The key anti-bribery and corruption legislation in South Africa is the Prevention and Combatting of Corrupt Activities Act, 2004 (Act No. 12 of 2004 - “PRECCA”).  

PRECCA, inter alia, provide for the following: 

• the general offense of corruption (section 3 of PRECCA);
• offenses in respect of corrupt activities relating to specific persons, for example, public officers or foreign public officials (sections 4 to 9 of PRECCA);
• offenses in respect of corrupt activities relating to receiving or offering of unauthorized gratification by or to a party to an employment relationship (section 10 of PRECCA);
• offenses in respect of corrupt activities relating to specific matters, for example, procurement and withdrawal of tenders, auctions, gambling or sporting events (sections 11 to 16 of PRECCA);
• offenses relating to a possible conflict of interest, for example, acquisition of private interest in the contract, unacceptable conduct relating to witnesses (sections 17 to 19 of PRECCA);
• the offense of being an accessory to or after an offense and an attempt, conspiracy and inducement to another person to commit an offense (sections 20 to 21 of PRECCA), and
• the duty to report corrupt transactions (section 34 of PRECCA).

There is other South African legislation dealing with specific aspects of anti-bribery and/or corruption, for example:

• the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998 - “POCA”).  This, inter alia, introduced measures to combat organized crime, money laundering and criminal activities;
• the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001 - “FICA”). This, inter alia, established the Financial Intelligence Centre in order to combat money laundering activities and the financing of terrorist and related activities;
• the Public Finance Management Act, 1999 (Act No. 1 of 1999 - “PFMA”) and Treasury Regulations. The PFMA, inter alia, regulates financial management in the national and provincial spheres of government to ensure that all revenue, expenditure, assets and liabilities of government are managed efficiently and effectively. Treasury Regulations for government departments, constitutional institutions and public entities, dated March 2005, oblige organs of state to investigate corruption within public procurement.
• the Local Government Municipal Finance Management Act, 2003 (Act No. 56 of 2003 - “MFMA”) and Treasury Regulations. The MFMA, inter alia, aims to secure sound and sustainable management of the financial affairs of municipalities and other institutions in the local sphere of government. The Municipal Supply Chain Management Regulations provide for the combatting of abuse of supply chain management systems.
• the Protected Disclosures Act, 2000 (Act No. 26 of 2000 - “PDA”). This, inter alia, provides procedures in terms of which employees in both the private and public sectors may disclose information regarding unlawful or irregular conduct by their employers or employees. The PDA stipulates that every employer and employee has a responsibility to disclose criminal and any other irregular conduct in the workplace. 
• the Public Administration Management Act, 2014 (Act No. 11 of 2014 - “PAMA”). The PAMA aims, inter alia, to promote basic values and principles governing the public administration referred to in section 195(1) of the Constitution. Section 8 of PAMA (currently not enacted) will, inter alia, prohibit employees/persons appointed in the public administration (subject to special exclusions) from conducting business with the state. 

No. The key anti-bribery and corruption legislation in South Africa, the PRECCA, is well established and was enacted in 2004. 

Yes, section 4(1)(b) of PRECCA stipulates: 

“any 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, personally or by influencing another person to act in a manner – 

(i)    that amounts to the: 

(aa)    illegal, dishonest, unauthorized, incomplete or biased; or 

(bb)    misuse or selling of information or material acquired in the course of the exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation; 

(ii)    that amounts to:

(aa)    the abuse of a position of authority; 

(bb)    a breach of trust; or

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

(iii)    designed to achieve an unjustified result; or
 
(iv)    that amounts to any other unauthorized or improper inducement to do or not to do anything,

 is guilty of the offense of corrupt activities relating to public officers.”

A “public officer” is defined in section 1 of PRECCA to be: 

“any person who is a member, an officer, an employee or a servant of a body; and includes-

(a)    any person in the public service contemplated in section 8(1) of the Public Service Act 1994 (Proclamation 103 of 1994);

(b)    any person receiving any remuneration from public funds; or 

(c)    where the public body is a corporation, the person who is incorporated as such, 

but does not include any-

(a)    member of the legislative authority;

(b)    a judicial officer, or 

(c)    member of the prosecuting authority.”

Yes, section 5(1) of PRECCA stipulates:

“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 for the benefit of another person, in order to act, personally or by influencing another person to act in a manner-

(a)    that amounts to the:

(i)     illegal, dishonest, unauthorized, incomplete, or biased: or 

(ii)    misuse or selling of information or material acquired in the course of the exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation;

(b)    that amounts to:

(i)    the abuse of a position of authority; 

(ii)    a breach of trust; or 

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

(c)    designed to achieve an unjustified result; or 

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

is guilty of the offense of corrupt activities relating to foreign public officials.”

