WORKING DOCUMENT NO. 7 (OCT 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

OFFENCES IN RESPECT OF CORRUPT ACTIVITIES

Part 1: General offence of corruption

3. General offence of corruption

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

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

5. Offences in respect of corrupt activities relating to agents

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

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

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

9. Offences in respect of corrupt activities relating to judicial proceedings

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

Part 3: Offences in respect of corrupt activities relating to specific matters

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

12. Offences in respect of corrupt activities relating to auctions

13. Offences in respect of corrupt activities relating to contracts

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

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

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

17. Offences in respect of corrupt activities relating to disclosure of information for gratification

18. Offences in respect of corrupt activities relating to acceptance and giving of gratification

Part 4: Other offences

19. Accessory to or after an offence

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

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

21A Accused person may not be charged on and convicted on same facts and circumstances

 

CHAPTER 3

PRESUMPTIONS AND DEFENCES

22. Presumptions

23. Defences

CHAPTER 4

PENALTIES AND RELATED MATTERS

24. Penalties

24A. Endorsement of Register.

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

CHAPTER 5

INVESTIGATIONS REGARDING POSSESSION OF PROPERTY RELATING TO CORRUPT ACTIVITIES

26. Investigations regarding possession of property relating to corrupt activities

CHAPTER 6

CENTRAL CORRUPTION REGISTER

26A. Establishment of Register

26B. Appointment of Registrar

26C. Powers, duties and functions of Registrar

26D. Regulations pertaining to the Register

CHAPTER 7

MISCELLANEOUS MATTERS

27. Duty to report corrupt transactions

28. Extraterritorial jurisdiction

29. Reinstatement of common law crime of bribery

30. Repeal and amendment of laws

31. Short title

 

CHAPTER 1

DEFINITIONS AND INTERPRETATION

Definitions

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

OPTION 1

(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;

OPTION 2

(i) "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;

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

OPTION 1

(v) corruptly" means acting personally or [by] influencing another person to act in a manner-

(a) that adversely affects, or could adversely affect, the honest exercise or performance of a person's powers, duties or functions;

(b) that is unacceptable according to the normal standards of moral, social or professional behaviour;

(c) that amounts to-

(i) the illegal, dishonest, incomplete or biased exercise or performance of any person's powers, duties or functions;

(ii) a breach of trust;

(iii) the misuse of information or material acquired in the course of the exercise or performance of a power, duty or function;

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

(d) designed to achieve an unjustified result; or

(e) that amounts to any other improper inducement to do or not to do anything;

OPTION 2

(v) "corruptly" means engaging personally or by influencing another person to engage in acts that constitute the improper exercise or performance of a power, duty or function or abuse of a position of authority, including acts of omission;

(vi) "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;

(vii) "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;

(viii) "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;

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

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

(xi) "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;

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

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

(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) "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;

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

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

(xviii) "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);

(xix) "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;

(xx) ["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;]

(xxi) "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;

(xxii) "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;

[(xxiii)"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;]

(xxiv) "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

OFFENCES IN RESPECT OF CORRUPT ACTIVITIES

Part 1: General offence of corruption

General offence of corruption

OPTION 1

3. Any person, including a person in the private sector, who, directly or indirectly, accepts or agrees or offers to accept from or gives or agrees or offers to give to any other person any gratification, whether for the benefit of himself or herself or for the benefit of another person, in order to act or for acting or for having acted, personally or by influencing another person so to act, in a manner -

(a) that adversely affects, or could adversely affect, the honest exercise or performance of a person's powers, duties or functions;

(b) that is unacceptable according to the normal standards of moral, social or professional behaviour;

(c) that amounts to-

(i) the illegal, dishonest, incomplete or biased exercise or performance of any person's powers, duties or functions;

(ii) a breach of trust;

(iii) the misuse of information or material acquired in the course of the exercise or performance of a power, duty or function;

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

(d) designed to achieve an unjustified result; or

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

is guilty of the offence of corruption / an offence.

OPTION 2

3. Any person, including a person in the private sector, who, directly or indirectly, accepts or agrees or offers to accept from or gives or agrees or offers to give to any other person any gratification, whether for the benefit of himself or herself or for the benefit of another person, in order to act or for acting or for having acted corruptly, is guilty of the offence of corruption / an offence.

