupt activities relating to specific persons

4. Offences in respect of corrupt activities relating to public officers

5. Offences in respect of corrupt activities relating to foreign public officials 15

6. Offences in respect of corrupt activities relating to agents

7. Offences in respect of corrupt activities relating to members of legislative authority

8. Offences in respect of corrupt activities relating to judicial officers

9. Offences in respect of corrupt activities relating to members of prosecuting authority 20

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Part 3: Offences in respect of corrupt activities relating to receiving or offering of unauthorised gratification

10. Offences of receiving or offering of unauthorised gratification by or to party to an employment relationship

Part 4: Offences in respect of corrupt activities relating to specific matters

11. Offences in respect of corrupt activities relating to witnesses and evidential material during certain proceedings

12. Offences in respect of corrupt activities relating to contracts

13. Offences in respect of corrupt activities relating to procuring and withdrawal of tenders

14. Offences in respect of corrupt activities relating to auctions

15. Offences in respect of corrupt activities relating to sporting events

16. Offences in respect of corrupt activities relating to gambling games or games of chance

Part 5: Miscellaneous offences relating to possible conflict of interest and other unacceptable conduct

17. Offence relating to acquisition of private interest in contract, agreement or investment of public body

18. Offences of unacceptable conduct relating to witnesses

19. Intentional interference with, hindering or obstructing of investigation of offence

Part 6: Other offences relating to corrupt activities

20. Accessory to or after an offence

21. Attempt, conspiracy and inducing another person to commit offence

CHAPTER 3 INVESTIGATIONS REGARDING POSSESSION OF PROPERTY RELATING TO CORRUPT ACTIVITIES

22. Investigations regarding property relating to corrupt activities

23. Application for, and issuing of investigation direction in respect of possession of property disproportionate to a person's present or past known sources of income or assets

CHAPTER 4 PRESUMPTIONS AND DEFENCES

24. Presumptions

25. Defences

CHAPTER 5 PENALTIES AND RELATED MATTERS

26. Penalties

27. Authorisation by National Director, Deputy National Director or Director to institute proceedings in respect of certain offences

28. Endorsement of Register.

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CHAPTER 6 REGISTER FOR TENDER DEFAULTERS

29. Establishment of Register

30. Designation of Registrar

31. Powers, duties and functions of Registrar

32. Access to Register

33. Regulations pertaining to Register

CHAPTER 7 MISCELLANEOUS MATTERS

34. Duty to report corrupt transactions

35. Extraterritorial jurisdiction

36. Repeal and amendment of laws and transitional provisions

37. Short title and commencement

SCHEDULE

CHAPTER 1 DEFINITIONS AND INTERPRETATION

Definitions

1. In this Act, unless the context indicates otherwise—

(i) “agent” means any authorised representative who acts on behalf of his or her principal and includes a director, officer, employee or other person authorised to act on behalf of his or her principal, and “agency” has a corresponding meaning;

(ii) “animal” means any living vertebrate member of the animal kingdom, domestic or wild, but does not include a human being;

(iii) “business” means any business, trade, occupation, profession, calling, industry or undertaking of any kind, or any other activity carried on for gain or profit by any person within the Republic or elsewhere, and includes all property derived from or used in or for the purpose of carrying on such other activity, and all the rights and liabilities arising from such other activity;

(iv) “dealing” includes—

(a) any promise, purchase, sale, barter, loan, charge, mortgage, lien, pledge, caveat, transfer, delivery, assignment, subrogation, transmission, gift, donation, trust, settlement, deposit, withdrawal, transfer between accounts or extension of credit;

(b) any agency or grant of power of attorney; or

(c) any act which results in any right, interest, title or privilege, whether present or future or whether vested or contingent, in the whole or in part of any property being conferred on any person;

(v) “foreign public official” means—

(a) any person holding a legislative, administrative or judicial office of a foreign state;

(b) any person performing public functions for a foreign state, including any person employed by a board, commission, corporation or other body or authority that performs a function on behalf of the foreign state; or

(vi) “foreign state” means any country other than South Africa, and includes—

(a) any foreign territory;

(b) all levels and subdivisions of government of any such country or territory; or

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(vii) “gambling game” means any gambling game as defined in section 1 of the National Gambling Act, 1996 (Act No. 33 of 1996);

(viii) “game of chance”, includes a lottery, lotto, numbers game, scratch game, sweepstake, or sports pool;

(ix) “gratification”, includes—

(a) money, whether in cash or otherwise;

(b) any donation, gift, loan, fee, reward, valuable security, property or interest in property of any description, whether movable or immovable, or any other similar advantage;

(d) any office, status, honour, employment, contract of employment or services, any agreement to give employment or render services in any capacity and residential or holiday accommodation;

(e) any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part;

(f) any forbearance to demand any money or money’s worth or valuable thing;

(g) any other service or favour or advantage of any description, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted, and includes the exercise or the forbearance from the exercise of any right or any official power or duty;

(h) any right or privilege;

(i) any real or pretended aid, vote, consent, influence or abstention from voting; or

(j) any valuable consideration or benefit of any kind, including any discount, commission, rebate, bonus, deduction or percentage;

(x) “induce” includes to persuade, encourage, coerce, intimidate or threaten or cause a person, and “inducement” has a corresponding meaning;

(xi) “judicial officer” means—

(a) any constitutional court judge or any other judge as defined in section 1 of the Judges’ Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001);

(b) a judge of the Labour Court appointed under section 153(1)(a) or (b), (4) or (5) of the Labour Relations Act, 1995 (Act No. 66 of 1995);

(c) the President or judge of the Land Claims Court appointed under section 22(3), (4) or (8) of the Restitution of Land Rights Act, 1994 (Act No. 22 of 1994);

(d) any judge of the Competition Appeal Court appointed under section 36(2) of the Competition Act, 1998 (Act No. 89 of 1998);

(e) a judge or additional member appointed under section 7 of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996), to a Special Tribunal established in terms of section 2 of that Act;

(f) the presiding officer or member of the court of marine enquiry, the maritime court and the court of survey referred to in sections 267(1), 271(1) and 276(1) of the Merchant Shipping Act, 1951 (Act No. 57 of 1951), respectively;

(g) any presiding officer appointed under section 10(3)(b) of the Administration Amendment Act, 1929 (Act No. 9 of 1929), to a divorce court established in terms of section 10(1) of that Act;

(h) any regional magistrate or magistrate defined in section 1 of the Magistrates Act, 1993 (Act No. 90 of 1993);

(i) any commissioner appointed under section 9 of the Small Claims Courts Act, 1984 (Act No. 61 of 1984);

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(j) any arbitrator, mediator or umpire, who in terms of any law presides at arbitration or mediation proceedings for the settlement by arbitration or mediation of a dispute which has been referred to arbitration or mediation;

(k) any adjudicator appointed under section 6 of the Short Process Courts 5 and Mediation in Certain Civil Cases Act, 1991 (Act No. 103 of 1991);

(l) where applicable, any assessor who assists a judicial officer;

(m) any other presiding officer appointed to any court or tribunal established under any statute and who has the authority to decide causes or issues between parties and render decisions in a judicial capacity;

(n) any other person who presides at any trial, hearing, commission, committee or any other proceedings and who has the authority to decide causes or issues between parties and render decisions in a judicial capacity; or

