WORKING DOCUMENT NO

WORKING DOCUMENT NO. 2 (12 SEPT 2002)

REPUBLIC OF SOUTH AFRICA

__________

PREVENTION OF CORRUPTION

BILL

__________

(As introduced in the National Assembly as a section 75 Bill; explanatory summary of the

Bill published in Government Gazette No 23336 of 18 April 2002) (The English text is the

official text of the Bill)

__________

(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B 19—2002] ISBN 0 621 32157 5

No. of copies printed .................................... 1 800

GENERAL EXPLANATORY NOTE:

_________ Words underlined with a solid line indicate insertions in existing enactments.

BILL

To provide anew for the prevention of corruption and related offences; 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, bribery and related offences endanger the stability and security of societies, undermine the values of democracy and morality, jeopardise social, economic and political development, free trade and the credibility of governments and provide a breeding ground for organised crime;

AND WHEREAS there are links between corruption and other forms of crime, in particular organised crime and economic crime;

AND WHEREAS corruption is a phenomenon that crosses national borders and affects all societies and economies, so that international cooperation is essential to prevent and control corruption and related offences;

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

AND WHEREAS it is desirable to unbundle the crime of corruption in terms of which various specific corrupt actions and corrupt practices are defined and prohibited,

BE 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 AND PENALTIES

3. General offence of corruptly accepting gratification

4. General offence of corruptly giving gratification

5. Offence of corruptly accepting gratification by or giving gratification to agent

6. Offence of corruptly accepting gratification by or giving gratification to political office bearers

6A Offence of corruptly accepting gratification by or giving gratification to members of judicial authority or prosecuting authority

7. Offences in respect of procuring and withdrawal of tenders

8. [Bribery] Corruption of public officer in relation to performing or not performing certain specific functions

8A Corruption in private sector

9. Corruption of witnesses

10. [Bribery] Corruption of foreign public officials

11. [Bribery] Corruption in relation to auctions

12. [Bribery for giving assistance in regard] Corruption in relation to contracts

13. Offence of [corruptly] using office or position for gratification

14. Corruption in relation to sporting events

14A. Corruption in relation to gambling games and games of chance

14B. Offence of acquisition of private interest in contract, agreement or investment in relation to public body

14C. Disclosure of information for undue gratification

15. [Offence of dealing with, using, holding, receiving or concealing gratification in relation to any offence] Accessory to or after an offence

16. Offences relating to corrupt accepting and giving of gratification

17. [Additional offences] Attempt, conspiracy and inducing another person to commit offence

17A. Giver and acceptor of gratification to be guilty of offence notwithstanding whether the act in relation to the gratification was performed or not, etc

18. Intentional interference with, hindering or obstruction of investigation of offence

19. Possession or control of property corruptly acquired by [public officer] person

20. Duty to report corrupt transactions

20A. Presumptions

20B Penalties

21. Extraterritorial [application of Act and] jurisdiction

22. Reinstatement of common law crime of bribery

CHAPTER 3

GENERAL PROVISIONS

23. Jurisdiction of magistrates’ courts

24. Repeal and amendment of laws

25. Interpretation of certain references

26. Short title

CHAPTER 1

DEFINITIONS AND INTERPRETATION

Definitions

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

(i) ["agent" includes any person employed by or acting for another, any trustee of an insolvent estate, the assignee of an estate assigned for the benefit or with the consent of creditors, the liquidator of a company which is being wound up, the executor of the estate of a deceased person, the legal representative of any person who is of unsound mind or is a minor or is otherwise under disability, any public officer or an officer serving in or under or acting for any public body, a trustee, an administrator or a subcontractor and any person appointed as an agent in terms of any law;]

Option 1: This option provides a definition in line with that used in the law of agency

"agent" means a person who is authorised to act on behalf of a principal and has agreed so to act, and who has power to affect the legal relations of his or her principal with a third party and includes, but is not limited to —

(a) any trustee of an insolvent estate;

(b) the assignee of an estate assigned for the benefit or with the consent of creditors;

(c) the liquidator of a company which is being wound up;

(d) the executor of the estate of a deceased person;

(e) the legal representative of any person who is of unsound mind or is a minor or is otherwise under disability;

(f) any public officer or an officer serving in or under or acting for any public body; or

(g) a trustee, an administrator or a subcontractor;

Option 2: Based on US legislation

"agent" means any authorised representative and includes a director, officer, employee or other person authorised to act on behalf of his or her principal;

(ii) "associate", in relation to a natural person, includes—

(a) any person who is an employee, agent, nominee or representative of such person;

(b) any person who manages the affairs of such person;

(c) any firm of which such person is a business partner or any person who is in charge or in control of the business or affairs of such firm;

(d) any juristic person whose board of directors acts in accordance with such person’s directions, instructions or influence; or

(e) a trust controlled and administered by such person;

(iii) "business" means any business, trade, profession, calling, industry or undertaking of 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 activity, and all the rights and liabilities arising from such activity;

(iiiA) "corruption" includes bribery, fraud and other related offences;

Option 1

(iv) "corruptly" means any conduct in contravention of [or against the spirit of] any common or statutory law, provision, rule, procedure, process, system, policy, practice, directive, order or any other term or condition pertaining to—

(a) any employment relationship;

(aA) any privileged relationship;

(b) any sporting event, including the contravention of 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;

(c) any agreement; or

(d) the performance of any function in whatever capacity;

Option 2

(iv) "corruptly" means any conduct in contravention of [or against the spirit of] any common or statutory law[, provision, rule, procedure, process, system, policy, practice, directive, order or any other term or condition] pertaining to—