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

Offences in respect of corrupt activities relating to public officers

OPTION 1

4. (1) Any-

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

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

in order to act or for acting or for having acted, personally, or by influencing another person so to act, in a manner-

(i) that adversely affects, or could adversely affect, the honest exercise or performance of a person's powers, duties or functions;

(ii) that is unacceptable according to the normal standards of moral, social or professional behaviour;

(iii) that amounts to-

(aa) the illegal, dishonest, incomplete or biased exercise or performance of any person's powers, duties or functions;

(bb) a breach of trust;

(cc) the misuse of information or material acquired in the course of the exercise or performance of a power, duty or function;

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

(iv) designed to achieve an unjustified result; or

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

is guilty of an offence.

(2) In subsection (1) "to act" includes-

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

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

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

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

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

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

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

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

and "acting" or "having acted" has a corresponding meaning.

OPTION 2

4. (1) Any-

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

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

in order to act or for acting or for having acted corruptly, is guilty of an offence.

(2) In subsection (1) "to act" includes-

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

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

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

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

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

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

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

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

and "acting" or "having acted" has a corresponding meaning.

[Offences in respect of corrupt activities by and against persons in private sector

5. Any person who in the course of business in the private sector, directly or indirectly-

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

(b) gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or of another person, to act personally, or by influencing another person so to act, in a manner-

(i) that adversely affects, or could adversely affect, the honest performance of a person's functions; or

(ii) that amounts to-

(aa) the performance of any of his or her functions dishonestly or with inappropriate partiality;

(bb) a breach of trust;

(cc) the misuse of information or material acquired in the course of the performance of a function or duty; or

(dd) the violation of a legal duty; or

(iii) designed to achieve an unjustified result,

is guilty of an offence.]

.

Offences in respect of corrupt activities relating to agents

OPTION 1

5. Any-

(a) agent who, directly or indirectly-

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

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

(b) person who, directly or indirectly-

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

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

in order to act or for acting or for having acted, personally, or by influencing another person so to act, in a manner-

(aa) that adversely affects, or could adversely affect, the honest exercise or performance of a person's powers, duties or functions;

(bb) that is unacceptable according to the normal standards of moral, social or professional behaviour;

(cc) that amounts to-

(aaa) the illegal, dishonest, incomplete or biased exercise or performance of any person's powers, duties or functions;

(bbb) a breach of trust;

(ccc) the misuse of information or material acquired in the course of the exercise or performance of a power, duty or function;

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

(dd) designed to achieve an unjustified result; or

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

is guilty of an offence.

OPTION 2

5. Any-

(a) agent who, directly or indirectly-

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

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

(b) person who, directly or indirectly-

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

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

in order to act or for acting or for having acted corruptly, is guilty of an offence.

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

6. (1) Any-

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

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

in order to act or for acting or for having acted, personally or by influencing another person so to act, in a manner-

(i) that adversely affects, or could adversely affect, the honest exercise or performance of a person's powers, duties or functions;

(ii) that is unacceptable according to the normal standards of moral, social or professional behaviour;

(iii) that amounts to-

(aa) the illegal, dishonest, incomplete or biased exercise or performance of any person's powers, duties or functions;

(bb) a breach of trust;

(cc) the misuse of information or material acquired in the course of the exercise or performance of a power, duty or function; or

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

(iv) designed to achieve an unjustified result; or

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

is guilty of an offence.

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

(a) for the purpose of 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 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,

is guilty of an offence.

(3) For purposes of subsection (1) "to act" includes-

(a) absenting 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) voting or not voting at any meeting of the legislative authority of which he or she is a member or of any committee or joint committee of that legislative authority;

(c) aiding or assisting in procuring or preventing the passing of any vote in the legislative authority of which he or she is a member or of any committee or joint committee of that legislative authority; or

(d) exerting any improper influence over the decision making of any person performing his or her functions as a member of the legislative authority or of any committee or joint committee of that legislative authority,

and "acting" or "having acted" has a corresponding meaning.

