There are few things more damaging to a nation than deep-seated corruption. Regardless of how plentiful the resources are or how well the economy seems to be doing, corruption has the unique ability to undo progress almost as quickly as it takes place. It makes sense then, that South Africans have a vested interest in the rules that curtail such a devastating practice and its efficacy of them. But what are the laws on corruption? Who enforces the regulations and what happens if someone is found guilty? What is the Law on Corruption in South Africa?
On paper, South Africa has a strong legal framework designed to combat corruption in its many forms, but there’s more to it than you may realize. The Prevention and Combating of Corrupt Activities Act 2004 (PCCAA) has extremely broad definitions with regard to corruption to ensure that those found guilty can be properly punished while preventing them from slipping through some kind of legal loophole.
In practice, however, the country has not lived up to its legislative ideals. The main issue seems to be one of enforcement. Regardless of how airtight the rules are, if there is nobody willing to enforce them, they have very little effect.
But let’s assume for a while that the system works perfectly and corruption is properly limited. How does this all happen?
First things first, let’s consider the punishments established to deter corruption throughout the country.
What are the Penalties for Corruption in South Africa?
When dealing with corruption the PCCAA makes provisions for heavy fines and imprisonment. Sentences of around 15 years and fines of hundreds of thousands of rands are not unusual. Additionally, a court may specifically request that an individual or company be put on the Tender Defaulters Register, also known as blacklisting. Blacklisting can negatively affect an entity’s ability to conduct business.
When dealing with instances of corruption, punishment is more or less determined by 3 factors –
- The type of offence in question – General forms of corruption (accepting or offering bribes) are subject to harsher punishments than ‘lesser’ types of corruption (being an accessory to a corruption offence or obstructing a corruption investigation).
- The court imposing the sentence – Different courts deal with different types of corruption cases, as such, higher courts are able to impose more severe penalties*.
- The severity of the offence – Obviously a person found guilty on 100 charges of corruption can usually expect a harsher sentence than a person guilty of one.
*The limitations of each court are as follows –
| General Corruption Offences | Lesser Offences | |
| High Court | Fine and up to life imprisonment | Fine and imprisonment for up to 10 years |
| Regional Court | Fine and imprisonment for up to 18 years | Fine and imprisonment for up to 10 years |
| Magistrate’s Court | Fine and imprisonment for up to 5 years | Fine and Imprisonment for up to 3 years |
In addition to the above, courts may also set another fine of up to 5x the amount involved in the corruption charge, such as in the case of briberies.
How do you Report Instances of Corruption?
As with most other crimes, allegations of corruption are normally investigated by the South African Police Service (SAPS) and the National Prosecution Authority (NPA). For the most part, individuals are expected to report incidents of corruption to their local police station (this can be done anonymously either online or by calling the anti-corruption hotline), thereafter the police may begin formal investigation procedures.
There are also many independent anti-corruption watchdogs that can be contacted (this is particularly useful if the corruption allegation is levelled against the police themselves).
For particularly serious allegations of corruption and wrongdoing, the police may refer the case to the Directorate for Priority Crime Investigation (DPCI) commonly referred to as the Hawks.
Who are the Scorpions/Hawks and When can they Step in?
The Scorpions were the main, independent anti-corruption agency in South Africa for many years, they were, however, disbanded in 2009 after the ANC claimed that government oversight was necessary for such an organisation as corruption within their ranks would lead to targeting of political figures.
As a result, the Hawks were formed to replace the Scorpions as a type of specialist unit. As mentioned, once an allegation of corruption has been made, the case may be referred to the Hawks for special investigation. That said, the Hawks usually investigate high-level corruption charges so it’s unlikely that they’ll become involved with more mundane cases.
Is Not Reporting Corruption a Criminal Offence?
In some cases, yes, refusing to report a case of corruption can make you guilty of a criminal offence even if you were not involved with the incident yourself.
Section 34 of the PCCAA notes that certain people ‘in positions of authority’ have a duty to report corruption, interestingly this extends to instances of suspected corruption.
Individuals who are considered to be in positions of authority include –
- The Director-General or equivalent officer of a national or provincial department.
- A municipal manager.
- Any public officer in a senior management service of a public body.
- A department head, rector or principal of a tertiary institution.
- The manager, company secretary or director of a company.
- A member of a close corporation.
- The executive manager of any bank or other financial institution.
- Any partner in a partnership.
- Chief executive officers.
- Any other person who is personable for the overall management and control of the business of an employer.
It should be noted that ignorance is not always a viable excuse in these situations. Section 34 also highlights that even if a person claims that they were unaware of the corruption, they may still be found guilty if they are deemed to ‘reasonably ought to have known’ of the corruption. Simply put, after considering the individual’s knowledge, training, skills, etc. The investigative authorities will determine whether or not a person in such a position could reasonably have been expected to know of the corruption that was taking place.
Are Whistleblowers Protected from Backlash in South Africa?
Yes, as long as the allegation of corruption is either true or could have been reasonably assumed to be true by the whistleblower, the Protected Disclosure Act of 2000 makes provisions for the protection of whistleblowers from occupational detriment that may occur after an allegation has been made.
Can someone be Fired for Suspected Corruption?
Sometimes there are people who are so openly corrupt that it seems like everyone ‘knows’ what’s going on, even if it hasn’t been officially investigated and proven. Can such a person be fired?
No, regardless of how sure you are that a corrupt practice is taking place, it needs to be explicitly proven before you can fire the individual/s. Attempting to fire workers on mere suspicion of corruption can backfire badly for the employer.
On the other hand, as previously mentioned, individuals in positions of authority have a duty to report those whom they reasonably suspect of wrongdoing. All in all, if you have a reasonable suspicion that a person is acting in a corrupt fashion, it would be wise to report this to the authorities and let them carry out an investigation. If they are found officially guilty of corruption, you will have a much easier time firing them.
In Conclusion – What is the Law of Corruption in South Africa?
Corruption is a serious offence in South Africa but, due to its many forms, it is sometimes difficult to accurately define. As such, the PCCAA goes into great detail to describe all the potential forms of corruption and wrongdoing and how they should be punished.
The penalties for corruption vary depending on multiple factors such as the type of offence in question and the severity of it. Many, less damaging forms of corruption are usually punished by fines and/or up to 5 years imprisonment, however, some of the more egregious cases can easily result in upwards of 15 years behind bars while provisions do exist for life sentences.
‘Lesser’ charges such as acting as an accessory to a bribery offence or obstructing an official investigation also carry the threat of fines and imprisonment though they are less intense than the aforementioned.
Certain individuals who are defined as being in ‘positions of authority’ have a legal duty to report corruption when they detect it. They are also required to report corruption that they may ‘reasonably suspect’.
Instances of corruption should be reported to the local police services or via the online anti-corruption hotline. Additionally, you can report corruption to any one of the many anti-corruption organisations throughout the country.
The anti-corruption group known as the Scorpions was formally disbanded in 2009 and replaced by the Hawks. Certain high profile or particularly difficult corruption cases may be referred to the Hawks by the SAPS for investigation.
Individuals should not be fired for suspected corruption, instead, employers should report cases to the relevant authorities if they have reasonable suspicion. Once a formal investigation takes place, the employer will have better grounds for dismissal if they are proven guilty.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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