(a) any [employment relationship] agreement;

(aA) any privileged relationship; or

[(c) any agreement; or

(d) the performance of any function in whatever capacity;]

(v) "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;

(vi) "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

(c) an official or agent of a public international organisation;

(vii) "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;

(c) any agency of any such country or territory or of a political subdivision of any such country or territory;

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

(viiB) "game of chance" includes a lottery, lotto, numbers game, scratch game, sweepstake, or sports pool;

(viii) "gratification" includes—

(a) money, whether in cash or otherwise; [or]

(aA) 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;

(b) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage;

(c) any office, [dignity] status, employment, contract of employment or services, [and] any agreement to give employment or render services in any capacity and residential or holiday accommodation;

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

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

(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, [or] influence or [pretended aid, vote, consent or influence] abstention from voting;

(j) any offer, undertaking or promise, whether conditional or unconditional, of any gratification within the meaning of paragraphs (a) to (i);

(viiiA) "inducement" means the giving or offering of any gratification to a person which is intended to assist, persuade, encourage, coerce or cause that person to do or not to do anything, and "induce" has a corresponding meaning;

(viiiB) "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 Control Act, 1985 (Act No. 1 of 1985);

[(ix) "Minister" means the Cabinet member responsible for the administration of justice;]

(x) "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;

(xi) ["partner" means a person who permanently lives with another person in a manner as if married;] "political office bearer" means a Deputy President, a Minister, a Deputy Minister, a member of the National Assembly, a permanent delegate, a Premier, a member of an Executive Council, a member of a provincial legislature, a traditional leader, a member of a provincial House of Traditional Leaders, a member of the National House of Traditional Leaders and a member of a Municipal Council;

(xii) "principal" includes—

(a) any employer;

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

(c) the estate of a deceased person and any person with a beneficial interest in the estate of a deceased person;

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

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

(xiii) "property" means money or any other movable, immovable, corporeal or incorporeal thing, whether situated in the Republic or elsewhere and includes any rights, privileges, claims, securities and any interest therein and all proceeds thereof;

(xiv) "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 in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any law or the common law;

(xv) "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

(c) an organisation that is—

(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);

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

(a) a public servant;

[(b) a member of Parliament, a provincial legislature or a municipal council;

(c) a member of the national or provincial executive authority;

(d) any member of the judicial authority or the prosecuting authority;]

[(e)](b) any person receiving any remuneration from public funds;

[(f)](c) where the public body is a corporation, the person who is incorporated as such,

but does not include—

(a) a political office bearer;

(b) any member of the judicial authority or the prosecuting authority;

[(xvii) "public service" means the public service referred to in section 1(1) of the Public Service Act, 1994 (Proclamation No. 103 of 1994), and includes—

(a) any organisational component contemplated in section 7(4) of that Act and specified in the first column of Schedule 2 to that Act;

(b) the National Defence Force;

(c) the National Intelligence Agency;

(d) the South African Secret Service;]

(xiii) "relative", in relation to a person, means—

(a) his or her spouse[, partner] or fiancé;

(b) his or her child, stepchild, parent or stepparent;

(c) his or her brother or sister or stepbrother or stepsister;

(d) a brother or sister of his or her spouse [or partner];

(e) the spouse [or partner] of any of the persons mentioned in paragraphs (b) to (d); or

(f) his or her foster parents and foster children;

(xviiA) "reward" means any reward whether monetary or otherwise;

(xix) "scheme in commerce" means any scheme carried out in whole or in part through the use in national or foreign commerce of any facility for transportation or communication;

(xx) "sporting event" includes[—

(a)] any event or contest in any sport, between individuals or teams, or in which animals or birds compete, and which is usually attended by the public and is governed by rules;

[(b) any gambling game as defined in section 1 of the National Gambling Act, 1996 (Act No. 33 of 1996); or

(c) any other game of chance which includes a lottery, lotto, numbers game, scratch game, sweepstake, or sports pool;]

(xxA) "spouse" means the partner of a person in—

(a) a marriage or customary union recognised in terms of the laws of the Republic;

(b) a union recognised as a marriage in accordance with the tenets of any religion;

(c) a same-sex or heterosexual union which is intended to be permanent;

[(xxi) "statutory authority" means any authority, whether consisting of a single person or a body of persons, established by law;]

(xxii) "undue gratification" means any gratification which is obtained in an improper manner and to which the person who has obtained the gratification is, in terms of his or her employment relationship, not entitled to.

Interpretation

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

(a) the 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.

(2) Nothing in Chapter 2 may be construed so as to limit prosecution under any other law.

CHAPTER 2

OFFENCES AND PENALTIES

General offence of corruptly accepting gratification

3. [(1)] Any person [is guilty of an offence if he or she] who, directly or indirectly, corruptly accepts or agrees or offers to accept [for himself or herself or for any other person] any gratification, whether for himself or herself or for the benefit of another person, as an inducement to do or not to do anything or as a reward for having done or not having done anything, is guilty of an offence .

[(2) A person convicted of an offence referred to in subsection (1) is liable to a fine or to imprisonment for a period not exceeding 15 years, or to both a fine and such imprisonment.

(3) Whenever a person is charged with the offence referred to in subsection (1), proof that that person, or someone else at the instance of that person, accepted or agreed to accept any gratification from a person—

(a) holding or seeking 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;

(b) 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

(c) acting on behalf of or related to a person contemplated in paragraph (a) or (b),

is, in the absence of evidence to the contrary which raises reasonable doubt, sufficient evidence that the person charged accepted or agreed to accept such gratification corruptly as an inducement or as a reward contemplated in subsection (1) if the State can show that despite having taken reasonable steps, it was not able with reasonable certainty to link the acceptance of or agreement to accept the gratification to any lawful motive on the part of the person charged.