(o) any person contemplated in paragraphs (a) to (n) who has been appointed 15 in an acting or temporary capacity;

(xii) “legislative authority”, means the legislative authority referred to in section 43 of the Constitution;

(xiii) “listed company” means a company, the equity share capital of which is listed on a stock exchange as defined in section 1 of the Stock Exchanges 20 Control Act, 1985 (Act No. 1 of 1985);

(xiv) “National Commissioner” means the National Commissioner of the South African Police Service appointed in terms of section 207(1) of the Constitution;

(xv) “National Director” means the National Director of Public Prosecutions 25 appointed in terms of section 179(1) of the Constitution;

(xvi) “official” means any director, functionary, officer or agent serving in any capacity whatsoever in a public body, private organisation, corporate body, political party, institution or other employment, whether under a contract of service or otherwise, and whether in an executive capacity or not; 30

(xvii) “person who is party to an employment relationship”, includes any person who in any manner assists in carrying on or conducting the business of an employer;

(xviii) “police official” means a “member” of the South African Police Service as defined in section 1 of the South African Police Service Act, 1995 (Act No. 68 35 of 1995);

(xix) “principal”, includes—

(a) any employer;

(b) any beneficiary under a trust and any trust estate;

(d) in the case of any person serving in or under a public body, the public body; or

(e) in the case of a legal representative referred to in the definition of “agent”, the person represented by such legal representative; 45

(xx) “private sector” means all persons or entities, including any—

(a) natural person or group of two or more natural persons who carries on a business;

(b) syndicate, agency, trust, partnership, fund, association, organisation or institution; 50

(d) body of persons corporate or unincorporate; or

(e) other legal person, but does not include—

(a) public officers; 55

(b) public bodies;

(d) the judicial authority or any judicial officer; or

(e) the prosecuting authority or any member thereof;

(xxi) “property” means money or any other movable, immovable, corporeal or 60 incorporated thing, whether situated in the Republic or elsewhere and includes any rights, privileges, claims, securities and any interest therein and all proceeds thereof;

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(xxii) “public body” means—

(a) any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or

(b) any other functionary or institution when—

(i) exercising a power or performing a duty or function in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public duty or function in terms of any legislation;

(xxiii) “public international organisation” means—

(a) an organisation—

(i) of which two or more countries are members; or

(ii) that is constituted by persons representing two or more countries;

(b) an organisation established by, or a group of organisations constituted by—

(i) organisations of which two or more countries are members; or

(ii) organisations that are constituted by the representatives of two or more countries; or

(i) an organ of, or office within, an organisation described in paragraph (a) or (b);

(ii) a commission, council or other body established by an organisation or organ referred to in subparagraph (i); or

(iii) a committee or a subcommittee of a committee of an organisation referred to in paragraph (a) or (b) or of an organ, council or body referred to in subparagraph (i) or (ii);

(xxiv) “public officer” means any person who is a member, an officer, an employee or a servant of a public body, and includes—

(a) any person in the public service contemplated in section 8(1) of the Public Service Act, 1994 (Proclamation No. 103 of 1994);

(b) any person receiving any remuneration from public funds; or

but does not include any—

(a) member of the legislative authority;

(b) judicial officer; or

(xxv) “sporting event” means any event or contest in any sport, between individuals or teams, or in which an animal competes, and which is usually attended by the public and is governed by rules which include the constitution, rules or code of conduct of any sporting body which stages any sporting event or of any regulatory body under whose constitution, rules or code of conduct the sporting event is conducted; and

(xxvi) “valuable security” means any document—

(a) creating, transferring, surrendering or releasing any right to, in or over property;

(b) authorising the payment of money or delivery of any property; or

(c) evidencing the creation, transfer, surrender or release of any such right, the payment of money or delivery of any property or the satisfaction of any obligation.

Interpretation

2. (1) For purposes of this Act a person is regarded as having knowledge of a fact if—

(a) that person has actual knowledge of the fact; or

(b) the court is satisfied that—

(i) the person believes that there is a reasonable possibility of the existence of that fact; and

(ii) the person has failed to obtain information to confirm the existence of that fact,

and “knowing” shall be construed accordingly.

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(2) For the purposes of this Act a person ought reasonably to have known or suspected a fact if the conclusions that he or she ought to have reached are those which would have been reached by a reasonably diligent and vigilant person having both—

(a) the general knowledge, skill, training and experience that may reasonably be expected of a person in his or her position; and

(b) the general knowledge, skill, training and experience that he or she in fact has.

(3) (a) A reference in this Act to accept or agree or offer to accept any gratification, includes to—

(i) demand, ask for, seek, request, solicit, receive or obtain;

(ii) agree to demand, ask for, seek, request, solicit, receive or obtain; or

(iii) offer to demand, ask for, seek, request, solicit, receive or obtain.

any gratification.

(b) A reference in this Act to give or agree or offer to give any gratification, includes to—

(i) promise, lend, grant, confer or procure;

(ii) agree to lend, grant, confer or procure; or

(iii) offer to lend, grant, confer or procure,

such gratification.

(4) A reference in this Act to any act, includes an omission and “acting” shall be construed accordingly.

(5) A reference in this Act to any person includes a person in the private sector.

CHAPTER 2

OFFENCES IN RESPECT OF CORRUPT ACTIVITIES

Part 1: General offence of corruption

#### General offence of corruption

3. Any person who, directly or indirectly—

(a) accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or

(b) gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or for the benefit of another person.

in order to act, personally or by influencing another person so to act, in a manner—

(i) that amounts to the—

(aa) illegal, dishonest, unauthorised, incomplete, or biased; or

(bb) misuse or selling of information or material acquired in the course of the exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation;

(ii) that amounts to—

(aa) the abuse of a position of authority;

(bb) a breach of trust; or

(cc) the violation of a legal duty or a set of rules;

(iii) designed to achieve an unjustified result; or

(iv) that amounts to any other unauthorised or improper inducement to do or not to do anything.

is guilty of the offence of corruption.

Part 2: Offences in respect of corrupt activities relating to specific persons

#### Offences in respect of corrupt activities relating to public officers

4. (1) Any—

(a) public officer who, directly or indirectly, accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or

(b) person who, directly or indirectly, gives or agrees or offers to give any gratification to a public officer, whether for the benefit of that public officer or for the benefit of another person.

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in order to act, personally or by influencing another person so to act, in a manner—

(i) that amounts to the—

(aa) illegal, dishonest, unauthorised, incomplete, or biased; or

(ii) that amounts to—

(aa) the abuse of a position of authority;

(bb) a breach of trust; or

(cc) the violation of a legal duty or a set of rules;

(iii) designed to achieve an unjustified result; or

(iv) that amounts to any other unauthorised or improper inducement to do or not to do anything.

is guilty of the offence of corrupt activities relating to public officers. 15

(2) Without derogating from the generality of section 2(4), “to act” in subsection (1), includes—

(a) voting at any meeting of a public body;

(b) performing or not adequately performing any official functions;

(d) aiding, assisting or favouring any particular person in the transaction of any business with a public body;

(e) aiding or assisting in procuring or preventing the passing of any vote or the granting of any contract or advantage in favour of any person in relation to the transaction of any business with a public body; 25

(f) showing any favour or disfavour to any person in performing a function as a public officer;

(g) diverting, for purposes unrelated to those for which they were intended, any property belonging to the state which such officer received by virtue of his or her position for purposes of administration, custody or for any other reason, to another person; or

(h) exerting any improper influence over the decision making of any person performing functions in a public body.

