PREVENTION OF CORRUPT ACTIVITIES BILL

WORKING DOCUMENT NO. 5 (MAY 2003)

REPUBLIC OF SOUTH AFRICA

__________

PREVENTION OF CORRUPT ACTIVITIES

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

BILL

To provide anew for the prevention of corrupt activities and 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 corrupt activities 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 corrupt activities 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 regional and international cooperation is essential to prevent and control corruption and related corrupt activities;

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 the Southern African Development Community Protocol Against Corruption has reaffirmed the need to eliminate scourges of corruption through the adoption by member states of effective preventive and deterrent measures by strictly enforcing legislation against all types of corruption;

AND WHEREAS it is desirable to unbundle the crime of corruption in terms of which various specific corrupt activities 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

PROHIBITIONS IN RESPECT OF CORRUPT ACTIVITIES

Part 1: General prohibitions

3. General prohibitions in respect of corrupt acceptance of gratification

4. General prohibitions in respect of corrupt giving of gratification

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

5. Prohibitions in respect of corrupt activities relating to public officers

6. Prohibitions in respect of corrupt activities by and against persons in the private sector

7. Prohibitions in respect of corrupt activities relating to agents

8. Prohibitions in respect of corrupt activities relating to members of legislative authority

9. Prohibitions in respect of corrupt activities relating to members of judicial authority

10. Prohibitions in respect of corrupt activities relating to members of prosecuting authority

11. Prohibitions in respect of corrupt activities relating to witnesses

12. Prohibitions in respect of corrupt activities relating to foreign public officials

Part 2: Prohibitions in respect of corrupt activities relating to specific matters

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

14. Prohibitions in respect of corrupt activities relating to auctions

15. Prohibitions in respect of corrupt activities relating to contracts

16. Prohibitions in respect of corrupt activities relating to sporting events

17. Prohibitions in respect of corrupt activities relating to gambling games or games of chance

18. Prohibitions in respect of corrupt activities relating to acquisition of private interest in contract, agreement or investment of public body

19. Prohibitions in respect of corrupt activities relating to disclosure of information for gratification

20. Prohibitions in respect of corrupt activities relating to acceptance and giving of gratification

21. Accessory to or after an offence

CHAPTER 3

OFFENCES, PENALTIES AND RELATED MATTERS

22. Offences and penalties

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

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

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

CHAPTER 4

INVESTIGATIONS REGARDING POSSESSION OF PROPERTY RELATING TO CORRUPT ACTIVITIES

26. Investigations regarding possession of property relating to corrupt activities

CHAPTER 5

MISCELLANEOUS MATTERS

27. Duty to report corrupt transactions

28. Presumptions

29. Extraterritorial jurisdiction

30. Reinstatement of common law crime of bribery

31. Repeal and amendment of laws

32. Short title

CHAPTER 1

DEFINITIONS AND INTERPRETATION

Definitions

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

(i) "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) "animal"means any mammal, bird, fish, reptile or amphibian which is a member of the phylum vertebrates;

(iii) "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;

(iv) "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;

(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; or

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

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

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

(x) "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;

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

(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; or

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

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

(xi) "inducement" means the giving or offering of any gratification to a person or the acceptance or offering to accept any gratification by 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;

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

(xiv) "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;

(xv) "political office bearer" means a member of Parliament, a member of a provincial legislature and a member of a Municipal Council;

(xvi) "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; or

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

(xvii) "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;

(xvii) "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 legislation;

(xix) "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);

(xx) "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) any person receiving any remuneration from public funds;

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

but does not include any member of the-

(a) legislative authority;

(b) judicial authority; or

(c) prosecuting authority:

(xxi) "relative", in relation to a person, means-

(a) his or her spouse 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;

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

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

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

(xxiii) "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;

(xxiv) "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;

(xxv) "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; or

(c) a permanent same-sex or heterosexual life partnership;

(xxvi) "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) 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.

(2) A reference in this Act to the exercise, carrying out or performance of a power, duty or function, is deemed to include a reference not to exercise, carry out or perform such a power, duty or function.

CHAPTER 2

PROHIBITIONS IN RESPECT OF CORRUPT ACTIVITIES

Part 1: General prohibitions

General prohibitions in respect of corrupt acceptance of gratification

3. No person may, directly or indirectly, accept or agree or offer to accept any gratification, whether for himself or herself or for the benefit of another person-

(a) as an inducement to act with an improper purpose, personally or by influencing any other person so to act, in the exercise, carrying out, or performance of his or her or such other person's powers, duties or functions relating to his or her or such other person's office, employment or any other capacity; or

(b) as a reward for acting or having acted as contemplated in paragraph (a)..