(2) Whenever a person is charged with the offence referred to in subsection (1), proof that that person, or someone else at the instance of that person, accepted or agreed to accept any gratification from a person—

(a) holding or seeking 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;

(b) 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

(c) acting on behalf of or related to a person contemplated in paragraph (a) or (b),

is, in the absence of evidence to the contrary which raises reasonable doubt, sufficient evidence that the person charged accepted or agreed to accept such gratification corruptly as an inducement or as a reward contemplated in subsection (1) if the State can show that despite having taken reasonable steps, it was not able with reasonable certainty to link the acceptance of or agreement to accept the gratification to any lawful motive on the part of the person charged.

(4) Without derogating from the provisions of subsection (3), where a person whose duties include the detection, prosecution or punishment of offenders is charged with the offence referred to in subsection (1) arising from—

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

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

(c) the investigation of an alleged offence,

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

General offence of corruptly giving gratification

4. [(1)] Any person [is guilty of an offence if he or she] who, directly or indirectly, corruptly gives or agrees or offers to give to any other person[, whether for the benefit of that person or of another person,] any gratification, whether for the benefit of that other person or of another person, as an inducement to do or not to do anything or as a reward for having done or not having done anything, is guilty of an offence.

[(2) A person convicted of an offence referred to in subsection (1), is liable to a fine or to imprisonment for a period not exceeding 15 years, or to both a fine and such imprisonment.

(3) Whenever a person is charged with the offence referred to in subsection (1), proof that that person, or someone else at the instance of that person, gave or agreed to give any gratification to a person—

(a) holding or seeking 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 who benefited was serving as an official;

(b) 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 who benefited or public body, private organisation, corporate body or other organisation or institution in which the person who benefited was serving as an official; or

(c) acting on behalf of or related to a person contemplated in paragraph (a) or (b),

is, in the absence of evidence to the contrary which raises reasonable doubt, sufficient evidence that the person charged gave or agreed to give such gratification corruptly as an inducement or as a reward contemplated in subsection (1) if the State can show that, despite having taken reasonable steps, it was not able with reasonable certainty to link the giving of, or agreement to give, the gratification to any lawful motive on the part of the person charged.]

Offence of corruptly accepting gratification by or giving gratification to agent

5. (1) Any agent [is guilty of an offence if the agent] who, in relation to his or her principal’s affairs or business, directly or indirectly, corruptly—

(a) accepts or agrees or offers to accept [from any person] any gratification, whether for himself or herself or for the benefit of another person, as an inducement to do or not to do anything or as a reward for having done or not having done anything;

(b) gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or of another person, as an inducement to do or not to do anything or as a reward for having done or not having done anything,

is guilty of an offence.

(2) Any person [is guilty of an offence if that person] who, in relation to the affairs or business of an agent’s principal, directly or indirectly, corruptly—

(a) accepts or agrees or offers to accept from an agent any gratification, whether for himself or herself or for the benefit of another person, as an inducement to do or not to do anything or as a reward for having done or not having done anything;

(b) gives or agrees or offers to give any gratification to that agent, whether for the benefit of the agent or of another person, as an inducement to do or not to do anything or as a reward for having done or not having done anything,

is guilty of an offence.

[(3) A person who knowingly gives to an agent, or an agent who knowingly uses, any receipt, account or other document in respect of which the principal has an interest and which contains any statement which is false or erroneous or defective in any material respect and which to his or her knowledge is intended to mislead the principal or any other person is guilty of an offence.

(4) A person convicted of an offence referred to in subsection (1), (2) or (3) is liable to a fine or to imprisonment for a period not exceeding 15 years, or to both a fine and such imprisonment.

(5) For purposes of subsection (1), it is not a valid defence to contend that the agent—

(a) did not have the power, right or opportunity to perform or not to perform any act contemplated in that subsection;

(b) accepted the gratification without intending to perform or not to perform the act in relation to which the gratification was offered; or

(c) failed to perform or not to perform the act in relation to which the gratification was offered.

(6) Whenever any person is charged with an offence referred to in subsection (2), and it is proved that he or she corruptly gave or agreed to give any gratification to any agent as an inducement for doing or as a reward for not having done anything, he or she is guilty of an offence under that subsection regardless of whether the agent had the power, right or opportunity to perform, or not to perform the act contemplated in that subsection.]

[Offence of fraudulent acquisition of private interest

6. (1) Any person employed in the public service who knowingly acquires or holds, directly or indirectly, otherwise than as a member of a registered joint stock company consisting of more than 20 persons, a private interest in any contract, agreement or investment emanating from or connected with the department, component or office in which he or she is employed or which is made on account of the public service is guilty of an offence.

(2) A person convicted of an offence referred to in subsection (1) is liable to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment.]

Offence of corruptly accepting gratification by or giving gratification to political office bearers

6. (1) Any political office bearer who, in relation to the performance of his or her duties and functions as such, directly or indirectly, {corruptly} accepts or agrees or offers to accept any gratification, whether for himself or herself or for the benefit of another person, as an inducement to do or not to do anything or as a reward for having done or not having done anything, is guilty of an offence.

(2) Any person who, in relation to the performance of the duties and functions of a political office bearer, directly or indirectly, {corruptly} gives or agrees or offers to give any gratification to such an office bearer, whether for the benefit of that office bearer or of another person, as an inducement to do or not to do anything or as a reward for having done or not having done anything, is guilty of an offence.