Offences in respect of corrupt activities relating to foreign public officials 35

5. (1) Any person who, directly or indirectly gives or agrees or offers to give any gratification to a foreign public official, whether for the benefit of that foreign public official or for the benefit of another person, in order to act, personally or by influencing another person so to act, in a manner—

(a) that amounts to the—

(i) illegal, dishonest, unauthorised, incomplete, or biased; or

(ii) misuse or selling of information or material acquired in the course of the exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation; 40

(b) that amounts to—

(i) the abuse of a position of authority;

(ii) a breach of trust; or

(iii) the violation of a legal duty or a set of rules;

(d) that amounts to any other unauthorised or improper inducement to do or not to do anything,

is guilty of the offence of corrupt activities relating to foreign public officials.

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(2) Without derogating from the generality of section 2(4), “to act” in subsection (1) includes—

(a) the using of such foreign public official’s or such others person’s position to influence any acts or decisions of the foreign state or public international organisation concerned; or

(b) obtaining or retaining a contract, business or an advantage in the conduct of business of that foreign state or public international organisation.

Offences in respect of corrupt activities relating to agents

6. Any—

(a) agent who, directly or indirectly—

(i) accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or

(ii) gives or agrees or offers to give to any person any gratification, whether for the benefit of that person or for the benefit of another person; or

(b) person who, directly or indirectly—

(i) accepts or agrees or offers to accept any gratification from an agent, whether for the benefit of himself or herself or for the benefit of another person; or

(ii) gives or agrees or offers to give any gratification to an agent, whether for the benefit of that agent or for the benefit of another person.

in order to act, personally or by influencing another person so to act, in a manner—

(aa) that amounts to the—

(aaa) illegal, dishonest, unauthorised, incomplete, or biased; or

(bbb) misuse or selling of information or material acquired in the course of the exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation;

(bb) that amounts to—

(aaa) the abuse of a position of authority;

(bbb) a breach of trust; or

(ccc) the violation of a legal duty or a set of rules;

(cc) designed to achieve an unjustified result; or

(dd) that amounts to any other unauthorised or improper inducement to do or not to do anything.

is guilty of the offence of corrupt activities relating to agents.

Offences in respect of corrupt activities relating to members of legislative authority

7. (1) Any—

(a) member of the legislative authority who, directly or indirectly, accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or

(b) person who, directly or indirectly, gives or agrees or offers to give any gratification to a member of the legislative authority, whether for the benefit of that member or for the benefit of another person.

in order to act, personally or by influencing another person so to act, in a manner—

(i) that amounts to the—

(aa) illegal, dishonest, unauthorised, incomplete, or biased; or

(ii) that amounts to—

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(aa) the abuse of a position of authority;

(bb) a breach of trust; or

(cc) the violation of a legal duty or a set of rules;

(iii) designed to achieve an unjustified result; or

(iv) that amounts to any other unauthorised or improper inducement to do or not to do anything.

is guilty of the offence of corrupt activities relating to members of the legislative authority.

(2) Without derogating from the generality of section 2(4), “to act” in subsection (1) includes—

(a) absenting himself or herself from;

(b) voting at any meeting of;

(d) exerting any improper influence over the decision making of any person performing his or her functions as a member of; or

(e) influencing in any way, the election, designation or appointment of any functionary to be elected, designated or appointed by,

the legislative authority of which he or she is a member or of any committee or joint committee of that legislative authority.

Offences in respect of corrupt activities relating to judicial officers

8. (1) Any—

(a) judicial officer who, directly or indirectly, accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or

(b) person who, directly or indirectly, gives or agrees or offers to give any gratification to a judicial officer, whether for the benefit of that judicial officer or for the benefit of another person,

in order to act, personally or by influencing another person so to act, in a manner—

(i) that amounts to the—

(aa) illegal, dishonest, unauthorised, incomplete, or biased; or

(ii) that amounts to—

(aa) the abuse of a position of authority;

(bb) a breach of trust; or

(cc) the violation of a legal duty or a set of rules;

(iii) designed to achieve an unjustified result; or

(iv) that amounts to any other unauthorised or improper inducement to do or not to do anything,

is guilty of the offence of corrupt activities relating to judicial officers.

(2) Without derogating from the generality of section 2(4), “to act” in subsection (1) includes—

(a) performing or not adequately performing a judicial function;

(b) making decisions affecting life, freedoms, rights, duties, obligations and property of persons;

(d) aiding, assisting or favouring any particular person in conducting judicial proceedings or judicial functions;

(e) showing any favour or disfavour to any person in the performance of a judicial function; or

(f) exerting any improper influence over the decision making of any person, including another judicial officer or a member of the prosecuting authority, performing his or her official functions.

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Offences in respect of corrupt activities relating to members of prosecuting authority

9. (1) Any—

(a) member of the prosecuting authority who, directly or indirectly, accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person;

(b) person who, directly or indirectly, gives or agrees or offers to give any gratification to a member of the prosecuting authority, whether for the benefit of that member or for the benefit of another person.

in order to act, personally or by influencing another person so to act, in a manner—

(i) that amounts to the—

(aa) illegal, dishonest, unauthorised, incomplete, or biased; or

(ii) that amounts to—

(aa) the abuse of a position of authority;

(bb) a breach of trust; or

(cc) the violation of a legal duty or a set of rules;

(iii) designed to achieve an unjustified result; or

(iv) that amounts to any other unauthorised or improper inducement to do or not to do anything.

is guilty of the offence of corrupt activities relating to members of the prosecuting authority.

(2) Without derogating from the generality of section 2(4), “to act” in subsection (1) includes—

(a) performing or not adequately performing a function relating to the—

(i) institution or conducting of criminal proceedings;

(ii) carrying out of any necessary functions incidental to the institution or conducting of such criminal proceedings; or

(iii) continuation or discontinuation of criminal proceedings;

(b) delaying, hindering or preventing the performance of a prosecutorial function;

(c) aiding or assisting any particular person in the performance of a function relating to the institution or conducting of criminal proceedings;

(d) showing any favour or disfavour to any person in the performance of a function relating to the institution or conducting of criminal proceedings; or

(e) exerting any improper influence over the decision making of any person, including another member of the prosecuting authority or a judicial officer, performing his or her official functions.

Part 3: Offences in respect of corrupt activities relating to receiving or offering of unauthorised gratification

Offences of receiving or offering of unauthorised gratification by or to party to an employment relationship

10. Any person—

(a) who is party to an employment relationship and who, directly or indirectly, accepts or agrees or offers to accept from any other person any unauthorised gratification, whether for the benefit of that person or for the benefit of another person; or

(b) who, directly or indirectly, gives or agrees or offers to give to any person who is party to an employment relationship any unauthorised gratification, whether for the benefit of that party or for the benefit of another person.

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in respect of that party doing any act in relation to the exercise, carrying out or performance of that party's powers, duties or functions within the scope of that party's employment relationship, is guilty of the offence of receiving or offering an unauthorised gratification.