General prohibitions in respect of corrupt giving of gratification

4. No person may, directly or indirectly, give or agree or offer to give to any other person any gratification, whether for the benefit of that other person or of another person-

(a) as an inducement to act with an improper purpose, personally or by influencing any other person so to act, in the exercise, carrying out, or performance of his or her or such other person's powers, duties or functions relating to his or her or such other person's office, employment or any other capacity; or

(b) as a reward for acting or having acted as contemplated in paragraph (a).

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

Prohibitions in respect of corrupt activities relating to public officers

5. (1) No public officer may, directly or indirectly, accept or agree or offer to accept any gratification, whether for himself or herself or for the benefit of another person-

(a) as an inducement to act with an improper purpose, personally or by influencing any other person so to act, in the exercise, carrying out or performance of his or her or such other person's powers, duties or functions relating to his or her or such other person's office or employment, which act may include-

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

(ii) performing, not performing or not adequately performing any official functions;

(iii) expediting, delaying, hindering or preventing the performance of an official act;

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

(v) 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

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

(vii) 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;

(viii) exerting any improper influence over the decision making of any person performing functions in a public body; or

(b) as a reward for acting or having acted as contemplated in paragraph (a).

(2) No public officer may, directly or indirectly, use his or her office or position in a public body in order to obtain any undue gratification for himself, herself or any other person.

(3) No person may, directly or indirectly, give or agree or offer to give any gratification to a public officer as-

(a) an inducement to act with an improper purpose as contemplated in subsection (1); or

(b) a reward for acting or having acted as contemplated in paragraph (a).

Prohibitions in respect of corrupt activities by and against persons in private sector

6. No person may, in the course of business in the private sector, directly or indirectly-

(a) accept or agree or offer to accept any gratification, whether for himself or herself or for the benefit of another person-

(i) as an inducement to act with an improper purpose, personally or by influencing any other person so to act, in the exercise, carrying out, or performance of his or her or such other person's powers, duties or functions relating to his or her or such other person's business, office or employment; or

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

(b) give or agree or offer to give to any other person any gratification, whether for the benefit of that other person or of another person-

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

Prohibitions in respect of corrupt activities relating to agents

7. (1) No agent may, directly or indirectly-

(a) accept or agree or offer to accept any gratification, whether for himself or herself or for the benefit of another person-

(i) as an inducement to act with an improper purpose, personally or by influencing any other person so to act, in the exercise, carrying out, or performance of his or her or such other person's powers, duties or functions relating to the affairs or business of his or her or such other person's principal; or

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

(b) give or agree or offer to give to any person any gratification, whether for the benefit of that person or of another person-

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

(2) No person may, directly or indirectly-

(a) accept or agree or offer to accept from an agent any gratification, whether for himself or herself or for the benefit of another person-

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

(b) give or agree or offer to give any gratification to an agent, whether for the benefit of that agent or of another person-

(i) as an inducement to act with an improper purpose, personally or by influencing any other person so to act, in the exercise, carrying out, or performance of that agent's or such other person's powers, duties or functions relating to the affairs or business of that agent's or such other person's principal; or

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

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

8. (1) No member of the legislative authority may, directly or indirectly, accept or

agree or offer to accept any gratification, whether for himself or herself or for the benefit of another person-

(a) as an inducement to-

(i) act with an improper purpose, personally or by influencing any other person so to act, in the exercise, carrying out or performance of his or her or such other person's powers, duties or functions relating to his or her or such other person's office or employment;

(ii) absent himself or herself from the legislative authority of which he or she is a member or from any committee or joint committee of that legislative authority; or

(b) as a reward for acting or having acted as contemplated in subparagraph (i) or (ii).

(2) No person may give or agree or offer to give any gratification to a member of the legislative authority, whether for the benefit of that member or of another person-

(a) as an inducement to-

(ii) absent himself or herself from the legislative authority of which he or she is a member or from any committee or joint committee of that legislative authority;

(b) as a reward for acting or having acted as contemplated in subparagraph (i) or (ii).

Prohibitions in respect of corrupt activities relating to members of judicial authority

9. (1) No judicial officer may, directly or indirectly, accept or agree or offer to accept any gratification, whether for himself or herself or for the benefit of another person-

(i) conducting fair judicial proceedings;

(ii) making fair and impartial decisions over life, freedoms, rights, duties, obligations and property of persons;

(iii) promoting the independence of the judiciary; or

(b) as a reward for acting or having acted as contemplated in paragraph (a).