Offence of corruptly accepting gratification by or giving gratification to members of judicial authority or prosecuting authority

6A. (1) Any member of the judicial authority or prosecuting authority who, in relation to the performance of his or her duties and functions as such, directly or indirectly, {corruptly} accepts or agrees or offers to accept any gratification, whether for himself or herself or for the benefit of another person, as an inducement to do or not to do anything or as a reward for having done or not having done anything, is guilty of an offence.

(2) Any person who, in relation to the performance of the duties and functions of a member of the judicial authority or prosecuting authority, directly or indirectly, {corruptly} gives or agrees or offers to give any gratification to such a member, whether for the benefit of the member or of another person, as an inducement to do or not to do anything or as a reward for having done or not having done anything, is guilty of an offence.

Offences in respect of procuring and withdrawal of tenders

7. [(1)] Any person [is guilty of an offence if that person] who, in relation to a contract for performing any work, providing any service, supplying any article, material or substance or performing any other act, [corruptly,] directly or indirectly—

(a) accepts or agrees or offers to accept any gratification,whether for himself or herself or for the benefit of another person, as an inducement or as a reward for awarding a tender to a particular 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 of another person, as an inducement to or as a reward for awarding or having awarded a tender to a particular person;

(c) notwithstanding the acceptance of or offer to accept any gratification, gives any other person inside information in respect of a tender so as to enable such other person to tender or not to tender in a particular way in order to obtain an unfair advantage in the tender process;

[(a)](d)with intent to obtain such contract [from any public body, private organisation, corporate body or other organisation or institution, offers] gives or agrees or offers to give any gratification to any person who has made a tender for the contract, whether for the benefit of that tenderer or any other person, as an inducement or as a reward for his or her withdrawing the tender;

[(b)](e) accepts or agrees or offers to accept any gratification,whether for himself or herself or for the benefit of another person, as an inducement for withdrawing a tender made by him or her for such contract; [or]

[(c)](f) upon an invitation to tender for such contract, accepts or agrees or offers to accept any gratification as an inducement for making [makes] an offer for that tender which has as its aim to cause the tenderer or person organising the tender to accept a particular offer;

is guilty of an offence.

8. (1) Any person [is guilty of an offence if he or she] who gives or agrees or offers to give [to any public officer] any gratification to any public officer, whether for the benefit of that public officer or of another person, as an inducement to or as a reward for—

(a) voting or not voting at any meeting of a public body;

(b) performing, [or] not performing or not adequately performing any official function;

(c) expediting, delaying, hindering or preventing the performance of an official act, whether by that public officer or by any other public officer;

(d) aiding, assisting or favouring any 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; or

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

[regardless of whether the public officer had the power, right or opportunity to act or not to act in a manner contemplated in paragraphs (a) to (f)]

is guilty of an offence.

[(2) A public officer is guilty of an offence if he or she who accepts or agrees to accept any gratification, as an inducement to, or as a reward for, performing or not performing any act or omission referred to in subsection (1)(a) to (f), regardless of whether the public officer had the power, right or opportunity so to act or so not to act.

(3) Any person convicted of an offence referred to in subsection (1) or (2) is liable to a fine or to imprisonment for a period not exceeding 15 years, or to both a fine and such imprisonment.]

Corruption in private sector

8A. Any person who, in the course of business, directly or indirectly, {corruptly}—

(a) accepts or agrees or offers to accept any {undue} gratification, whether for himself or herself or for the benefit of another person, as an inducement to do or not to do anything or as a reward for having done or not having done anything in relation to his or her official duties and functions in any employment relationship;

(b) gives or agrees or offers to give to any other person any {undue) gratification, whether for the benefit of that other person or of another person, as an inducement to do or not to do anything or as a reward for having done or not having done anything in relation to that other person's official duties and functions in any employment relationship,

is guilty of an offence.

Corruption of witnesses

9. (1) Any person [is guilty of an offence if he or she] who, directly or indirectly, [corruptly] gives or agrees or offers to give any gratification to any other person, whether for the benefit of that other person or of another person, with the intent to—

(a) influence 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;

(b) influence that person or another witness to absent himself or herself from such trial, hearing or other proceedings or to withhold [true] testimony,

is guilty of an offence.

(2) Any person [is guilty of an offence if he or she] who, directly or indirectly,[ corruptly] accepts or agrees or offers to accept any gratification, whether for himself or herself or for the benefit of another person, in return for—

(a) testifying in a particular or 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; or

(b) not testifying at any such trial, hearing or proceedings,

is guilty of an offence.

[(3) A person convicted of an offence referred to in subsection (1) or (2) is liable to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment.]

[Bribery] Corruption of foreign public officials

10. [(1)] Any person [is guilty of an offence if he or she in order to obtain or retain, business or an improper advantage in the course of business, corruptly] who, directly or indirectly, gives or agrees or offers to give a gratification, [whether directly or indirectly], whether for himself or herself or for the benefit of another person, to a foreign public official in order to—

(a) [as consideration for] induce such official [performing or failing to perform] to do or not to do anything or as a reward for having done or not having done anything in relation to any of his or her public functions or official duties; or

(b) to induce that official to use his or her position to influence any acts or decisions of the foreign state or public international organisation concerned; and

(c) to obtain or retain a contract, business or an improper advantage in the conduct of business,

is guilty of an offence.

[(2) A person convicted of an offence referred to in subsection (1) is liable to a fine or to imprisonment for a period not exceeding 15 years, or to both a fine and such imprisonment.]