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

OPTION 1

7. (1) Any-

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

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

in order to act or for acting or for having acted, personally or by influencing another person so to act, in a manner-

(i) that adversely affects, or could adversely affect, the honest exercise or performance of a person's powers, duties or functions;

(ii) that is unacceptable according to the normal standards of moral, social or professional behaviour;

(iii) that amounts to-

(aa) the illegal, dishonest, incomplete or biased exercise or performance of any person's powers, duties or functions;

(bb) a breach of trust;

(cc) the misuse of information or material acquired in the course of the exercise or performance of a power, duty or function; or

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

(ee) damaging the independence of the judiciary;

(iv) designed to achieve an unjustified result; or

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

is guilty of an offence.

(2) For purposes of subsection (1) "to act" includes-

(a) the conducting of unfair judicial proceedings;

(b) making unfair and partial decisions over life, freedoms, rights, duties, obligations and property of persons,

and "acting" or "having acted" has a corresponding meaning

OPTION 2

7. (1) Any-

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

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

in order to act or for acting or for having acted corruptly in the exercise or performance of such judicial officer's or such other person's powers duties or functions relating to such judicial officer's or such other person's judicial office or the administration of justice, is guilty of an offence.

(2) In subsection (1) "to act" includes-

(a) the conducting of unfair judicial proceedings;

(b) making unfair and partial decisions over life, freedoms, rights, duties, obligations and property of persons; or

(c) damaging the independence of the judiciary,

and "acting" or "having acted" has a corresponding meaning.

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

OPTION 1

8. (1) Any-

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

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

in order to act or for acting or for having acted, personally or by influencing another person so to act, in a manner-

(i) that adversely affects, or could adversely affect, the honest exercise or performance of a person's powers, duties or functions;

(ii) that is unacceptable according to the normal standards of moral, social or professional behaviour;

(iii) that amounts to-

(aa) the illegal, dishonest, incomplete or biased exercise or performance of any person's powers, duties or functions;

(bb) a breach of trust;

(cc) the misuse of information or material acquired in the course of the exercise or performance of a power, duty or function;

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

(iv) designed to achieve an unjustified result; or

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

is guilty of an offence.

(2) In subsection (1) "to act" includes-

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

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

(c) the improper discontinuation of criminal proceedings,

and "acting" or "having acted" has a corresponding meaning.

OPTION 2

8. (1) Any-

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

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

in order to act or for acting or for having acted corruptly 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 the administration of justice, is guilty of an offence.

(2) In subsection (1) "to act" includes-

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

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

(c) the improper discontinuation of criminal proceedings,

and "acting" or "having acted" has a corresponding meaning.

 

 

Corruption of judicial proceedings

9. (1) Any person who, directly or indirectly accepts or agrees or offers to accept any gratification, whether for the benefit of 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) withholding testimony or withholding a record, document, police docket or other object at any such trial, hearing or proceedings;

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

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

(e) being absent at such trial, hearing or proceedings,

is guilty of an offence.

(2) Any person who, directly or indirectly, intimidates or uses physical force, or improperly persuades another person, or who 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, delay or prevent the testimony of that person or another person as a witness in a trial, hearing or other proceedings before any court, judicial officer, committee, commission or any officer authorised by law to hear evidence or take testimony;

(b) cause or induce any person to-

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

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

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

(iv) be absent at such trial, hearing or other proceedings,

is guilty of an offence.

Offences in respect of corrupt activities relating to foreign public officials

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

(a) that adversely affects, or could adversely affect, the honest exercise or performance of a person's powers, duties or functions;

(b) that is unacceptable according to the normal standards of moral, social or professional behaviour;

(c) that amounts to-

(i) the illegal, dishonest, incomplete or biased exercise or performance of any person's powers, duties or functions;

(ii) a breach of trust;

(iii) the misuse of information or material acquired in the course of the exercise or performance of a power, duty or function;

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

(d) designed to achieve an unjustified result; or

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

is guilty of an offence.

(2) In subsection (1) "to act" includes-

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

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

and "acting" or "having acted" has a corresponding meaning.