(2) No person may, directly or indirectly, give or agree or offer to give any gratification to a judicial officer, whether for the benefit of that judicial officer or of another person-

(a) as an inducement to act with an improper purpose, personally or by influencing any other person so to act, in the exercise, carrying out or performance of his or her or such other person's powers, duties or functions relating to his or her or such other person's judicial office or the administration of justice, which include-

(i) conducting fair judicial proceedings;

(ii) making fair and impartial decisions over life, freedoms, rights, duties, obligations and property of persons;

(iii) promoting the independence of the judiciary; or

(b) as a reward for acting or having acted as contemplated in paragraph (a).

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

10. (1) No member of the prosecuting authority may, directly or indirectly, accept or agree or offer to accept any gratification, whether for himself or herself or for the benefit of another person-

(i) the instituting and conducting of criminal proceedings on behalf of the State;

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

(iii) the discontinuation of criminal proceedings; or

(b) as a reward for acting or having acted as contemplated in paragraph (a).

(2) No person may, directly or indirectly, give or agree or offer to give any gratification to a member of the prosecuting authority, whether for the benefit of that member or of another person-

(a) as an inducement to act with an improper purpose, personally or by influencing any other person so to act, in the exercise, carrying out or performance his or her or such other person's powers, duties or functions relating to his or her or such other person's office, employment or the administration of justice, which include-

(i) the instituting and conducting of criminal proceedings on behalf of the State;

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

(iii) the discontinuation of criminal proceedings; or

(b) as a reward for acting or having acted as contemplated in paragraph (a).

Prohibitions in respect of corrupt activities relating to witnesses

11. (1) No person may, directly or indirectly, give or agree or offer to give any gratification to any other person, whether for the benefit of that other person or of another person-

(a) with the intent to improperly influence-

(i) the testimony of that other 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

(ii) that other person or another witness to absent himself or herself from such trial, hearing or other proceedings or to withhold testimony; or

(b) as a reward for acting or having acted as contemplated in paragraph (a)(i) or (ii).

(2) No person may, directly or indirectly, accept or agree or offer 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;

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

(c) a reward for acting or having acted as contemplated in paragraph (a) or (b).

Prohibitions in respect of corrupt activities relating to foreign public officials

12. No person may, directly or indirectly, give or agree or offer to give any gratification to a foreign public official, whether for the benefit of that foreign public official or of another person-

(i) influence any acts or decisions of the foreign state or public international organisation concerned; or

(ii) obtain or retain a contract, business or an improper advantage in the conduct of business of that foreign state or public international organisation; or

(b) as a reward for acting or having acted as contemplated in paragraph (a)(i) or (ii).

Part 2: Prohibitions in respect of corrupt activities relating to specific matters

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

13. No person may-

(a) accept or agree or offer to accept any gratification, whether for himself or herself or for the benefit of another person-

(i) as an inducement-

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

(bb) for, upon an invitation to tender for such contract, improperly making an offer for that tender which has as its aim to cause the tenderer or person organising the tender to accept a particular offer;

(cc) for improperly withdrawing a tender made by him or her for such contract; or

(ii) as a reward for acting or having acted as contemplated in paragraph (a)(i)(aa), (bb) or (cc);

(b) give or agree or offer to give to any other person any gratification, whether for the benefit of that other person or of another person-

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

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

(c) notwithstanding the acceptance of or offer to accept any gratification, give 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;

(d) with intent to obtain such a tender, give or agree or offer to give any gratification to any person who has made a tender in relation to the contract concerned, whether for the benefit of that tenderer or any other person, as an inducement or as a reward for withdrawing or having withdrawn his or her tender.

Prohibitions in respect of corrupt activities relating to auctions

14. No auctioneer or any other person, as the case may be, may directly or indirectly-

(a) give or agree or offer to give any gratification to any other person, whether for the benefit of that other person or of another person-

(i) as an inducement to improperly-

(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 buy the article for a specific amount or to sell the article to a specific bidder; or

(ii) as a reward for acting or having acted as contemplated in subparagraph (i)(aa) or (bb); or

(b) accept or agree or offer to accept any gratification, whether for himself or herself or for the benefit of another person-

(i) as an inducement to improperly-

(aa) refrain from bidding at an auction; or

(bb) participate, 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;

(cc) 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 having acted as contemplated in subparagraph (i)(aa), (bb) or (cc).