[Bribery] Corruption in relation to auctions

11. [(1)] Any person [is guilty of an offence if he or she] who [corruptly]—

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

(i) refrain or as a reward for having refrained from bidding at any auction; or

(ii) participate in the bidding process at any auction in such a manner so as 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;

(b) accepts or agrees or offers to accept any gratification, whether for himself or herself or for the benefit of another person, as an inducement to—

(i) refrain or as a reward for having refrained from bidding at any auction;

(ii) participate at any 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;

(iii) conduct the bidding process at any auction in such a manner so as to favour or prejudice a specific person,

is guilty of an offence.

[(2) A person convicted of an offence referred to in subsection (1)(a) or (b) is liable to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment].

[Bribery for giving assistance in regard] Corruption in relation to contracts

12. (1) Any person [is guilty of an offence if he or she] who [corruptly] gives or agrees or offers to give any gratification to any other person, whether for the benefit of that other person or of another person, as an inducement to give or as a reward for giving or having given assistance in, or as an inducement [to use] for influencing or as a reward for [using or having used influence in] having influenced—

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

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

is guilty of an offence.

(2) Any person [is guilty of an offence if he or she] who [corruptly] accepts or agrees to or offers to accept any gratification, whether for himself or herself or for the benefit of another person, as an inducement to give or as a reward for giving or having given assistance or as an inducement to use or as a reward for using or having used influence in—

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

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

is guilty of an offence.

[(3) Any person convicted of an offence referred to in subsection (1) or (2) is liable to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment.]

(3) Any person who, in order to obtain or retain a contact 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 of another person—

(a) for the purpose of promoting the election of a candidate or a category or party of candidates as a political office bearer or political office bearers;

(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 political office bearers,

is guilty of an offence.

Offence of [corruptly] using office or position for gratification

13. (1) Any public officer who, directly or indirectly, [corruptly] uses his or her office or position in a public body in order to obtain any undue gratification for himself, herself or any other person is guilty of an offence.

[(2) A person convicted of an offence referred to in subsection (1) is liable to a fine or to imprisonment for a period not exceeding seven years, or to both a fine and such imprisonment.

(3)](2) For the purposes of subsection (1), proof that a public officer in a public body has made a decision or taken action in relation to any matter in which such public officer, or any relative or associate of his or hers, has an interest, whether directly or indirectly, is, in the absence of evidence to the contrary which raises reasonable doubt, sufficient evidence that the public officer has [corruptly] used his or her office or position in the public body in order to obtain an undue gratification, if the State can show that despite having taken reasonable steps it was not able with reasonable certainty to link the acceptance of or agreement to accept the gratification to any lawful motive on the part of the public [official] officer.

Corruption in relation to sporting events

14. [(1)] Any person [is guilty of an offence if he or she] who, directly or indirectly[, corruptly] and knowingly—

(a) accepts or agrees or offers to accept any {undue} gratification, whether for himself or herself or for the benefit of another person, as an inducement—

(i) to influence or as a reward for influencing or having influenced the run of play or the outcome of a sporting event;

(ii) for failing to report the conduct referred to in paragraph (b)(ii), 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;

(b) gives or agrees or offers to give to any other person any {undue} gratification, whether for the benefit of that other person or of another person, as an inducement—

(i) to influence or as a reward for influencing or having influenced the run of play or the outcome of a sporting event; or

(ii) for engaging in any conduct which constitutes a threat to or undermines the integrity of any sporting event;

(c) carries into effect any scheme in commerce to influence, in any way, by corruption the run of play or outcome of a sporting event,

is guilty of an offence.

[(2) A person convicted of an offence referred to in subsection (1) is liable to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment.]

Corruption in relation to gambling games or games of chance

14A. Any person who, directly or indirectly, and knowingly—

(a) accepts or agrees or offers to accept any gratification, whether for himself or herself or for the benefit of another person, as an inducement to influence or as a reward for influencing or having influenced the outcome of a gambling game or a game of chance;

(b) gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or of another person, as an inducement to influence or as a reward for influencing or having influenced the outcome of a gambling game or a game of chance; or

(c) carries into effect any scheme in commerce to influence, in any way, by corruption the outcome of a gambling game or a game of chance

is guilty of an offence.

Offence of [fraudulent] acquisition of private interest in contract, agreement or investment in relation to public body

[6.(1)] 14B. Any person employed in [the public service] a public body who knowingly acquires or holds, [directly or indirectly,] otherwise than as a [member of a registered joint stock company consisting of more than 20 persons] shareholder of a listed company, a private interest in any contract, agreement or investment emanating from or connected with the department, component or office in which he or she is employed or which is made on account of the public [service] body is guilty of an offence.

(2) [A person convicted of an offence referred to in subsection (1) is liable to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment] The institution of a prosecution for the offence referred to in subsection (1) must be authorised—

(a) by the National Director of Public Prosecutions, a Deputy National Director of Public Prosecutions or a Director of Public Prosecutions; and

(b) only after the person concerned has been afforded an opportunity by the investigating or prosecuting authority to explain how he or she acquired the private interest concerned.

Disclosure of information for undue gratification

14C. (1) Any person who—

(a) accepts or agrees or offers to accept any undue gratification, whether for himself or herself or for the benefit of another person, as an inducement or as a reward for corruptly—

(i) disclosing or having disclosed any information to any other person; or

(ii) obtaining or having obtained such information from any other person;

(b) gives or agrees or offers to give to any other person any undue gratification, whether for the benefit of that other person or of another person, as an inducement or as a reward to corruptly—

(i) disclose or having disclosed information to any other person; or

(ii) obtain or having obtained such information from any other person,

is guilty of an offence.