Part 4: Offences in respect of corrupt activities relating to specific matters

Offences in respect of corrupt activities relating to witnesses and evidential material during certain proceedings

11. (1) Any person who, directly or indirectly, accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person, in return for—

(a) testifying in a particular way or fashion or in an untruthful manner in a trial, hearing or other proceedings before any court, judicial officer, committee, commission or officer authorised by law to hear evidence or take testimony;

(b) withholding testimony or withholding a record, document, police docket or other object at any such trial, hearing or proceedings;

(d) altering, destroying, mutilating, or concealing a record, document, police docket or other object with the intent to impair the availability of such record, document, police docket or other object for use at such trial, hearing or proceedings;

(e) giving or withholding information relating to or contained in a police docket;

(f) evading legal process summoning that person to appear as a witness or to produce any record, document, police docket or other object at such trial, hearing or proceedings; or

(g) being absent from such trial, hearing or proceedings,

is guilty of the offence of corrupt activities relating to witnesses and evidential material during certain proceedings.

(2) Any person who, directly or indirectly, gives or agrees or offers to give any gratification to any other person, whether for the benefit of that other person or for the benefit of another person, with the intent to—

(a) influence, delay or prevent the testimony of that person or another person as a witness in a trial, hearing or other proceedings before any court, judicial officer, committee, commission or any officer authorised by law to hear evidence or take testimony; or

(b) cause or induce any person to—

(i) testify in a particular way or fashion or in an untruthful manner in a trial, hearing or other proceedings before any court, judicial officer, committee, commission or officer authorised by law to hear evidence or take testimony;

(ii) withhold testimony or to withhold a record, document, police docket or other object at such trial, hearing or proceedings;

(iii) give or withhold information relating to any aspect at any such trial, hearing or proceedings;

(iv) alter, destroy, mutilate, or conceal a record, document, police docket or other object with the intent to impair the availability of such record, document, police docket or other object for use at such trial, hearing or proceedings;

(v) give or withhold information relating to or contained in a police docket;

(vi) evade legal process summoning that person to appear as a witness or to produce any record, document, police docket or other object at such trial, hearing or proceedings; or

(vii) be absent from such trial, hearing or other proceedings,

is guilty of the offence of corrupt activities relating to witnesses and evidential material during certain proceedings.

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Offences in respect of corrupt activities relating to contracts

12. (1) Any person who, directly or indirectly—

(a) accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of that other person or of another person; or

(b) gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or for the benefit of another person.

(i) in order to improperly influence, in any way—

(aa) the promotion, execution or procurement of any contract with a public body, private organisation, corporate body or any other organisation or institution; or

(bb) the fixing of the price, consideration or other moneys stipulated or otherwise provided for in any such contract; or

(ii) as a reward for acting as contemplated in paragraph (a).

is guilty of the offence of corrupt activities relating to contracts.

(2) Any person who, in order to obtain or retain a contract with a public body or as a term of such contract, directly or indirectly, gives or agrees or offers to give any gratification to any other person, whether for the benefit of that other person or for the benefit of another person—

(a) 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

(b) 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.

Offences in respect of corrupt activities relating to procuring and withdrawal of tenders

13. (1) Any person who, directly or indirectly, accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person, as—

(a) an inducement to, personally or by influencing any other person so to act—

(i) award a tender, in relation to a contract for performing any work, providing any service, supplying any article, material or substance or performing any other act, to a particular person; or

(ii) upon an invitation to tender for such contract, make a tender for that contract which has as its aim to cause the tenderee to accept a particular tender; or

(iii) withdraw a tender made by him or her for such contract; or

(b) a reward for acting as contemplated in paragraph (a)(i), (ii) or (iii).

is guilty of the offence of corrupt activities relating to procuring and withdrawal of tenders.

(2) Any person who, directly or indirectly—

(a) gives or agrees or offers to give any gratification to any other person, whether for the benefit of that other person or the benefit of another person, as—

(i) an inducement to, personally or by influencing any other person so to act, award a tender, in relation to a contract for performing any work, providing any service, supplying any article, material or substance or performing any other act, to a particular person; or

(ii) a reward for acting as contemplated in subparagraph (i); or

(b) with the intent to obtain a tender in relation to a contract for performing any work, providing any service, supplying any article, material or substance or performing any other act, gives or agrees or offers to give any gratification to

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any person who has made a tender in relation to that contract, whether for the benefit of that tenderer or for the benefit of any other person, as—

(i) an inducement to withdraw the tender; or

(ii) a reward for withdrawing or having withdrawn the tender.

is guilty of the offence of corrupt activities relating to procuring and withdrawal of tenders. 5

Offences in respect of corrupt activities relating to auctions

14. (1) Any auctioneer who, directly or indirectly—

(a) accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person—

(i) in order to conduct the bidding process at an auction in a manner so as to favour or prejudice a specific person; or

(ii) as a reward for acting as contemplated in subparagraph (i); or

(b) gives or agrees or offers to give any gratification to any other person, whether for the benefit of that other person or for the benefit of another person—

(i) in order to influence that person to—

(aa) refrain from bidding at an auction; or

(bb) 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 the article or to sell the article at a specific amount or to sell the article to a specific bidder; or

(ii) as a reward for acting as contemplated in subparagraph (i).

is guilty of the offence of corrupt activities relating to auctions.

(2) Any person who, directly or indirectly—

(a) accepts or agrees or offers to accept any gratification from any other person or an auctioneer, whether for the benefit of himself or herself or for the benefit of another person—

(i) in return for that person—

(aa) refraining from bidding at an auction; or

(bb) participating, personally or by influencing any other person so to participate, at an auction in the bidding process in order to get a specific offer for the article or to buy the article for a specific amount or to sell the article to a specific bidder; or

(ii) as a reward for acting as contemplated in subparagraph (i); or

(b) gives or agrees or offers to give any gratification to an auctioneer, whether for the benefit of that auctioneer or for the benefit of another person—

(i) in order to influence that auctioneer to conduct the bidding process at an auction in such a manner so as to favour or prejudice a specific person; or

(ii) as a reward for acting as contemplated in subparagraph (i); or

(c) gives or agrees or offers to give any gratification to any other person, whether for the benefit of that other person or for the benefit of another person—

(i) in return for that other person—

(aa) refraining from bidding at an auction; or

(bb) 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 the article or to sell the article at a specific amount or to sell the article to a specific bidder; or

(ii) as a reward for acting as contemplated in subparagraph (i),

is guilty of the offence of corrupt activities relating to auctions. 50

Offences in respect of corrupt activities relating to sporting events

15. Any person who, directly or indirectly—

(a) accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of that other person or of another person; or 55

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(b) gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or for the benefit of another person—

(i) in return for—

(aa) 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 a sporting event; or

(bb) not reporting the act contemplated in this section to the managing director, chief executive officer or to any other person holding a similar post in the sporting body or regulatory authority concerned or at his or her nearest police station; or

(ii) as a reward for acting as contemplated in subparagraph (i); or

(c) carries 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 a sporting event,

is guilty of the offence of corrupt activities relating to sporting events.