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

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

11. Any person who, directly or indirectly-

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

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

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

(b) with intent to obtain a tender referred to in paragraph (a)(i), gives or agrees or offers 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 to {improperly} withdraw or as a reward for withdrawing or having withdrawn his or her tender;

(c) notwithstanding the acceptance of or offer to accept any gratification, {improperly} 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,

is guilty of an offence.

Offences in respect of corrupt activities relating to auctions

12. (1) Any auctioneer who, 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-

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

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

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

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

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

is guilty of an offence.

(2) Any person who, 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-

(i) 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; or

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

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

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

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

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

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

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

is guilty of an offence.

Offences in respect of corrupt activities relating to contracts

13. Any person who, directly or indirectly, accepts or agrees or offers to accept from or who gives or agrees or offers to give to any other person any gratification, whether for the benefit of himself or herself or for the benefit of that other person or of another person as-

(a) 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 any 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) a reward for acting or having acted as contemplated in paragraph (a),

is guilty of an offence.

Offences in respect of corrupt activities relating to sporting events

14. Any person who, directly or indirectly {and knowingly}-

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

(i) 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;

(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

(b) carries into effect any scheme in commerce to {improperly} influence, in any way, the run of play or outcome of a sporting event,

is guilty of an offence.

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

15. Any person who, directly or indirectly-

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

(i) an inducement to {improperly} influence, in any way, the outcome of a gambling game or a game of chance;

(ii) a reward for so influencing or having influenced the outcome of a gambling game or a game of chance; or

(b) carries into effect any scheme in commerce to {improperly} influence, in any way, the outcome of a gambling game or a game of chance,

is guilty of an offence.

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

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

(2) Subsection (1) does not apply to a public officer-

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

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

(c) who acquires or holds such interest through a {proper} tender process.

Offences in respect of corrupt activities relating to {improper} disclosure of information for gratification

17. Any person who accepts or agrees or offers to accept from or who gives or agrees or offers to give to any other person any gratification, whether for the benefit of himself or herself or for the benefit of that other person or of another person as-

(a) an inducement to personally, or by influencing another person so to act, disclose or obtain, in any way, any information to or from any other person in violation of a legal duty or prescript;

(b) as a reward for disclosing or having disclosed or for obtaining or having obtained the information as contemplated in paragraph (a),

is guilty of an offence.

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

18. Any person who-

(a) demands, solicits, receives or, in any manner whatsoever, obtains, or offes or promises to receive or obtain any gratification under the circumstances and in the manner contemplated in sections ---; or

(b) lends, grants, confers, procures or offers or promises to lend, grant, confer or procure any gratification under the circumstances and in the manner contemplated in sections---,

is guilty of an offence.

Accessory to or after an offence

19. Any person who, knowing that property or any part thereof forms part of any gratification which is the subject of an offence in terms of this Chapter, directly or indirectly, whether on behalf of himself or herself or on behalf of any other person-

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

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

is guilty of an offence.

Intentional interference with, hindering or obstruction of investigation of offence

20. 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.

Attempt, conspiracy and inducing another person to commit offence

21. 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.

Accused person may not be charged on same facts and circumstances

21A. Nothing in this Chapter contained shall be construed as allowing a person to be charged with and convicted of committing different offences arising from the same facts and circumstances: Provided that, if by reason of any uncertainty as to the facts which can be proved or if for any other reason it is doubtful which of several offences is constituted by the facts which can be proved, the accused may be charged with the commission of all or any of such offences, and any number of such charges may be tried at once, or the accused may be charged in the alternative with the commission of any number of such offences.

CHAPTER 3

PRESUMPTIONS AND DEFENCES

Presumptions

22. (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 or gave or agreed or offered 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 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 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 or the giving or agreement to give 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 accepted or agreed or offered to accept such gratification from that person or gave or agreed or offered to give such gratification to that person in order to act or for acting or for having acted, personally or by influencing another person so to act, in a manner -

(a) that adversely affects, or could adversely affect, the honest exercise or performance of a person's powers, duties or functions;

(b) that is unacceptable according to the normal standards of moral, social or professional behaviour;

(c) that amounts to-

(i) the illegal, dishonest, incomplete or biased exercise or performance of any person's powers, duties or functions;

(ii) a breach of trust;

(iii) the misuse of information or material acquired in the course of the exercise or performance of a power, duty or function;

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

(d) designed to achieve an unjustified result; or

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

(2) Without derogating from the provisions of subsection (1), where a public officer whose duties include the detection, investigation, prosecution or punishment of offenders, is charged with the offence under section 4(1)(a), 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;

(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) or any other offence had been committed.