[Offence of dealing with, using, holding, receiving or concealing gratification in relation to any offence] Accessory to or after an offence

15. [(1)] Any person [is guilty of an offence if he or she] who, 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 any property; or

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

which forms part of any gratification which was the subject of an offence in terms of this Chapter, is guilty of an offence.

[(2) A person convicted of an offence referred to in subsection (1) is liable to a fine or to imprisonment for a period not exceeding seven years, or to both a fine and such imprisonment.]

Offences relating to corrupt accepting and giving of gratification

16. Any person who—

(a) demands, solicits, receives or in any manner whatsoever obtains or offers or promises to receive or obtain any gratification under the circumstances and in the manner contemplated in section 3(1), 5(1), 7(1)(b), 8(2), 9(2), 11(1)(b), 12(3) or 14(1)(a); or

(b) lends, grants, confers, procures, offers or promises to lend, grant, confer or procure any gratification under the circumstances and in the manner contemplated in section 4(1), 5(2) or (3), 8(1), 9(1), 10(1), 11(1)(a), 12(1) or 14(1)(b),

is guilty of the offence contemplated in the section in question as if he or she had corruptly accepted or agreed or offers to accept a gratification or had corruptly given or agreed or offered to give a gratification, as the case may be[, and on conviction is liable to the punishment prescribed for such offence].

[Additional offences] Attempt, conspiracy and inducing another person to commit offence

17. [(1)] Any person [is guilty of an offence if he or she] who—

(a) attempts to commit an offence in terms of this Chapter;

(b) conspires with any other person to commit an offence in terms of this Chapter;

(c) aids, abets, induces, incites, instigates, instructs or commands another person to commit an offence under this Chapter,

is guilty of an offence.

Giver and acceptor of gratification to be guilty of offence notwithstanding whether act in relation to the gratification was performed or not, etc

17A. (1) Whenever a person is charged with an offence under this Chapter and it is proved that he or she accepted or agreed or offered to accept any gratification and having knowledge that the gratification was given or offered as an inducement to do or not to do anything or as a reward for having done or not having done anything, it is not a valid defence 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 or offered;

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

(c) failed to perform or not to perform the act in relation to which the gratification was given or offered.

(2) Whenever any person is charged with an offence under this Chapter, and it is proved that he or she corruptly gave or agreed or offered to give any gratification to any other person as an inducement for doing or as a reward for not having done anything, it is not a valid defence to contend that that other person did not have the power, right or opportunity to perform or not to perform the act in relation to which the gratification was given or offered.

Intentional interference with, hindering or obstruction of investigation of offence

18. [(1)] Any person [is guilty of an offence if he or she] who, at any stage, with intent to defraud or to conceal an offence in terms of this Act 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 [which belongs to or is in the possession of his or her employer, or has been received by him or her on account of his or her employment, 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

(c) omits or is privy to omitting any information from any such book, document, account or electronic device,

is guilty of an offence.

[(2) A person convicted of an offence referred to in subsection (1) is liable to imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment.]

Possession or control of property [corruptly] acquired by [public officer] person

19. (1) Any [public officer is guilty of an offence if he or she] person who is in possession or control of property or resources which have been acquired [corruptly] as a result of a contravention of this Act, is guilty of an offence.

(2) Evidence that a [public officer] person—

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

(b) is in control of resources or property disproportionate to his or her present or past lawful sources of income,

is, in the absence of evidence to the contrary which raises a reasonable doubt, sufficient proof that the property or resources have been acquired [corruptly] as a result of a contravention of this Act.

(3) Whenever a person is charged with an offence referred to in subsection (1) and the

court is satisfied that—

(a) the accused placed the property or resources in the possession or control of another person for a reason other than in the ordinary course of business; and

(b) the accused, by virtue of the closeness of his or her relationship with the other person, still has access to and can use the property or resources,

such circumstances are, in the absence of evidence to the contrary which raises a reasonable doubt, sufficient evidence that the property or resources have been acquired [corruptly] as a result of a contravention of this Act.

(4) The institution of a [A] prosecution for the offence referred to in subsection (1) [may only be instituted] must be authorised—

(a) by the National Director of Public Prosecutions. a Deputy National Director of Public Prosecutions or a Director of Public Prosecutions [or a member of the prosecuting authority authorised in writing by the National Director of Public Prosecutions]; and

(b) only after the [public officer] person concerned has been afforded an opportunity by the prosecuting authority to explain, whether personally or through a legal representative, how he or she acquired the property or resources concerned.

(5) A person who gives an explanation in terms of subsection (4)(b) may have his or her legal representative present.

Option 2: As in the original draft and amended

19. (1) Any person who—

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

(b) is in control of pecuniary resources or property disproportionate to his or her present or past lawful sources of income,

is, unless he or she gives a satisfactory explanation to the court as to how he or she was able to maintain such a standard of living or how such pecuniary resources or property came under his or her control, guilty of an offence.

(2) Whenever a person is charged with an offence in terms of this Chapter, the fact that the accused person is in possession, for which he or she cannot satisfactory account, of pecuniary resources or property disproportionate to his or her present or past sources of income, or that he or she had, at or about the time of the alleged offence, obtained an accretion to his or her pecuniary resources or property for which he or she cannot satisfactory account, may be proved and may be taken into consideration by the court as corroborating the testimony of any witness in the trial that the accused person accepted or obtained or agreed or offered to accept or attempted to obtain any gratification and as showing that the gratification was accepted or obtained or agreed or offered to be accepted or attempted to be obtained corruptly as an inducement or reward.