Offences in respect of corrupt activities relating to gambling games or games of chance

16. Any person who, directly or indirectly—

(a) accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of that other person or of another person; or

(b) gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or for the benefit of another person—

(i) 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 of a gambling game or a game of chance; or

(ii) as a reward for acting as contemplated in subparagraph (i); or

(c) carries 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 of a gambling game or a game of chance.

is guilty of the offence of corrupt activities relating to gambling games or games of chance.

Part 5: Miscellaneous offences relating to possible conflict of interest and other unacceptable conduct

Offence relating to acquisition of private interest in contract, agreement or investment of public body

17. (1) Any public officer who, subject to subsection (2), acquires or holds a private interest in any contract, agreement or investment emanating from or connected with the public body in which he or she is employed or which is made on account of that public body, is guilty of an offence.

(2) Subsection (1) does not apply to—

(a) a public officer who acquires or holds such interest as a shareholder of a listed company;

(b) a public officer, whose conditions of employment do not prohibit him or her from acquiring or holding such interest; or

(c) in the case of a tender process, a public officer who acquires a contract, agreement or investment through a tender process and whose conditions of employment do not prohibit him or her from acquiring or holding such interest and who acquires or holds such interest through an independent tender process.

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Offences of unacceptable conduct relating to witnesses

18. Any person who, directly or indirectly, intimidates or uses physical force, or improperly persuades or coerces another person with the intent to—

(b) cause or induce any person to—

(ii) withhold testimony or to withhold a record, document, police docket or other object at such trial, hearing or proceedings;

(iii) give or withhold information relating to any aspect at any such trial, hearing or proceedings;

(v) give or withhold information relating to or contained in a police docket;

(vi) evade legal process summoning that person to appear as a witness or to produce any record, document, police docket or other object at such trial, hearing or proceedings; or

(vii) be absent from such trial, hearing or other proceedings, is guilty of the offence of unacceptable conduct relating to a witness.

Intentional interference with, hindering or obstruction of investigation of offence

19. Any person who, at any stage, with intent to defraud or to conceal an offence in terms of this Chapter or to interfere with, or to hinder or obstruct a law enforcement body in its investigation of any such offence—

(a) destroys, alters, mutilates or falsifies 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, or is privy to any such act;

(b) makes or is privy to making any false entry in such book, document, account or electronic device; or

is guilty of an offence.

Part 6: Other offences relating to corrupt activities

Accessory to or after offence

20. Any person who, knowing that property or any part thereof forms part of any gratification which is the subject of an offence in terms of Part 1, 2, 3 or 4, or section 21 (in so far as it relates to the aforementioned offences) of this Chapter, directly or indirectly, whether on behalf of himself or herself or on behalf of any other person—

(a) enters into or causes to be entered into any dealing in relation to such property or any part thereof; or

(b) uses or causes to be used, or holds, receives or conceals such property or any part thereof,

is guilty of an offence.

Attempt, conspiracy and inducing another person to commit offence

21. Any person who—

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(a) attempts;

(b) conspires with any other person; or

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

CHAPTER 3 INVESTIGATIONS REGARDING POSSESSION OF PROPERTY RELATING TO CORRUPT ACTIVITIES

Investigation regarding property relating to corrupt activities

22. (1) Whenever the National Director has reason to suspect that there may be in any building, receptacle or place, or in the possession, custody or control of any person any property which—

(a) may have been used in the commission, or for the purpose of or in connection with the commission, of an offence under Chapter 2;

(b) may have facilitated the commission of such an offence, or enabled any person or entity to commit such an offence, or provided financial or economic support to a person or entity in the commission of such an offence; or

he or she may, prior to the institution of any asset forfeiture or criminal proceedings, under written authority direct that a particular Director of Public Prosecutions or a Special Director of Public Prosecutions, shall have the power to institute an investigation in terms of the provisions of Chapter 5 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), relating to such property.

(2) For purposes of subsection (1), a reference in the said Chapter 5 to—

(a) the “head of the Directorate of Special Operations” or an “Investigating Director” shall be construed as a reference to a Director of Public Prosecutions or a Special Director of Public Prosecutions, as the case may be: Provided that for purposes of section 28(2)(a) of the said Act, a Director of Public Prosecutions or Special Director of Public Prosecutions, may only designate a Deputy Director of Public Prosecutions; and

(b) a “special investigator” shall be construed as to include a police official.

(3) If property seized under any power exercised under subsection (1) consists of cash or funds standing to the credit of a bank account, the Director of Public Prosecutions or a Special Director of Public Prosecutions who has instituted the investigation under that subsection shall cause the cash or funds to be paid into a banking account which shall be opened with any bank as defined in section 1 of the Banks Act, 1990 (Act No. 94 of 1990), and the Director of Public Prosecutions or a Special Director of Public Prosecutions shall forthwith report to the Financial Intelligence Centre the fact of the seizure of the cash or funds and the opening of the account.

Application for, and issuing of investigation direction in respect of possession of property disproportionate to a person’s present or past known sources of income or assets

23. (1) The National Director, or any person authorised in writing thereto by him or her (hereinafter referred to as the applicant), may apply to a judge in chambers for the issuing of an investigation direction in terms of subsection (3).

(2) An application referred to in subsection (1) must be in writing and must—

(a) indicate the identity of the—

(i) applicant and, if known, the identity of the person who will conduct the investigation; and

(ii) person to be investigated (hereinafter referred to as the suspect);

(b) specify the grounds referred to in subsection (3) on which the application is made;

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(c) contain full particulars of all the facts and circumstances alleged by the applicant in support of his or her application;

(d) include the basis for believing that evidence relating to the ground on which the application is made will be obtained through the investigation direction;

(e) indicate whether any previous application has been made for the issuing of an investigation direction in respect of the same suspect in the application and, if such previous application exists, must indicate the current status of that application; and

(f) indicate the period for which the investigation is required.

(3) (a) A judge in chambers may upon an ex parte application made to him or her in terms of subsection (1), issue an investigation direction.

(b) An investigation direction may only be issued if the judge concerned is satisfied that—

(i) there has been compliance with the provisions of subsection (2); and

(ii) on the facts alleged in the application concerned, there are reasonable grounds to believe that—

(aa) a person—

(aaa) maintains a standard of living above that which is commensurate with his or her present or past known sources of income or assets; or

(bbb) is in control or possession of pecuniary resources or property disproportionate to his or her present or past known sources of income or assets; and

(bb) that person maintains such a standard of living through the commission of corrupt activities or the proceeds of unlawful activities or that such pecuniary resources or properties are instrumentalities of corrupt activities or the proceeds of unlawful activities; and

(cc) such investigation is likely to reveal information, documents or things which may afford proof that such a standard of living is maintained through the commission of corrupt activities or the proceeds of unlawful activities or that such pecuniary resources or properties are instrumentalities of corrupt activities or the proceeds of unlawful activities.

(i) must be in writing;

(ii) must indicate the identity of the suspect and, if known, the person who will conduct the investigation;

(iii) must specify the period for which it has been issued;

(iv) may specify conditions of restriction relating to the conducting of the investigation; and

(v) may be issued in respect of any place in the Republic.

(d) An application must be considered and an investigation direction issued without any notice to the suspect to whom the application applies and without hearing that suspect: Provided that where any previous investigation direction has been issued in respect of a suspect, the applicant may only apply for a further investigation direction in respect of that suspect on the same facts, after giving reasonable notice to the suspect concerned.

