The South African corruption law and bribery of foreign public officials in international business transactions: A comparative analysis

• Jurisdiction: South Africa
• Citation: (2005) 18 SACJ 1
• Published date: 16 August 2019
• Author: Omphemetse Sibanda
• Date: 16 August 2019
• Pages: 1-23

ARTICLES

The South African corruption

law and bribery of foreign public

off‌i cials in international business

transactions: A comparative analysis

OMPHEMETSE SIBANDA∗

ABSTRACT

The Prevention and Combating of Corrupt Activities Act of 2004 (PCCAA) is

South Africa’s f‌i rst comprehensive anti-corruption legislation. The PCCAA was

born of South Africa’s desire to ‘provide anew for the prevention of corruption

and related offences’ by replacing the Corruption Act of 1992. The PCCAA

contains far-reaching and interrelated provisions that signal the commitment

and the intention of the government of South Africa to unbundle corruption

by def‌i ning and prohibiting various actions and corrupt practices. For the f‌i rst

time, through s 5 of the PCCAA, South Africa follows international trends by

extending its national law to address bribery of foreign public off‌i cials by its

nationals.

The focal point of the discussion in this article is s 5 of the PCCAA and related

provisions concerned with bribery of foreign public off‌i cials in international

business transactions. Potential ramif‌i cations and shortcomings of s 5 are

highlighted. The conclusion reached is that the PCCAA is South Africa’s most

important anti-corruption legislation to date, which is expected to translate

into tangible form efforts and developments in the prevention and combating

of corrupt activities.

1 Introduction

In his opening statement at the f‌i rst national anti-corruption conference

held in November 1998 in the South African Parliament, President Thabo

Mbeki highlighted the need for South African society to be up in arms

against corruption in all its forms. He stressed that for us, South African

society, it is time to review our activities, re-evaluate those around us,

and return to ourselves. The re-evaluation of the South African position

1

* BIur LLB (Vista) LLM (Georgetown), Professor of Law, University of South Africa.

(2005) 18 SACJ 1

© Juta and Company (Pty) Ltd

2 SACJ • (2005) 1

on corruption and corrupt activities is the result of the recently enacted

Prevention and Combating of Corrupt Activities Act of 2004 (PCCAA).1

The PCCAA is South Africa’s f‌i rst comprehensive anti-cor ruption

legislation, modeled partly on the Organization for Economic Cooperation

and Development Convention on Combating Bribery of Foreign Public

Off‌i cials in International Business Transactions (OECD Convention).2 The

enactment of the PCCAA has been long overdue in a country that was

eager to become the f‌i rst African country to join the OECD Convention3

and which participated in the drafting of the ‘Washington Principles’ in

1999 with ten other African countries which committed themselves to

combating corruption and later to working towards the creation of an

African anti-corruption convention.4

The PCCAA was born of South Africa’s desire to ‘provide anew for the

prevention of corruption and related offences’5 by replacing the existing

Corruption Act6 with new legislation. The purpose of the act is to ‘provide

for the strengthening of measures to prevent and combat corruption and

corrupt activities’.7 It contains far-reaching and interrelated provisions

which signal the commitment and the intention of the Government of

South Africa to unbundle8 corruption by def‌i ning and prohibiting various

1 The Prevention and Combating of Corrupt Activities Act 12 of 2004 (PCCAA). PCCAA

was approved by the President on 28 April 2004. Note that PCCAA is an extensively

reconsidered version of the Prevention of Corruption Bill 19 of 2002.

2 The Organization for Economic Cooperation and Development: Convention on

Combating Bribery of Foreign Public Off‌i cials in International Business Transactions

(OECD Convention), OECD/DAFFE/IME/BR(97)20, reprinted in (1998) 37 ILM 1. The

OECD is a Paris-based organization of countries that together produce not less than two-

thirds of the world’s goods and services. Founded in 1960, the OECD is a successor to the

1948 Organization for European Economic Co-operation (OEEC) which was tasked with

administering the Marshall Plan and with helping Europe recover from the economic ills

of World War II.

3 See J Dludlu ‘SA signals intention to join the f‌i ght against corruption’ Business Day 27

January 1999 at 3; J Dludlu ‘Global neighborhood watch takes shape’ Business Day 18

February 1999 at 17.

4 The 25 Washington Principles were drawn up and agreed to at a meeting held in

Washington DC on 23 February 1999 under the auspices of the Global Coalition for

Africa by eleven African countries. The Washington Principles take cognizance of global

and regional efforts like those of the OECD to combat corruption. The principles are the

synthesis and restatement of the OECD Convention on Bribery and the Inter-American

Convention on Bribery and ref‌l ect the commitment of the parties to make efforts to

combat corruption and later work towards the creation of an African anti-corruption

convention. See, generally, ‘Africans make major gains in f‌i ghting corruption’ Africa News

2 March 1999 for more information on the Washington Principles.

5 See the chapeau of the Prevention of Corruption Bill.

6 Corruption Act 94 of 1992.

7 See PCCAA chapeau.

8 See PCCAA preamble para 13. See also clause 1.2 of the Memorandum on the Objects of

the Prevention and Combating of Corruption Bill.

© Juta and Company (Pty) Ltd