(3) Whenever a person is charged with an offence in terms of subsection(1), or for the purposes of the application of subsection (2), the court is satisfied that, having regard to the closeness of his or her relationship to the accused person and to other circumstances, there is reason to believe that any person was in possession of or was holding pecuniary resources or property in trust for or otherwise on behalf of the accused person or acquired such resources or property as a gift from the accused person, such circumstances shall, in the absence of evidence to the contrary which raises reasonable doubt, be sufficient evidence that such resources or property was in the possession of or control of the accused person: Provided that the State can show that despite the taking of reasonable steps, it was not able with reasonable certainty to link the possession or holding of such resources or property to any other reasonable excuse.

(4) The institution of a prosecution for the offence referred to in subsection (1) must be authorised—

(a) by the National Director of Public Prosecutions. a Deputy National Director of Public Prosecutions or a Director of Public Prosecutions; and

(b) only after the person concerned has been afforded an opportunity by the prosecuting authority to explain, whether personally or through a legal representative, how he or she acquired the property or resources concerned.

(5) A person who gives an explanation in terms of subsection (4)(b) may have his or her legal representative present.

Option 3: Botswana and Lesotho Legislation

(1) The head of the Directorate of Special Operations or any special investigator authorised in writing thereto by him or her, may investigate any person where there are reasonable grounds to suspect that that person—

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

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

(2) Any person who fails to give a satisfactory explanation to the investigator conducting the investigation under subsection (1) as to how he or she was able to maintain such a standard of living or how such pecuniary resources or property came under his or her control or possession, is guilty of an offence.

Duty to report corrupt transactions

20. (1) Any [public officer to whom any gratification is promised, offered, given or lent in] person who becomes aware of a contravention of any provision of this Chapter must, as soon as possible, report such fact, together with the name, if known, of the person or persons concerned to [his or her supervisor or at his or her] the nearest police station, law enforcement agency, any other competent authority or to any member of the prosecuting authority.

[(2) If any gratification has been demanded, solicited, accepted, received or obtained from any person in contravention of any provision of this Chapter, or if an attempt has been made to demand, solicit, accept, receive or obtain any gratification from any person in contravention of any provision of this Chapter, such person must, as soon as possible, report such fact, together with the name, if known, of the other person or persons involved at his or her nearest police station.]

[(3)](2) Any person who fails to comply with subsection (1) is guilty of an offence [and liable on conviction to a fine or to imprisonment for a period not exceeding three years, or to both a fine and such imprisonment].

(3) The institution of a prosecution for the offence referred to in subsection (2) must be authorised—

(a) by the National Director of Public Prosecutions, a Deputy National Director of Public Prosecutions or a Director of Public Prosecutions; and

(b) only after the person concerned has been afforded an opportunity by the prosecuting authority to explain, whether personally or through a legal representative, why he or she failed to report in terms of subsection (1).

Presumptions

20A.

Option 1: Previously clause 3(2), now clause 20A(1)

(1) Whenever a person is charged with an offence under this Chapter, proof that that person, or someone else at the instance of that person, accepted or agreed or offered to accept any gratification from a person—

(a) holding or seeking 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;

(b) 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

(c) acting on behalf of or related to a person contemplated in paragraph (a) or (b),

is, 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 the gratification to any lawful motive on the part of the person charged, in the absence of evidence to the contrary which raises reasonable doubt, sufficient evidence that the person charged accepted or agreed or offered to accept such gratification corruptly as an inducement to do or not to do anything or as a reward for having done or not having done anything.

Option 2: Combination of previous clause 3(2) and (3) and deletion of clause 3(3). Now clause 20A(1)

(c) acting on behalf of or related to a person contemplated in paragraph (a) or (b),

(d) whose duties include the detection, investigation, prosecution or punishment of offenders arising from—

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

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

(ii) the investigation of an alleged offence,

(aa) that the person charged accepted or agreed or offered to accept such gratification corruptly as an inducement to do or not to do anything or as a reward for having done or not having done anything; and

(bb) in the case of paragraph (d), that the accused person believed that the alleged offence contemplated in subparagraphs (i). (ii)and (iii) of that paragraph or any other offence had been committed.

(2) Without derogating from the provisions of subsection (1), where a person whose duties include the detection, investigation, prosecution or punishment of offenders is charged with the offence referred to in subsection (1) 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

(c) the investigation of an alleged offence,

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

Penalties

20B. (1) Any person who is convicted of an offence referred to in—

(a) sections 3(1), 4(1),5(1), 6(1), 6A(1), and (2), 7, 8, 8A, 9(1) and (2), 10, 11, 12(1),(2) and (3), 14, 14A, 14B,14C, 15,16, 17, 18, 19(1) and 20(2), is liable—

(i) in the case of a sentence to be imposed by a High Court, to imprisonment for life or to any other penalty which may lawfully be imposed for the offence of bribery;

(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 25 years, or to both a fine and such imprisonment;

(b) sections 13(1) and 15, is liable to a fine or to imprisonment for a period not exceeding 15 years, or to both a fine and such imprisonment.

(2) A person convicted of an offence referred to in section 17, 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 or commanded another person to commit.

(3) Notwithstanding subsections (1) and (2) or any other law, a regional court or a High Court, including a High Court to which a matter has been referred under subsection (11) for sentence, must in respect of a person who has been convicted of an offence referred to in subsection (1)(a)(i)—

(a) involving amounts of more than R500 000,00;

(b) involving amounts of more than R100 000,00, if it is proved that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or

(c) if it is proved that the offence was committed by any law enforcement officer—

(i) involving amounts of more than R10 000,00; or

(ii) as a member of a group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy,

sentence the person, in the case of—

(aa) a first offender, to imprisonment for a period not less than 15 years;

(bb) a second offender of any such offence, to imprisonment for a period not less than 20 years; and

(cc) a third or subsequent offender of any such offence, to imprisonment for life or for a period not less than 25 years, as the case may be.