(e) A judge considering an application may require the applicant to furnish such further information as he or she deems necessary.

(4) If an investigation direction has been issued under subsection (3), the National Director or the person authorised thereto in the investigation direction, may, for the purposes of an investigation direction—

(a) summon the suspect or any other person, specified in the investigation direction, who is believed to be able to furnish any information on the subject of the investigation or to have in his or her possession or under his or her control any property, book, document or other object relating to that subject, to appear before the National Director or the person so authorised, at a time and place specified in the summons, to be questioned or to produce that property, book, document or other object;

(b) question that suspect or other person, under oath or affirmation administered by the National Director or the person so authorised, and examine or retain for

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further examination or for safe custody such property, book, document or other object; or

(c) at any reasonable time and without prior notice or with such notice as he or she may deem appropriate, enter any premises where the suspect is or is suspected to be or any premises on or in which anything connected with that investigation is or is suspected to be, and may—

(i) inspect and search those premises, and there make such enquiries as he or she may deem necessary;

(ii) examine any property found on or in the premises which has a bearing or might have a bearing on the investigation in question, and request from the suspect or the owner or person in charge of the premises or from any person in whose possession or charge that property is, information regarding that property;

(iii) make copies of or take extracts from any book or document found on or in the premises which has a bearing or might have a bearing on the investigation in question, and request from any person suspected of having the necessary information, an explanation of any entry therein; or

(iv) seize, against the issue of a receipt, anything on or in the premises which has a bearing or might have a bearing on the investigation in question, or if he or she wishes to retain it for further examination or for safe custody: Provided that any person from whom a book or document has been taken under paragraph (b) or (c)(iv), may, as long as it is in the possession of the person conducting the investigation, at his or her request be allowed, at his or her own expense and under the supervision of the person conducting the investigation, to make copies thereof or to take extracts therefrom at any reasonable time.

(5) (a) The law regarding privilege as applicable to a witness summoned to give evidence in a criminal case in a magistrate’s court shall apply in relation to the questioning of a suspect or any person referred to in subsection (4): Provided that such a person shall not be entitled to refuse to answer any question upon the ground that the answer would tend to expose him or her to a criminal charge.

(b) No evidence regarding any questions and answers contemplated in paragraph (a) shall be admissible in any criminal proceedings, except in criminal proceedings where the person concerned stands trial on a charge contemplated in subsection (7)(b), or in section 319(3) of the Criminal Procedure Act, 1955 (Act No. 56 of 1955).

(6) Subject to any directions, conditions or restrictions determined by the judge under subsection (3)(c)(iv), the provisions of sections 28(1)(d), (2) to (10) and 29(2), (7)(a), (9), (10)(b) and (11) of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), relating to the conducting of an investigation and the execution of a warrant in terms of those provisions, apply, with the necessary changes, in respect of an investigation conducted in terms of subsection (4).

(7) Any person who—

(a) obstructs or hinders the person conducting the investigation or any other person in the performance of his or her functions in terms of this section; or

(b) when he or she is asked in terms of subsection (4) for information or an explanation relating to a matter within his or her knowledge, refuses or fails to give that information or explanation or gives information or an explanation which is false or misleading, knowing it to be false or misleading, shall be guilty of an offence.

CHAPTER 4

PRESUMPTIONS AND DEFENCES

Presumptions

24. (1) Whenever a person is charged with an offence under Part 1 or 2, or section 21 (in so far as it relates to the aforementioned offences) of Chapter 2, proof that that person, or someone else at the instance of that person—

(a) accepted or agreed or offered to accept any gratification from; or

(b) gave or agreed or offered to give any gratification to,

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any other person—

(i) who holds or seeks to obtain a contract, licence, permit, employment or anything whatsoever from a public body, private organisation, corporate body or other organisation or institution in which the person charged was serving as an official;

(ii) who is concerned, or who is likely to be concerned, in any proceedings or business transacted, pending or likely to be transacted before or by the person charged or public body, private organisation, corporate body, political party or other organisation or institution in which the person charged was serving as an official; or

(iii) who acts on behalf of a person contemplated in subparagraph (i) or (ii), and, if the State can further show that despite having taken reasonable steps, it was not able with reasonable certainty to link the acceptance of or agreement or offer to accept or the giving or agreement to give or offer to give 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, is sufficient evidence that the person charged accepted or agreed or offered to accept such gratification from that person or gave or agreed or offered to give such gratification to that person in order to act, in a manner—

(aa) that amounts to the—

(aaa) illegal, dishonest, unauthorised, incomplete, or biased; or

(bb) that amounts to—

(aaa) the abuse of a position of authority;

(bbb) a breach of trust; or

(ccc) the violation of a legal duty or a set of rules;

(cc) designed to achieve an unjustified result; or

(dd) that amounts to any other unauthorised or improper inducement to do or not to do anything.

(2) Whenever a public officer whose duties include the detection, investigation, prosecution or punishment of offenders, is charged with an offence involving the acceptance of a gratification, arising from—

(a) the arrest, detention, investigation or prosecution of any person for an alleged offence;

(b) the omission to arrest, detain or prosecute any person for an alleged offence; or

it is not necessary to prove that the accused person believed that an offence contemplated in paragraphs (a) to (c) or any other offence had been committed.

Defences

25. Whenever an accused person is charged with an offence under Part 1, 2, 3 or 4, or section 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2, it is not a valid defence for that accused person to contend that he or she—

(a) did not have the power, right or opportunity to perform or not to perform the act in relation to which the gratification was given, accepted or offered;

(b) accepted or agreed or offered to accept, or gave or agreed or offered to give the gratification without intending to perform or not to perform the act in relation to which the gratification was given, accepted or offered; or

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CHAPTER 5 PENALTIES AND RELATED MATTERS

Penalties

26. (1) Any person who is convicted of an offence referred to in—

(a) Part 1, 2, 3 or 4, or section 18 of Chapter 2, is liable—

(i) in the case of a sentence to be imposed by a High Court, to a fine or to imprisonment up to a period for imprisonment for life;

(ii) in the case of a sentence to be imposed by a regional court, to a fine or to imprisonment for a period not exceeding 18 years; or

(iii) in the case of a sentence to be imposed by a magistrate’s court, to a fine or to imprisonment for a period not exceeding five years;

(b) section 17(1), 19, 20, 23(7)(a) or (b) or 34(2), is liable—

(i) in the case of a sentence to be imposed by a High Court or a regional court, to a fine or to imprisonment for a period not exceeding 10 years; or

(ii) in the case of a sentence to be imposed by a magistrate’s court, to a fine or to imprisonment for a period not exceeding three years; or

(2) A person convicted of an offence referred to in section 21, is liable to the punishment laid down in subsection (1) for the offence which that person attempted or conspired to commit or aided, abetted, induced, instigated, instructed, commanded, counseled or procured another person to commit.

(3) In addition to any fine a court may impose in terms of subsection (1) or (2), the court may impose a fine equal to five times the value of the gratification involved in the offence.

