South Africa is a party to six international agreements and conventions aimed at combating corruption:

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1 INTERNATIONAL ANTI-CORRUPTION CONVENTIONS South Africa is a party to six international agreements and conventions aimed at combating corruption: 1. The Southern African Development Community Protocol against Corruption ( SADC Corruption Protocol ); International Anti-Corruption Conventions... 1 Legislative Framework for Combating Corruption... 1 Enforcement Bodies... 2 Perspectives... 3 Foreign Bribery... 3 Anti-Corruption Initiatives... 3 Legal Profession Input... 4 Recent Enforcements... 4 Recent Developments & News The Southern African Development Community Protocol on Combating Illicit Drugs ( SADC Drugs Protocol ); 3. The African Union Convention on Preventing and Combating Corruption ( AU Convention ); 4. The United Nations Convention against Corruption ( UNCAC ); 5. The United Nations Convention against Transnational Organised Crime ( UNTOC ); and 6. The Organisation for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions ( OECD Convention ). The Council for the Advancement of the South African Constitution ( CASAC ) has outlined South Africa s international obligations based on a comprehensive analysis of the conventions and protocols 1 : 1. Establish an independent anti-corruption agency(ies); 2. Ensure that steps are taken to investigate and prosecute corruption; 3. Prevent corruption by removing obvious opportunities for corruption; 4. Educate the public on the harms of corruption; 5. Ensure transparency and access to information when combating corruption; 6. Establish mechanisms that encourage participation by the media, civil society and non-governmental organisations, in the fight against corruption; 7. Adopt measures that address corruption the public and private sector; and 8. Co-operate with, and assist, other states in criminal matters. 1 Corruption: Towards a Comprehensive Societal Response, CASAC, 1 December Available at: (last accessed 26 January 2012). The obligations under these international agreements have been given effect through South Africa s national law, particularly the Prevention and Combating of Corrupt Activities Act 2004 ( PCAA ), South Africa s main anti-corruption legislation. LEGISLATIVE FRAMEWORK FOR COMBATING CORRUPTION Prevention and Combating of Corrupt Activities Act The PCAA is South Africa s main anti-corruption law. It creates a general offence of corruption that includes giving and receiving bribes, whether directly or indirectly, thus capturing intermediaries such as members of the legal profession (section 3 PCAA). 2 Available at (last accessed 26 January 2012). 1

2 Sections 4-16 specify independent offences of corruption relating to certain types of individuals and matters: ENFORCEMENT BODIES - public officers (section 4); - foreign officials (section 5); - agents (section 6); - members of the legislature (section 7); - judicial officers (section 8); - members of the prosecuting authority (section 9); - private parties in an employment relationship (section 10); - witness and evidential material (section 11); - contracts (section 12); - procuring and withdrawal of tenders (section 13); - auctions (section 14); 3 - sporting events (section 15), and - gambling or games of chance (section 16). A conviction under these offences could result in severe penalties, including a fine of up to five times the value of the improper benefit, or life imprisonment if a sentence is handed down by a High Court (section 26(1)(a)(i)). The maximum time of imprisonment imposable by a regional court and magistrate s court is 18 years and five years, respectively (section 26(1)(a)(ii) & (iii)). Other Legislation with Corruption-related Provisions Various other South African laws impose specific duties and provide legislative tools to combat corruption. For example, the Financial Intelligence Centre Act 2011 ( FICA ) establishes a regulatory framework to identify suspicious proceeds that are possibly derived from illegal activities. Other laws include those relating to: The agencies responsible for investigating suspected acts of corruption include the Directorate for Priority Crime Investigation (the Hawks ), which is a body within the South African Police Service ( SAPS ), the Special Investigating Unit ( SIU ), and the Asset Forfeiture Unit ( AFU ) within the National Director of Public Prosecutions ( NDPP ). As noted below, the South African Police Service Amendment Act 2008, which created the Hawks, was declared unconstitutional and is currently under legislative review. The National Prosecuting Authority ( NPA ) is responsible for prosecuting corruption offences. The Justice Crime Prevention and Security ( JCPS ) cluster of the government has specially mandated responsibility for: Output 3: addressing corruption within the JCPS cluster; and Output 5: aimed at reducing the level of corruption, thus improving investor perception, trust and willingness to invest in South Africa. The NDPP issued a directive in August 2010 prioritising the prosecution of corruption, in line with Output 5. The directive mandates that all corruption cases be managed by the Specialised Commercial Crimes Unit ( SCCU ) of the NPA, a central register be kept for all corruption prosecution and sets a goal to substantially increase corruption prosecutions for 18 months. As at December 2011, approximately 400 cases were finalised, and the SCCU has sustained a 90%+ conviction rate over the last few years. (i) corruption in the procurement context (Public Finance Management Act 1999, Municipal Finance Management Act 2003, Municipal Systems Act 2000); (ii) the protection of whistle-blowers (Protected Disclosures Act 2000, Companies Act 2008); (iii) codes of conduct for public officials (Public Service Act 1994, Executive Members Ethics Act 1998, Financial Management of Parliament Act 2009, Judicial Service Commission Act 1994 and Amendment of 2008); and (iv) investigation and prosecution (National Prosecuting Authority Act 1998 and Amendment of 2008, South African Police Service Act 1995 and Amendment , Special Investigating Units and Special Tribunals Act 1996, Prevention of Organised Crime Act 1998, Public Protector Act 1994, Public Audit Act 2004). 3 Downer, B, Deputy Director of the NPA, Speech to the Corruption Hunters Conference, Cape Town, 12 December The South African Constitutional Court recently declared the South African Police Service Amendment Act of 2008 unconstitutional in Glenister v SA (March 2011). The Court has given a stay of invalidity for 18 months to allow the South African Parliament time to amend the legislation. 2