Provided that the maximum sentence that a regional court may impose in terms of this subsection may not be more than five years longer than the minimum sentence that it may impose in terms of this subsection.

(4) 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.

(5) (a) If any court referred to in subsection (3) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it must enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.

(b) If any court referred to in subsection (3) decides to impose a sentence prescribed in those subsections upon a child who was 16 years of age or older, but under the age of 18 years, at the time of the commission of the act which constituted the offence in question, it must enter the reasons for its decision on the record of the proceedings.

(6) Any sentence contemplated in subsection (3) must be calculated from the date of sentence.

(7) The operation of a sentence imposed in terms of subsection (3) may not be suspended as contemplated in section 297(4) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

(8) The provisions of subsection (3) are not applicable in respect of a child who was under the age of 16 years at the time of the commission of the act which constituted the offence in question.

(9) If in the application of subsection (3) the age of a child is placed in issue, the onus is on the State to prove the age of the child beyond reasonable doubt.

(10) For the purposes of subsection (3), "law enforcement officer" includes—

(a) a member of the National Intelligence Agency or the South African Secret Service established under the Intelligence Services Act, 1994 (Act No. 38 of 1994); and

(b) a correctional official of the Department of Correctional Services or a person authorised under the Correctional Services Act, 1998 (Act No. 111 of 1998).

(11) The provisions of section 52 of the Criminal Law Amendment Act, 1997(Act No. 105 of 1997), apply, with the necessary changes, in relation to a matter which has been referred to the High Court for sentence.

Extraterritorial [application of Act and] jurisdiction

21. [(1) An act constituting an offence in terms of this Act is also an offence if it is committed in any country outside the Republic by any—

(a) South African citizen or a person domiciled in the Republic, whether the act is an offence or not at the place of its commission; or

(b) foreigner, if—

(i) the act constituted an offence under the law in force in that country;

(ii) that foreigner is found to be in the Republic; and

(iii) that foreigner is for one or other reason not extradited.

(2) Any offence committed in a country outside the Republic as contemplated in subsection (1) is deemed to have been committed in the Republic.

(3) 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.

(4) The acquittal or the conviction of an accused person by a foreign court of law on a criminal charge similar to a charge referred to in this Act, which would be a bar to subsequent charges against such accused person for the same offence if committed in the Republic, is a bar to further proceedings against him or her under any law relating to the extradition of persons, in respect of the same offence, outside the Republic.]

(1) Any act constituting an offence under this Act and which is committed outside the Republic by a person who—

(a) at the time of the act was a South African citizen or was domiciled in the Republic; or

(b) at any time after the act became a South African citizen,

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.

(2) Any act constituting an offence under this Act and which is committed outside the Republic by a person who at the time of the act was a foreigner, 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 intend to affect any person or business in the Republic;

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

(c) that foreigner is for one or other reason not extradited.

Reinstatement of common law crime of bribery

22. The common law crime of bribery, which was repealed by section 4 of the Corruption Act, 1992 (Act No. 94 of 1992), is hereby reinstated.

CHAPTER 3

GENERAL PROVISIONS

Jurisdiction of magistrates’ courts

23. Any magistrate’s court has jurisdiction to impose any penalty mentioned in this

Act.

Repeal and amendment of laws

24. (1) The Corruption Act, 1992 (Act No. 94 of 1992), is hereby repealed.

(2) The Criminal Procedure Act, 1977 (Act No. 51 of 1977), is hereby amended by the

insertion after section 269 of the following section:

‘‘Bribery and statutory corruption

269A. If evidence on a charge of common law bribery, an attempt to commit common law bribery or a charge in terms of any provision of Chapter 2 of the Prevention of Corruption Act, 2002, does not prove the crime or offence charged but—

(Aa) proves the crime of theft;

(a) proves the crime of fraud;

(b) proves the crime of extortion;

(c) in the case of a charge of common law bribery, proves an offence contemplated in Chapter 2 of the Prevention of Corruption Act, 2002; or

(d) in the case of a charge in terms of Chapter 2 of the Prevention of Corruption Act, 2002, proves the common law crime of bribery,

the accused may be found guilty of the crime or offence so proved.’’.

(3) The Criminal Law Amendment Act, 1997(Act No. 105 of 1997), is hereby amended by the substitution for the fifth paragraph of Part II of Schedule 1 of the following paragraph:

"Any offence relating to exchange control, [corruption,] extortion, fraud, forgery, uttering or theft—

(a) involving amounts of more than R500 000,00;

(c) if it is proved that the offence was committed by any law enforcement officer—

(i) involving amounts of more than R10 000,00; or

(ii) as a member of a group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy.".

Interpretation of certain references

25. Any reference in any law to the ‘‘Prevention of Corruption Act, 1958’’, the ‘‘Prevention of Corruption Act, 1958 (Act No. 6 of 1958)’’, the ‘‘Corruption Act, 1992’’ or the ‘‘Corruption Act, 1992 (Act No. 94 of 1992)’’, in relation to an offence in terms of those Acts, must, unless the context indicates otherwise, be construed as a reference to any corresponding offence contemplated in Chapter 2 of this Act.

Short title

26. This Act is called the Prevention of Corruption Act, 2002.

Note:

1. To date no feedback has been received from the Special Investigating Unit and accordingly their recommended provisions have not been included in the Bill.

2. An opinion is still awaited from the Office of the Chief State Law Adviser in respect of "blacklisting".