Authorisation by National Director, Deputy National Director or Director to institute proceedings in respect of certain offences

27. The institution of a prosecution for an offence referred to in section 17(1), 23(7)(b) or 34(2), must be authorised in writing by the National Director, a Deputy National Director of Public Prosecutions or the Director of Public Prosecutions concerned and only after the person concerned has been afforded a reasonable opportunity by the investigating or prosecuting authority, as the case may be, to explain, whether personally or through a legal representative—

(a) in the case of section 17(1), how he or she acquired the private interest concerned;

(b) in the case of section 23(7)(b), how he or she acquired the property or resources concerned; or

Endorsement of Register

28. (1) (a) A court convicting a person of an offence contemplated in section 12 or 13, may, in addition to imposing any sentence contemplated in section 26, issue an order that—

(i) the particulars of the convicted person;

(ii) the conviction and sentence; and

(iii) any other order of the court consequent thereupon, be endorsed on the Register.

(b) If the person so convicted is an enterprise, the court may also issue an order that—

(i) the particulars of that enterprise;

(ii) the particulars of any partner, manager, director or other person, who wholly or partly exercises or may exercise control over that enterprise and who was

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involved in the offence concerned or who knows or ought reasonably to have known or suspected that the enterprise committed the offence concerned; and

(iii) the conviction, sentence and any other order of the court consequent thereupon,

be endorsed on the Register.

(i) any other enterprise owned or controlled by the person so convicted; or

(ii) the particulars of any partner, manager, director or other person, who wholly or partly exercises or may exercise control over such other enterprise.

and which—

(aa) enterprise, partner, manager, director or other person was involved in the offence concerned; or

(bb) partner, manager, director or other person knew or ought reasonably to have known or suspected that such other enterprise was involved in the offence concerned.

(d) Whenever the Register is endorsed as contemplated in paragraph (a), (b) or (c), the endorsement applies, unless the court directs otherwise, to every enterprise to be established in the future, and which enterprise will be wholly or partly controlled or owned by the person or enterprise so convicted or endorsed, and the Registrar must, in respect of every such enterprise, endorse the Register accordingly.

(2) Where a court has issued an order under subsection (1), the registrar or clerk of such court must forthwith forward the court order to the Registrar and the Registrar must forthwith endorse the Register accordingly.

(3) (a) Where the Register has been endorsed in terms of subsection (2), in addition to any other legal action, the following restrictions may or must, as the case may be, be imposed:

(i) The National Treasury may terminate any agreement with the person or enterprise referred to in subsection (1)(a) or (b): Provided that—

(aa) in considering the termination of an agreement, the National Treasury must take into account, among others, the following factors, namely—

(aaa) the extent and duration of the agreement concerned;

(bbb) whether it is likely to conclude a similar agreement with another person or enterprise within a specific time frame;

(ccc) the extent to which the agreement has been executed;

(ddd) the urgency of the services to be delivered or supplied in terms of the agreement;

(eee) whether extreme costs will follow such termination; and

(fff) any other factor which, in the opinion of the National Treasury, may impact on the termination of the agreement; and

(bb) if that agreement involves any purchasing authority or Government Department, such restriction may only be imposed after consultation with the purchasing authority or Government Department concerned;

(ii) the National Treasury must determine the period (which period may not be less than five years or more than 10 years) for which the particulars of the convicted person or the enterprise referred to in subsection (1)(a), (b), (c) or (d) must remain in the Register and during such period no offer in respect of any agreement from a person or enterprise referred to in that subsection may be considered by the National Treasury; or

(iii) during the period determined in subparagraph (ii), the National Treasury, the purchasing authority or any Government Department must—

(aa) ignore any offer tendered by a person or enterprise referred to in subsection (1)(a), (b), (c) or (d); or

(bb) disqualify any person or enterprise referred to subsection (1)(a), (b), (c) or (d), from making any offer or obtaining any agreement relating to the procurement of a specific supply or service.

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(b) A restriction imposed under paragraph (a) only comes into effect after any appeal against the conviction or sentence or both has been finalised by the court: Provided that if the appeal court sets aside, varies or amends the order referred to in subsection (1), the National Treasury must, if necessary, amend the restrictions imposed under paragraph (a) accordingly.

(c) Where the National Treasury has terminated an agreement in terms of paragraph (a)(i), it may, in addition to any other legal remedy, recover from the person or enterprise any damages—

(i) incurred or sustained by the State as a result of the tender process or the conclusion of the agreement; or

(ii) which the State may suffer by having to make less favourable arrangements thereafter.

(4) The National Treasury—

(a) may at any time vary or rescind any restriction imposed under subsection (3)(a)(i) or (ii); and

(b) must, when the period determined in terms of subsection (3)(a)(ii) expires, remove the particulars of the person or enterprise concerned, from the Register.

(5) When the National Treasury imposes a restriction under subsection (3)(a)(i) or (ii), or amends or rescinds such a restriction, it must within 14 days in writing notify—

(a) the person whose particulars have been so endorsed;

(b) any purchasing authority on which it may decide; and

(c) all Government departments, of any resolution or decision relative to such restriction or the amendment or rescinding thereof, and request such authorities and departments to take similar steps.

(6) (a) Any person whose particulars, conviction and sentence have been endorsed on the Register as contemplated in this section and who has been notified as contemplated in subsection (5)(a), must in any subsequent agreement or tender process involving the State, disclose such endorsement, conviction and sentence.

(b) Any person who fails to comply with paragraph (a), is guilty of an offence.

(7) For purposes of this section—

(a) “agreement” includes an agreement to procure and supply services, to arrange the hiring or letting of anything or the acquisition or granting of any right for or on behalf of the State;

(b) “enterprise” includes any individual, partnership, corporation, association, or other juristic person or legal entity, and any union or group of individuals associated in fact, although not a juristic person or legal entity;

(d) “Register” means the Register established under section 29.

CHAPTER 6 REGISTER FOR TENDER DEFAULTERS

Establishment of Register

29. Within six months after the commencement of this Chapter, the Minister of Finance must establish a register, to be known as the Register for Tender Defaulters, within the Office of the National Treasury.

Designation of Registrar

30. The Minister of Finance must designate a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, as Registrar.

Powers, duties and functions of Registrar

31. (1) The Registrar must, subject to the provisions of section 28 and this Chapter, exercise and perform his or her powers, duties and functions subject to the control and directions of the National Treasury.

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(2) The Registrar must—

(a) maintain the Register;

(b) manage the Office of the Registrar; and

(c) carry out the duties and perform the functions assigned to him or her by section 28, this Chapter or the National Treasury or any other law.

Access to Register

32. The Register is open to the public as prescribed.

Regulations pertaining to Register

33. (1) The Minister of Finance may, in consultation with the Minister responsible for the administration of justice, make regulations relating to—

(a) the maintenance and management of the Register, the particulars to be entered in such Register, the manner in which such particulars must be recorded and the period for which the information in the Register must be retained;

(b) access to information contained in the Register;

(d) any other matter which the Minister may consider necessary to prescribe in order to achieve the objects of section 28 and this Chapter.

(2) Regulations made in terms of subsection (1) may, in respect of any contravention thereof or failure to comply therewith, prescribe as a penalty a fine or imprisonment for a period not exceeding 12 months.

