(Enacted in: May 2003)
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:-
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-
(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).
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-
(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 office or employment; or
(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-
(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 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 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-
(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; or
(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-
(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).
(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-
(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 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).
(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-
(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 includes, using his or her position to-
(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-