(3) Whenever a public officer in a public body is charged with an offence under Chapter 2, proof that he or she has made a decision or taken action in relation to any matter in which he or she 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, agreement or offer to accept the gratification to any lawful motive on the part of that public officer.

Defences

23. Whenever an accused person is charged with an offence under Chapter 2, and it is proved that he or she accepted, or agreed or offered to accept, or gave or agreed or offered to give any gratification, and having knowledge that the gratification was so given, accepted or offered in order to act or for acting or for having acted, personally or by influencing another person so to act, in a manner -

(a) that adversely affects, or could adversely affect, the honest exercise or performance of a person's powers, duties or functions;

(b) that is unacceptable according to the normal standards of moral, social or professional behaviour;

(c) that amounts to-

(i) the illegal, dishonest, incomplete or biased exercise or performance of any person's powers, duties or functions;

(ii) a breach of trust;

(iii) the misuse of information or material acquired in the course of the exercise or performance of a power, duty or function;

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

(d) designed to achieve an unjustified result; or

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

it is not a valid defence for that accused person to contend that he or she-

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

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

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

CHAPTER 4

PENALTIES AND RELATED MATTERS

Penalties

24. (1) Any person who is convicted of an offence referred to in-

(a) sections... 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;

(iii) in the case of a sentence to be imposed by a magistrate's court, to a fine or to imprisonment for a period not exceeding 5 years;

(b) sections...26(4) or 27(2), is liable-

(i) in the case of a sentence to be imposed by a High Court or a regional court, to a fine or to imprisonment for a period not exceeding 15 years;

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

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

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

Endorsement of Register

24A. (1) (a) A court convicting a person of an offence contemplated in section 11 or 13, may, in addition to imposing any sentence contemplated in section 24, issue an order that the particulars of that person, the conviction, sentence and any other order of the court consequent thereupon, be endorsed on the Register.

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

(i) the particulars of that enterprise;

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

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

be endorsed on the Register.

(c) The court may also issue an order contemplated in paragraph (a) in respect of any-

(i) other enterprise of the person so convicted; or

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

and with which enterprise or person the person so convicted is or was, in the opinion of the court, actively associated.

(d) Whenever the Register is endorsed as contemplated in paragraph (a), (b) or (c), the endorsement, unless the court directs otherwise, applies to-

(i) every other enterprise wholly or partly controlled or owned by the person so convicted;

(ii) every enterprise to be established in the future, and which enterprise will be wholly or partly controlled or owned by the person so convicted,

and the Registrar must, in respect of every such enterprise, endorse the Register accordingly.

(2) The making of an endorsement in terms of subsection (1) may be postponed by the court issuing the order until any appeal against the conviction or sentence or both has been disposed of.

(3) Where a court has issued an order under subsection (1), the registrar or clerk of such court must forthwith notify the Registrar of the Register in writing thereof and the Registrar must forthwith endorse the Register accordingly.

(4) (a) Where the Register has been endorsed in terms of subsection (3), the Board may, in addition to any other legal action it may take, in consultation with the Treasury, impose the following restrictions:

(i) To terminate any agreement with the person or enterprise referred to in subsection 1(a) or (b): Provided that if that agreement involves any purchasing authority, Government Department or Provincial Tender Board, such restriction may only be imposed after consultation with the purchasing authority, Government Department or Provincial Tender Board concerned.

(ii) To resolve that no offer in respect of any agreement from a person or enterprise referred to in subsection 1(a), (b), (c) or (d) may be considered during a period determined by the Board: Provided that such period may not exceed 10 years.

(iii) To, during the period determined in subparagraph (ii), ignore any offer tendered by a person or enterprise referred to in subsection (1)(a), (b), (c) or (d);

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

(b) Where the Board has terminated an agreement in terms of paragraph (a)(i), the Board may, in addition to any other legal remedy, recover from the person or enterprise any damages-

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

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

(5) The restrictions envisaged in subsection (4)(a) may be imposed by the Board in respect of any offer or agreement involving any purchasing authority, Government Department or Provincial Tender Board.