CHAPTER 7 MISCELLANEOUS MATTERS

Duty to report corrupt transactions

34. (1) Any person who holds a position of authority and who knows or ought reasonably to have known or suspected that any other person has committed—

(a) an offence under Part 1, 2, 3 or 4, or section 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2; or

(b) the offence of theft, fraud, extortion, forgery or uttering a forged document, involving an amount of R100 000 or more, must report such knowledge or suspicion or cause such knowledge or suspicion to be reported to any police official.

(2) Subject to the provisions of section 37(2), any person who fails to comply with subsection (1), is guilty of an offence.

(3) (a) Upon receipt of a report referred to in subsection (1), the police official concerned must take down the report in the manner directed by the National Commissioner, and forthwith provide the person who made the report with an acknowledgment of receipt of such report.

(b) The National Commissioner must within three months of the commencement of this Act publish the directions contemplated in paragraph (a) in the Gazette.

(4) For purposes of subsection (1) the following persons hold a position of authority, namely—

(a) the Director-General or head, or equivalent officer, of a national or provincial department;

(b) in the case of a municipality, the municipal manager appointed in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998);

(d) any head, rector or principal of a tertiary institution;

(e) the manager, secretary or a director of a company as defined in the Companies

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Act, 1973 (Act No. 61 of 1973), and includes a member of a close corporation as defined in the Close Corporations Act, 1984 (Act No. 69 of 1984):

(f) the executive manager of any bank or other financial institution;

(g) any partner in a partnership;

(h) any person who has been appointed as chief executive officer or an equivalent officer of any agency, authority, board, commission, committee, corporation, council, department, entity, financial institution, foundation, fund, institute, service, or any other institution or organisation, whether established by legislation, contract or any other legal means;

(i) any other person who is responsible for the overall management and control of the business of an employer; or

(j) any person contemplated in paragraphs (a) to (i), who has been appointed in an acting or temporary capacity.

Extraterritorial jurisdiction

35. (1) Even if the act alleged to constitute an offence under this Act occurred outside the Republic, a court of the Republic shall, regardless of whether or not the act constitutes an offence at the place of its commission, have jurisdiction in respect of that offence if the person to be charged—

(a) is a citizen of the Republic;

(b) is ordinarily resident in the Republic;

(c) was arrested in the territory of the Republic, or in its territorial waters or on board a ship or aircraft registered or required to be registered in the Republic at the time the offence was committed;

(d) is a company, incorporated or registered as such under any law, in the Republic; or

(e) any body of persons, corporate or unincorporated, in the Republic.

(2) Any act alleged to constitute an offence under this Act and which is committed outside the Republic by a person, other than a person contemplated in subsection (1), shall, regardless of whether or not the act constitutes an offence or not at the place of its commission, be deemed to have been committed also in the Republic if that—

(a) act affects or is intended to affect a public body, a business or any other person in the Republic;

(b) person is found to be in South Africa; and

(c) person is for one or other reason not extradited by South Africa or if there is no application to extradite that person.

(3) Any offence committed in a country outside the Republic as contemplated in subsection (1) or (2), is, for the purpose of determining the jurisdiction of a court to try the offence, deemed to have been committed—

(a) at the place where the accused is ordinarily resident; or

(b) at the accused person’s principal place of business.

(4) Where a person is charged with conspiracy or incitement to commit an offence or as an accessory after the offence, the offence is deemed to have been committed not only at the place where the act was committed, but also at every place where the conspirator, inciter or accessory acted or, in case of an omission, should have acted.

Repeal and amendment of laws and transitional provisions

36. (1) The laws specified in the Schedule are repealed or amended to the extent indicated in that Schedule.

(2) All criminal proceedings which immediately prior to the commencement of this Act were instituted in terms of the provisions of the Corruption Act, 1992 (Act No. 94 of 1992), and which proceedings have not been concluded before the commencement of this Act, shall be continued and concluded, in all respects, as if this Act had not been passed.

(3) An investigation or prosecution or other legal proceedings, in respect of conduct which would have constituted an offence under the Corruption Act, 1992, and which occurred after the commencement of that Act but before the commencement of this Act, may be concluded, instituted and continued as if this Act had not been passed.

Prevention and Combating of Corrupt Activities Act 12 of 2004

Sections

Relationships in

Document

Relationships out

Linked legislation

Government Gazette

REPUBLIC OF SOUTH AFRICA

THE PRESIDENCY

ACT

PREAMBLE

ARRANGEMENT OF SECTIONS

CHAPTER 1

DEFINITIONS AND INTERPRETATION

CHAPTER 2

OFFENCES IN RESPECT OF CORRUPT ACTIVITIES

Part 1: General offence of corruption

Part 2: Offences in respect of corrupt activities relating to specific persons

Part 3: Offences in respect of corrupt activities relating to receiving or offering of unauthorised gratification

Part 4: Offences in respect of corrupt activities relating to specific matters

Part 5: Miscellaneous offences relating to possible conflict of interest and other unacceptable conduct

Part 6: Other offences relating to corrupt activities

CHAPTER 3

INVESTIGATIONS REGARDING POSSESSION OF PROPERTY RELATING TO CORRUPT ACTIVITIES

CHAPTER 4

PRESUMPTIONS AND DEFENCES

CHAPTER 5

PENALTIES AND RELATED MATTERS

CHAPTER 6

REGISTER FOR TENDER DEFAULTERS

CHAPTER 7

MISCELLANEOUS MATTERS

SCHEDULE

CHAPTER 1

DEFINITIONS AND INTERPRETATION

Definitions

Interpretation

CHAPTER 2

Part 1: General offence of corruption

Part 2: Offences in respect of corrupt activities relating to specific persons

Offences in respect of corrupt activities relating to agents

6. Any—

Offences in respect of corrupt activities relating to members of legislative authority

7. (1) Any—

Offences in respect of corrupt activities relating to members of prosecuting authority

9. (1) Any—

Part 3: Offences in respect of corrupt activities relating to receiving or offering of unauthorised gratification

Offences of receiving or offering of unauthorised gratification by or to party to an employment relationship

10. Any person—

Part 4: Offences in respect of corrupt activities relating to specific matters

Offences in respect of corrupt activities relating to witnesses and evidential material during certain proceedings

Offences in respect of corrupt activities relating to contracts

Offences in respect of corrupt activities relating to procuring and withdrawal of tenders

Offences in respect of corrupt activities relating to auctions

Offences in respect of corrupt activities relating to sporting events

Offences of unacceptable conduct relating to witnesses

Intentional interference with, hindering or obstruction of investigation of offence

Part 6: Other offences relating to corrupt activities

Accessory to or after offence

Attempt, conspiracy and inducing another person to commit offence

CHAPTER 3

INVESTIGATIONS REGARDING POSSESSION OF PROPERTY RELATING TO CORRUPT ACTIVITIES

Investigation regarding property relating to corrupt activities

Defences

CHAPTER 5

PENALTIES AND RELATED MATTERS

Penalties

Authorisation by National Director, Deputy National Director or Director to institute proceedings in respect of certain offences

Endorsement of Register

CHAPTER 6

REGISTER FOR TENDER DEFAULTERS

Establishment of Register

Designation of Registrar

Powers, duties and functions of Registrar

Access to Register

Regulations pertaining to Register

CHAPTER 7

MISCELLANEOUS MATTERS

Duty to report corrupt transactions

Extraterritorial jurisdiction