A “foreign public official” is defined in section 1 of PRECCA to be: 

(a)    “any person holding a legislative, administrate or judicial office of a foreign state;
 
(b)    any person performing public functions for a foreign state, including any person employed by a broad, commission, corporation or other body authority that performs a function on behalf of the foreign state, or 

(c)    an official or agent of a public international organization.”

Yes, section 3(a) of PRECCA stipulates:

“any person who directly or indirectly accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person, in order to act, personally or by influencing another person so to act in a manner – 

(i)    that amounts to the:

(aa)    illegal, dishonest, unauthorized, incomplete, or biased; or

(bb)    misuse or selling of information or material acquired in the course exercise, carrying out or performance of any powers, duties or function arising out of a constitutional, statutory, contractual or any other legal obligation;

(ii)    that amounts to:

(aa)    the abuse of a position of authority; 

(bb)    a breach of trust; or 

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

(iii)    designed to achieve an unjustified result; or 

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

is guilty of the offense of corruption.”
 

For purposes of the general offense of corruption set forth in section 3 of PRECCA “any person” could be guilty of the offense of corruption.  “Any person” would, inter alia, include the “private sector” defined, in terms of section 1 of PRECCA, to include a natural person, a company or any other legal person.

It should also be noted that Section 35 of PRECCA provides for extraterritorial jurisdiction:

(1)    “Even if the act alleged to constitute an offense under this Act occurred outside the Republic, a court of the Republic shall, regardless of whether or not the act constitutes an offense at the place of its commission, have jurisdiction in respect of that offense if the person to be charged –

(a)    is a citizen of the Republic;

(b)    is ordinarily resident in Republic;

(c)    was arrested in the territory of the Republic, or in its territorial waters, or on board of a ship or aircraft registered in the Republic at the time the offense was committed;

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

(e)    any body of persons, incorporated or unincorporated in the Republic” (sic).

(2)    Any act alleged to constitute an offense under this Act and which is committed outside the Republic by a person, other than a person contemplated in subsection (1) shall, regardless of whether or not the act constitutes an offense or not at the place of its commission. be deemed to have been committed also in the Republic if that-

(a)    act affects or is intended to affect a public body in South Africa, a business or any other person in the Republic;

(b)    a person is found to be in South Africa; and 

(c)    person is for one or other reason not extradited by South Africa or if there is no application to extradite that person.

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

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

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

(4)     Where a person is charged with conspiracy or incitement to commit an offense or as an accessory after the offense, the offense 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.”

Yes, corporate entities can be criminally liable as “any person” referred to in section 3 of PRECCA includes corporate entities.

Penalties are imposed in terms of section 26 of PRECCA and include imprisonment and/or a fine. 

Penalties are imposed in terms of section 26 of PRECCA and include imprisonment of officials of the corporate entity and a fine to the corporate entity.

No, this would not indemnify the entity. Corporate entities who have implemented and executed compliance programs could, however, offer such factors in mitigation during sentencing. 

South African law does not provide for a deferred prosecution agreement, but we have the following other options in terms of the Criminal Procedure Act, 1977 (Act No. 51 of 1977 - “CPA”):

• In terms of section 105A of the CPA, a prosecutor authorized in writing by the National Director of Public Prosecutions and an accused who is legally represented may, before the accused pleads to the charge, negotiate and enter into an agreement in respect of a plea of guilty to the charge or another offense on which the accused may be convicted. If the court finds the accused guilty of the offense to which the accused pleaded guilty the court may, inter alia: 
  • impose the postponement of the passing of sentence in terms of section 297(1)(a) of the CPA;
  • impose a just sentence of which the operation of the whole or any part is suspended in terms of section 297(1)(b) of the CPA, or 
  • award compensation contemplated in section 300 of the CPA.
• In terms of section 204 of the CPA, a person may be called as a witness in criminal proceedings on behalf of the prosecution. Such witness will be required to answer incriminating questions about the alleged offence. If the witness answers all the questions frankly and honestly and the court is satisfied with the answers provided by the witness, such person may be discharged by the court from prosecution for the offense.
• In terms of section 297 of the CPA, a court may, after convicting a person of any offense (other than an offense in respect which the law prescribes a minimum punishment):
  • postpone for a period not exceeding five years the passing of sentence and release the person concerned on one or more conditions and order such person to appear before the court at the expiration of the relevant period or unconditionally and order such person to appear before the court if called upon before the expiration of the relevant period;
  • pass sentence but order the operation of the whole or any part to be suspended for a period not exceeding five years on any condition which the court may specify in the order; or
  • discharge the person concerned with caution or reprimand, and such discharge shall have the effect of an acquittal, except that the conviction shall be recorded as a previous conviction.