(6) The Board may at any time vary or rescind any restriction imposed under subsection (4)(a).

(7) When the Board imposes a restriction under subsection (4)(a)(i) or (ii) or amends or rescinds such a restriction, it must within 14 days in writing notify-

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

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

(c) all Government departments and Provincial Tender Boards,

of any resolution or decision relative to such restriction or the amendment or rescindment thereof, and request such authorities, departments and Tender Boards to take similar steps.

(8) (a) No exemption, condonation, settlement or amendment which may be to the prejudice of the State may be granted, negotiated or made under this section without the prior approval of the Treasury.

(b) Any approval referred to in paragraph (a) may be granted in respect of a specific offer or agreement or in respect of two or more or all offers or agreements entered into for the procurement of a specific supply or service.

(9) (a) Any person whose particulars, conviction and sentence have been endorsed on the Register as contemplated in this section and who has been notified as contemplated in subsection (7)(a), must in any subsequent agreement or tender process involving the State, disclose such endorsement, conviction and sentence.

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

(10) For purposes of this section-

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

(b) "Board", means the State Tender Board established by section 2 of the State Tender Board Act, 1968(Act No. 86 of 1968);

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

(d) "person", in respect of any restriction, includes an employee or agent of such person;

(e) "Registrar" means the Registrar of the National Corruption Register appointed under section 26B;

(f) "Register" means the National Corruption Register established under section 26A.

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

25. The institution of a prosecution for an offence referred to in section 16, 26(4), or 27(2), 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 16, how he or she acquired the private interest concerned;

(b) in the case of section 26(4), how he or she acquired the property or resources concerned; or

(c) in the case of section 27(2), why he or she failed to report in terms of section 27(1).

 

CHAPTER 4

INVESTIGATIONS REGARDING POSSESSION OF PROPERTY RELATING TO CORRUPT ACTIVITIES

OPTION 1

Investigations regarding possession of property relating to corrupt activities

26. (1) The National Director 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 if-

(a) in his or her opinion there is sufficient evidence that any person-

(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; and

(b) he or she has reasonable grounds to suspect that that person {probably} maintains such a standard of living through the commission of corrupt activities or the proceeds of unlawful activities or that such pecuniary resources or properties are {probably} instrumentalities of corrupt activities or the proceeds of unlawful activities.

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

(a) indicate the identity of the-

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

(ii) person to be investigated;

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

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

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

(3) (a) A judge or regional magistrate may issue an investigation direction only if he or she is satisfied, on the facts alleged in the application concerned, that-

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

(ii) there are reasonable grounds for believing that an investigation contemplated in subsection (1) is reasonably necessary in the interests of justice; and

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

(b) An investigation direction-

(i) must be in writing;

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

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

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

(b) 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.

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

(4) The National Director or any person authorised in writing thereto by him or her, may conduct an investigation under an investigation direction issued in terms of subsection (3).

(5) The provisions of sections 28 and 29 of the National Prosecuting Authority Act, 1998(Act No. 32 of 1998), apply, with the necessary changes, in respect of an investigation conducted in terms of subsection (4).

(6) 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 standard of living or how such pecuniary resources or property came under his or her control or possession, is guilty of an offence.

(7) For purposes of this section an "investigation direction" means a direction issued under subsection (3)(a) authorising an investigation contemplated in subsection (1) at any place in the Republic.

OPTION 2

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

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

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

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

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

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

(b) a "special investigator" shall be construed as to include a "police officer".

(3) If property seized under any power exercised under subsection (1) consists of cash or funds standing to the credit of a bank account, the Director of Public Prosecutions or a Special Director of Public Prosecutions who has instituted the investigation under that subsection shall cause the cash or funds to be paid into a banking account which shall be opened with any bank as defined in section 1 of the Banks Act, 1990 (Act 94 of 1990), and the Director of Public Prosecutions or a Special Director of Public Prosecutions shall forthwith report to the Financial Intelligence Centre the fact of the seizure of the cash or funds and the opening of the account.