Prohibitions in respect of corrupt activities relating to contracts

15. (1) No person may, directly or indirectly, give or agree or offer to give any gratification to any other person, whether for the benefit of that other person or of another person-

(a) as an inducement for improperly giving assistance in or influencing, in any way-

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

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

(b) as a reward for acting or having acted as contemplated in paragraph (a)(i) or (ii).

(2) No person may, directly or indirectly, accept or agree or offer to accept any gratification, whether for himself or herself or for the benefit of another person-

(a) as an inducement for improperly giving assistance in or influencing, in any way-

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

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

(b) as a reward for acting or having acted as contemplated in paragraph (a)(i) or (ii).

(3) No person may, in order to obtain or retain a contract with a public body or as a term of such contract, directly or indirectly, give or agree or offer 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 improperly influencing, in any way, the election of a candidate or a category or party of candidates as a member or members of the legislative authority; or

(b) with the intent to improperly influencing 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.

Prohibitions in respect of corrupt activities relating to sporting events

16. No person may, directly or indirectly, and knowingly-

(a) accept or agree or offer to accept any gratification, whether for himself or herself or for the benefit of another person-

(i) as an inducement-

(aa) to improperly influence, in any way, the run of play or the outcome of a sporting event;

(bb) for not reporting the conduct 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 or having acted as contemplated in subparagraph (i)(aa) or (bb); or

(b) give or agree or offer to give to any other person any gratification, whether for the benefit of that other person or of another person-

(i) as an inducement-

(aa) to improperly influence, in any way, the run of play or the outcome of a sporting event;

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

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

(c) carry into effect any scheme in commerce to improperly influence, in any way, the run of play or outcome of a sporting event.

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

17. No person may, directly or indirectly, and knowingly-

(a) accept or agree or offer to accept any gratification, whether for himself or herself or for the benefit of another person, as an inducement to improperly influence, in any way, or as a reward for improperly influencing or having influenced the outcome of a gambling game or a game of chance;

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

(c) carry into effect any scheme in commerce to improperly influence, in any way, the outcome of a gambling game or a game of chance.

Prohibitions in respect of corrupt activities relating to acquisition of private interest in contract, agreement or investment of public body

18. No person employed in a public body may knowingly acquire or hold, otherwise than as a 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 body.

Prohibitions in respect of corrupt activities relating to improper disclosure of information for gratification

19. No person may-

(a) accept or agree or offer to accept any gratification, whether for himself or herself or for the benefit of another person, as an inducement or as a reward for improperly-

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

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

(b) give or agree or offer to give to any other person any gratification, whether for the benefit of that other person or of another person, as an inducement or as a reward for improperly-

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

(ii) obtaining or having obtained, in any way, such information from any other person.

Prohibitions in respect of corrupt activities relating to acceptance and giving of gratification

20. No person may-

(a) demand, solicit, receive or, in any manner whatsoever, obtain or offer or promise to receive or obtain any gratification under the circumstances and in the manner contemplated in sections ---; or

(b) lend, grant, confer, procure, offer or promise to lend, grant, confer or procure any gratification under the circumstances and in the manner contemplated in sections---.

Accessory to or after an offence

21. No person may, directly or indirectly, whether on behalf of himself or herself or on behalf of any other person-

(a) enter into or cause to be entered into any dealing in relation to any property; or

(b) use or cause to be used, or hold, receive or conceal any property or any part thereof,

which forms part of any gratification which was the subject of an offence in terms of Chapter 3.

CHAPTER 3

OFFENCES, PENALTIES AND RELATED MATTERS

Offences and penalties

22. (1) Any person who-

(a) contravenes any provision of section 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, or 20;

(b) contravenes any provision of section 18, 19, 20 or 25;

(c) fails to give a satisfactory explanation to the investigator conducting the investigation under section 26(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; or

(d) fails to comply with any provision of section 27,

is guilty of an offence.

(2) Any person who is convicted of an offence referred to in-

(a) subsection (1)(a), 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 regional court, to a fine or to imprisonment for a period not exceeding 25 years, or to both a fine and such imprisonment;

(iii) in the case of a sentence to be imposed by a designated magistrate's court, to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment;

(iv) in the case of a sentence to be imposed by any other magistrate's court, to any penalty which may lawfully be imposed for the offence of bribery;

(b) subsection (1)(b), (c) or (d), 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 15 years, or to both a fine and such imprisonment;

(ii) in the case of a sentence to be imposed by a designated magistrate's court, to a fine or to imprisonment for a period not exceeding seven years, or to both a fine and such imprisonment;

(iii) in the case of a sentence to be imposed by any other magistrate's court, to any penalty which may lawfully be imposed for the offence of bribery.

