Participation in OECD (list year):
2007
TerraLex Guide to Anticorruption Legislation
Welcome to the Terralex cross-border guide to anticorruption legislation
This guide offers information on the current regulations related anticorruption policies in various jurisdictions around the world. Please contact the listed contributors for specific questions.
How to Use: You can use the tools below to create bespoke reports for the jurisdiction(s) and topic(s) covered. Click into single jurisdiction for one location or use the compare tool to compare multiple jurisdictions. Select the jurisdictions and topics of interest to create your unique report. You also have the option to print or download using the ellipsis button in the top right corner.
South Africa TerraLex Guide to Anticorruption Legislation Guide
- Authors:
- Bob Groeneveld
- Date posted:
- 18/03/2021
- Last update:
- 03/07/2024
Guidance
What is the applicable anticorruption legislation?
List: - Prevention and Combating of Corrupt Activities Act 12 of 2004 – criminalizes corruption and bribery. This is the primary anti-corruption legislation in South Africa.
- Financial Intelligence Centre Act 38 of 2001 – targets financial crimes, such as money laundering, tax evasion, and terrorist financing activities.
- Public Finance Management Act 1 of 1999 and the Local Government: Municipal Finance Management Act 56 of 2003 – monitors and regulates government spending and procurement processes.
- Prevention of Organised Crime Act 121 of 1988 – combats organised crime.
- Protected Disclosures Act 26 of 2000 – protects whistleblowers.
- Criminal Procedure Act 51 of 1977 – provides procedures relating to all crimes.
- Companies Act 71 of 2008 – provides protection to whistleblowers.
- Various international agreements and conventions, i.e., the United Nations Convention Against Corruption; the African Union Convention on Preventing and Combating Corruption; and the Southern African Development Community’s Protocol against Corruption.
What does this legislation prohibit?
Active and passive corruption. There is no clear distinction between corruption involving public officials and corruption involving private persons in this jurisdiction, and both the act of offering a bribe and accepting a bribe are both criminal offences.
Does it cover bribes to foreign government officials?
Yes.
Does it cover business to business corruption?
Yes.
Are facilitation payments allowed?
No – facilitation payments constitute gratification and qualify as a form of corruption under the Prevention and Combating of Corrupt Activities Act.
Can a corporation be prosecuted for acts of overseas agents, intermediaries, joint venture partners, and third parties?
Yes.
Does the legislation have extra territorial reach?
Yes.
Can Directors of a company be found personally liable?
Yes.
What are the sanctions for breach of the legislation for Directors and corporations?
For directors: Fines, imprisonment
For corporations: Fines
Can companies be held liable for corruption offences? If so, under which conditions?
Yes.
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Corporate criminal liability, this common law principle essentially refers an instance where a company is held criminally liable for crimes it has committed or for crimes that have been committed in endeavouring to pursue the interests of the corporation. This is governed by section 332(1) of the Criminal Procedure Act No 51 of 1977.
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Vicarious liability. Companies can be held vicariously liable for corruption offences committed by the company’s stakeholders (employees, director, authorised representatives or the company’s related organisations or business associates), acting within their scope of employment.
Is there an obligation on companies to put in place preventive measures (such as a compliance program, a whistleblowing line)? If so, what are the sanctions?
Can the implementation of a compliance program constitute a mitigating circumstance in case of an established offense?
Is a corporate settlement procedure available for corruption offenses?
If conditional approval is possible, what type of conditions or commitments may be imposed? Are there any consequences for failing to comply with these conditions or commitments?
Disclaimer: This guide contains summaries of general principles of law. It is not a substitute for specific legal advice and should not be relied upon in relation to the application of the law or subject matter covered.