CHAPTER 5

CENTRAL CORRUPTION REGISTER

Establishment of Central Corruption Register

26A. Within six months after the commencement of this Chapter, the Minister of Finance must establish a register, to be known as the Central Corruption Register, within the Office of the Board.

Appointment of Registrar

26B. The Board must, in consultation with the Minister of Finance, appoint a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, as Registrar of the Register.

Powers, duties and functions of Registrar

26C. (1) The Registrar must, subject to the provisions of section 24A and this Chapter, exercise and perform his or her powers, duties and functions subject to the control and directions of the Board.

(2) The Registrar must-

(a) maintain the Register;

(b) manage the Office of the Register;

(c) carry out the duties and perform the functions assigned to him or her by section 24A, this Chapter or the Board.

Regulations pertaining to the Register

26D. (1) The Minister of Finance may make regulations relating to-

(a) the nomination and selection of candidates for appointment as Registrar;

(b) the appointment, conditions of service, remuneration and other service benefits of the Registrar;

(c) the duties and functions to be performed by the Registrar;

(d) the appointment, conditions of service, remuneration, other service benefits and the security clearance of staff of the Office of the Registrar;

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

(f) the disclosure of information contained in the Register;

(g) the safe-keeping and disposal of records;

(h) any other matter which the Minister may consider necessary to prescribe in order to achieve the objects of section 24A and this Chapter.

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

CHAPTER 6

MISCELLANEOUS MATTERS

Duty to report corrupt transactions

27. (1) Any person who has reason to suspect that any other person intends to commit or has committed an offence referred to in this Act, and any person who is aware of the presence at any place of any other person who is so suspected of intending to commit or having committed such an offence, must report such suspicion and presence of that person at any place or cause such suspicion or presence to be reported to any member of the police.

(2) Any person who fails to comply with subsection (1), is guilty of an offence.

(3) Upon receipt of a report referred to in subsection (1), the member of the police concerned, must take down the report in writing, and forthwith provide the person who made the report with an acknowledgment of receipt of such report.

Extraterritorial jurisdiction

28. (1) Even if the acts or omissions alleged to constitute an offence in terms of this Act occurred wholly outside the Republic, a court of the Republic has jurisdiction in respect of that offence-

(a) if the person to be charged-

(i) is a citizen of the Republic; or

(ii) is ordinarily resident in the Republic; or

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

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

(v) any body of persons, corporate or unincorporated, in the Republic; or

(b) if any of the acts or omissions is alleged to have occurred-

(i) on board a vessel, a ship, an off-shore installation, or a fixed platform, or an aircraft registered or required to be registered in the Republic at the time the offence was committed; or

(ii) on board a ship used as a ship of the South African Defence Force; or

(iii) on board an aircraft in respect of which the operator is licensed in terms of the Air Services Licensing Act, 1990 (Act No. 115 of 1990), or the International Air Services Act, 1993 (Act No. 60 of 1993); or

(iv) on board an aircraft that is leased to a lessee whose principal place of business is in the Republic, or who is a citizen of the Republic or a person ordinarily resident in the Republic; or

(c) if a person in respect of whom the offence is alleged to have been committed-

(i) is a citizen of the Republic; or

(ii) is ordinarily resident in the Republic.

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

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

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

(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

29. (1) 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.

OPTION 1

(2) Subsection (1) shall be construed as if the repeal of the common law crime of bribery by the said section 4 of the Corruption Act, 1992, had not been effected: Provided that a person also commits the common law crime of bribery if that person-

(a) offers or gives to an employee in any employment relationship, including in the private sector; or

(b) being such an employee, receives from any other person,

any unauthorised consideration in respect of such employee doing, or abstaining from or having done or abstained from, any act in the exercise, carrying out or performance of his or her powers, duties or functions relating to such employment relationship.

 

OPTION 2

(2) For purposes of subsection (1) a person commits the common law crime of bribery if that person-

(a) offers or gives to an official of the state; or

(b) being an official of the state, receive from any other person,

any unauthorised consideration in respect of such official doing, or abstaining from or having done or abstained from, any act in the exercise, carrying out or performance of his or her official powers, duties or functions.

Repeal and amendment of laws

30. (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

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