(3) A person convicted of an offence referred to in section 23, 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.

(4) Notwithstanding subsections (2) and (3) 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)-

(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.

(5) (a) If any court referred to in subsection (4) 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 (4) 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 (4) must be calculated from the date of sentence.

(7) The operation of a sentence imposed in terms of subsection (4) 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 (4) 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 (4), 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 (4), "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.

(12) In addition to any fine a court may impose in terms of subsection (2), (3) or (4), the court may impose a fine equal to five times the value of the gratification involved in the offence.

(13) The institution of a prosecution for an offence referred to in section 18, 22(1)(c) or 22(1)(d), must be authorised by the National Director of Public Prosecutions, a Deputy National Director of Public Prosecutions or the Director of Public Prosecutions concerned and only after the person concerned has been afforded an 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 18, how he or she acquired the private interest concerned;

(b) in the case of section 22(1)(c), how he or she acquired the property or resources concerned; or

(c) in the case of section 22(1)(d), why he or she failed to report in terms of section 27.

Attempt, conspiracy and inducing another person to commit offence

23. Any person who-

(a) attempts;

(b) conspires with any other person;

(c) aids, abets, induces, incites, instigates, instructs or commands another person,

to commit an offence in terms of this Act, 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

24. (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 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

25. Any person 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 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.

CHAPTER 4

INVESTIGATIONS REGARDING POSSESSION OF PROPERTY RELATING TO CORRUPT ACTIVITIES

Investigations regarding possession of property relating to corrupt activities

26. (1) The head of the Directorate of Special Operations or any person authorised in writing thereto by him or her, may investigate any person if he or she has reasonable grounds to believe 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, and

(c) maintains such 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.

(2) (a) The head of the Directorate of Special Operations or any person authorised in writing thereto by him or her, may apply to a judge or regional magistrate in chambers for the issuing of an investigation direction.

(b) An application referred to in paragraph (a) must be in writing and must-

(i) indicate the identity of the-

(aa) applicant; and

(bb) person to be investigated;

(ii) specify the grounds referred to in subsection (1) on which the application is made; and

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

(c) An investigation direction may only be issued if the judge or regional magistrate concerned is satisfied, on the facts alleged in the application concerned, that there are reasonable grounds to believe that the person to be investigated-

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

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

(d) An application must be considered and an investigation direction issued without any notice to the person to whom the application applies and without hearing such person.

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

(3) For the purposes of conducting an investigation in terms of this section, the applicant shall have the same powers as those which the Investigating Director has in terms of sections 28 and 29 of the National Prosecuting Authority Act, 1998(Act No. 32 of 1998).

CHAPTER 5

MISCELLANEOUS MATTERS

Duty to report corrupt transactions

27. Any person who becomes aware of a contravention of any provision of this Act, must, as soon as possible, report such fact, together with the name, if known, of the person or persons concerned, to the nearest police station, a law enforcement agency, any other competent authority or to any member of the prosecuting authority.

Presumptions

28. Option 1

(1) Whenever a person is charged with an offence under Chapter 3, 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 as an inducement to improperly do or not to do anything or as a reward for improperly having done or not having done anything.

(2) Whenever a person is charged with an offence under Chapter 3, proof that that person, or someone else at the instance of that person, gave or agreed or offered to give any gratification to a person-

(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, if the State can further show that despite having taken reasonable steps it was not able with reasonable certainty to link the giving of or agreement or offer to give 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 gave or agreed or offered to give such gratification as an inducement to improperly do or not to do anything or as a reward for improperly having done or not having done anything.

Option 2

(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 as an inducement to improperly do or not to do anything or as a reward for improperly 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.

(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 benefitted, or public body, private organisation, corporate body, political party or other organisation or institution in which the person who benefitted was serving as an official; or

(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,

is, if the State can further show that despite having taken reasonable steps, it was not able with reasonable certainty to link the giving of or agreement or offer to give 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-

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

(3)(only applicable in respect of option 1) 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; or

(b) the omission to arrest, detain or prosecute any person for 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.

(4) For the purposes of section 5(2), 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 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 officer.

Extraterritorial jurisdiction

29. (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 is intended to affect a public body, any person or business in the Republic;

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

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

(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.

Reinstatement of common law crime of bribery

30. 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.

Repeal and amendment of laws

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

(2) Despite subsection (1), all proceedings which immediately before 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 were pending before any court of law or reviewing authority, shall be dealt with as if this Act had not been passed.

Short title

32. This Act is called the Prevention of Corrupt Activities Act, 2003.