South Africa Anti-corruption Guide 2022
1. Is your country a member of the OECD Anti-Bribery Convention?
Yes.
2. Is your country a member of any other bilateral or multilateral conventions on anti-corruption?
Yes. South Africa is a member of the United Nations Convention against Corruption. In addition, South Africa has ratified the African Union Convention on Preventing and Combating Corruption. The objective of the convention is to, among other things, promote and strengthen development in Africa by implementing mechanisms to prevent, detect, punish, and eradicate corruption and related offenses in the public and private sectors.
3. Are there local anti-corruption laws in your country focusing on corporations, not individuals? If yes, what sanctions can be imposed?
South Africa's principal anti-corruption statute, the Prevention and Combating of Corrupt Activities Act, 2004, ("PRECCA"), applies to both natural and juristic persons. On conviction, a contravention of PRECCA can result in a fine of unlimited value. However, companies can only be held criminally liable in accordance with the principles of corporate criminal liability as governed by the Criminal Procedure Act, 1977.
4. Can companies be held liable for acts of corruption under civil or administrative law?
Yes, provided the conditions outlined in the Criminal Procedure Act, 1977 are satisfied.
5. Is corruption of individuals punishable?
Yes. PRECCA creates the general offense of corruption and various specific corrupt activities. A contravention of PRECCA can, on conviction, result in a fine of unlimited value or imprisonment for life.
6. Are facilitation payments allowed?
There is no exemption for facilitation payments under South African law. In addition, while there is no specific prohibition on facilitation payments in PRECCA, making such payments may, in certain circumstances, constitute a corrupt activity for purposes of PRECCA.
7. Is there a legal regulation/maximum limit for accepting or giving gifts, invitations, etc.?
No, there is no general maximum level for accepting gifts in South African law. However, in terms of the South African Local Government: Municipal Finance Management Act and the Municipal Supply Chain Management Regulations, no person who is a provider or prospective provider of goods or services to a municipality or municipal entity or a recipient or prospective recipient of goods disposed or to be disposed of by a municipality or municipal entity, may offer or grant certain gifts or rewards. This includes —
(a) any inducement or reward to the municipality or municipal entity for or in connection with the award of a contract; or
(b) any reward, gift, favor, or hospitality to —
(i) any official of the municipality or municipal entity; or
(ii) any other role player involved in the implementation of the supply chain management policy of the municipality or municipal entity unless such gift is less than R350 in value.
8. Are bribes to foreign government officials prohibited?
Yes.
9. Does your legislation have any extraterritorial reach?
Yes.
10. Is it possible to confiscate assets from the company?
Yes, in accordance with the Prevention of Organised Crime Act, 1998. South Africa has a dedicated Asset Forfeiture Unit within the Department of Justice, which attends to restraining and confiscating the proceeds of crime.
11. Does your legislation rely on deferred prosecution or non-prosecution agreements or any other type of non-trial resolution for corruption?
No, but the State Capture Commission has recently recommended that South Africa introduce deferred prosecution agreements into our law.
12. Can a company be liable for the acts of its intermediaries or third parties?
Yes, such liability could arise as a result of contractual obligations imposed on the company or in circumstances where the third party is acting as an agent of the company in terms of South African law.
13. Can a parent company be liable for the acts of its subsidiaries?
Yes, provided that there is a causal link between the parent company and the illicit activities of the subsidiary. The State will have to prove that the activities were performed under instruction or with the parent's knowledge, awareness, or condonation.
14. Are there any affirmative defenses or exceptions for those accused of corruption acts?
PRECCA provides for various specific defenses to a person charged with an offense in terms of the Act. In addition, it is open to the accused to raise the defense that one of the essential elements necessary for criminal liability is absent.
15. Does your jurisdiction require domestic entities to implement anti-corruption internal programs?
Certain companies are required to establish a social and ethics committee in terms of the Companies Act, 2008. Where such a committee is required to be established, such committee must, among other things, monitor the company's activities regarding good corporate citizenship, including the company's reduction of corruption. In November 2018, the Companies and Intellectual Property Commission issued a non-binding guideline for corporate compliance programs. (The principles are markedly similar to those published by the Ministry of Justice for "adequate procedures" to avoid failing to prevent bribery in the United Kingdom Bribery Act.)
16. Is having a compliance program a defense or mitigating factor, while reviewing sanctions?
Yes, the existence of a compliance program may be considered a mitigating factor during sentencing.
17. Could the cooperation with the authorities or an internal investigation be a defense or mitigating factor?
Cooperation with the authorities could potentially be taken into consideration as a mitigating factor for purposes of sentencing.
18. Is there any publicly available guideline issued by the authorities in charge of enforcing anti-corruption laws? For example, manuals on compliance programs, leniency agreements, etc. If so, please provide the link.
Yes, as conveyed above, the South African Companies and Intellectual Property Commission published non-binding guidelines for corporate compliance programs in 2018 (Guideline 1 of 2018).
Contributor
ENSafrica
Steven Powell, spowell@ensafrica.com