In addition to the above-mentioned permanent authorities responsible for investigating and prosecuting bribes in South Africa, another important authority is the Judicial Commission of Inquiry into Allegations of State Capture, also known as the Zondo Commission, also known as its Chairman, Deputy Chief Justice Raymond Zondo. The Zondo Commission is a judicial commission of inquiry tasked with „investigating allegations of state co-optation, corruption, fraud and other allegations in the public sector in South Africa“. The Zondo Commission has done a huge job in exposing the systemic corruption that has afflicted South African state organs (colloquially referred to as „state capture“, in reference to the „capture“ of state organs by individuals/organisations). As explained above, there are a number of public interest groups that take preventing and combating corruption and bribery very seriously. Another civil consequence of corruption in South Africa is that decisions of state bodies can be overturned in cases where the decision has been affected by corruption, corruption or maladministration. This process is explained in more detail below and governed by the Law on the Promotion of Administrative Justice. South Africa is a party to the following international anti-corruption conventions: This article was originally published in The Legal 500: Bribery & Corruption Country Comparative Guide. A full list of questions and answers on jurisdiction can be found at www.legal500.com/guides/guide/bribery-corruption/ The Preventing and Combating Corruption Act (PRECCA) is South Africa`s leading anti-corruption and anti-corruption legislation and is similar to the UK Corruption Act. PRECCA creates a general criminal offence of corruption that is broadly defined.
PRECCA also imposes a legal obligation to report in cases where there is a suspicion that a criminal offence within the meaning of the law has been committed (including corruption). Notwithstanding the above, it is difficult to disagree with Zondo that it is necessary to turn the page. South Africa is at a turning point where there can be a collective decision and a commitment to change things. The substantive legal implications will be limited. Perhaps the most significant changes that could occur for businesses are: after all, products and assets that are crucial to the commission of the corruption offense can be confiscated and/or confiscated in accordance with the POCA. In general, the value of property can be used to compensate the victims of the crime in question or confiscated from the State. Anyone convicted of offences related to the proceeds of illegal activities is punishable by a fine not exceeding ZAR 100 million or a maximum term of imprisonment of 30 years. The OECD Anti-Bribery Convention sets standards for criminalizing bribery of foreign officials in international business transactions. Facilitation payments (i.e., a financial payment to a public official with the intention of expediting an administrative process) are not excluded from the scope of the CCPAA.
Consequently, such payments fall directly within the definition of unauthorized satisfaction and, as such, could constitute corruption. The general criminal offence of corruption and the sanctions previously identified also apply to a company or legal entity that commits the crime of corruption. Zondo recommended a multi-level approach on how the Charter would be applied in practice. At the first level, key people – including institutions, natural and legal persons – should sign the Charter to express their commitment to respect its principles. The individuals listed include the president, cabinet members, state-owned enterprises, political parties, and listed companies, among others. For these groups, this means that the signature would be a social contract and a symbolic position against corruption, as opposed to direct legal effect. As we have seen, the adoption of a national charter against corruption will not fundamentally change the law in South Africa. In addition, the addition of another code of conduct may lead to confusion and duplication for staff and staff who are already subject to codes of conduct. Natural and legal persons can be held responsible for corruption in South Africa. As far as companies are concerned, the company can be fined. The Zondo Commission met for the first time on 20 August 2018 and is expected to continue until at least 2021.
The Zondo Commission is responsible for investigating bribery and corruption, but not law enforcement. However, it is hoped that the information uncovered by the Zondo Commission and its recommendations will lead to successful prosecutions by the NPA. While the implementation of a compliance program does not necessarily have to release a legal entity from vicarious liability, it can be considered mitigating if the company can demonstrate that it has taken all reasonable steps to prevent the commission of corruption. In addition, the private sector is increasingly recognizing that organizations are taking active measures to prevent corruption and bribery. We have seen cases where private companies are taking action by developing strong internal regulatory and compliance policies to mitigate the risks associated with corruption and bribery.