3 PERSPECTIVES ON CORRUPTION IN SOUTH AFRICA (TRANSPARENCY INTERNATIONAL INDICES) Public perception on the level of corruption in South Africa has worsened over the past five years, according to the Transparency International Corruption Perceptions Index ( CPI ). The most recent survey shows South Africa scoring 4.1 out of a possible perfect SOUTH AFRICA CPI clean score of 10, ranked at #64 out of 183 countries surveyed. Year Score Rank In a world-wide public opinion survey, the Global Corruption Barometer, 62% of respondents said that they felt the level of corruption in South Africa has increased over the last three years (only 25% felt that corruption had decreased, whilst 14% felt that there was no change). Respondents also felt that the police, which includes the agency responsible for investigating corruption, were the most affected by corruption, scoring 4.4, where the maximum score of 5 corresponds with most corrupt. 45% of respondents felt that the current government s actions to combat corruption were ineffective, 44% felt that they were effective, and 11% felt they were neither effective nor ineffective. South Africa fared better on the Bribe Payers Index 2011, scoring a 7.6, where a maximum score of 10 corresponds with the view that companies from that country never bribe abroad. FOREIGN BRIBERY Enforcement of cases involving foreign bribery is rare. At the time of an OECD on-site visit in 2010, South African officials confirmed that four cases of bribery of foreign public officials had been opened for investigation. But the lead examiners noted that these preliminary investigations were opened within the three months preceding the on-site visit the lead examiners are seriously concerned by this lack of progress and proactivity in investigating foreign bribery allegations. 5 ANTI-CORRUPTION INITIATIVES Several governmental multi-agency initiatives aimed at combating corruption have been established, such as the Anti-Corruption Task Team (the Hawks, SIU, and AFU) and the Special Anti-Corruption Unit (a body within the Department of Public Service and Administration acting in partnership with the SIU). The AFU plays an additional role in anti-corruption initiatives by securing restraint and forfeiture orders in respect of the proceeds of crime. The National Treasury also works on prevention as part of a collaboration between the Auditor-General, South African Revenue Service and the Financial Intelligence Centre. CASAC, a non-profit organisation established in late 2010 as the voice of the Constitution, has been active in the fight against corruption, for example by launching its Red Card 5 South Africa: Phase 2 Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 2009 Recommendations for Further Combating Bribery of Foreign Public Officials in International Business Transactions, OECD Working Group on Bribery in International Business Transactions, 17 June 2010 (updated 13 July 2010). 3

4 Corruption Campaign, which call[s] on all people to Red Card Corruption and provides an online form for individuals to pledge neither to receive nor pay a bribe. 6 LEGAL PROFESSION INPUT Currently, there is little evidence that the law societies or other legal associations in South Africa have been significantly involved in the dialogue of combating corruption. The Pan African Lawyers Union ( PALU ) has undertaken a campaign to tackle high-level corruption and has jointly organised an annual capacity-building seminar for commercial lawyers with the Law Society of South Africa ( LSSA ) over the last three years. The seminar is more focused on commercial matters, such as negotiations, dispute resolution and best practices in commercial transactions. 7 RECENT NOTABLE ENFORCEMENTS Shabir Shaik Shaik was President Zuma s former financial advisor. In May 2005, he was convicted of corruption and fraud in connection with the arms deal of September Zuma was implicated and charged as well, but after several rounds in the courts, the charges were dropped on a procedural point, and Zuma was subsequently elected president in May Jackie Selebi Selebi, a former national police commissioner, allegedly received 98,000 in bribes from a convicted drug-trafficker, Glen Agliottie. Selebi was charged for corruption, fraud, racketeering and defeating the ends of justice. On 2 July 2010, he was convicted on the corruption charge, sentenced to 15 years imprisonment, and subsequently released on SAR20,000 bail. Selebi is the first police commissioner to be arrested and convicted of a serious crime involving corruption, and the verdict is viewed as a victory over corruption. 8 Sicelo Shiceka Shiceka was the Minister of Co-operative Governance and Traditional Affairs. The Public Protector investigated allegations that Shiceka used public funds for his private benefit and concluded that he had violated the Executive Ethics Code, the Public Protector Act, and the Constitution. This investigation represents the first time MPs from the ANC have officially requested an investigation of a Cabinet Minister for corruption. 9 Gwen Mahlangu-Nkabinde Public Works Minister Mahlangu-Nkabinde was found to have irregularly authorized lease agreements for the procurement of police officers worth millions of dollars. 10 She has since been removed from office Red Card Corruption Pledge, CASAC website, available at: (last accessed 26 January 2012). 7 African Lawyers take campaign against corruption to Cape Town, Vanguard News, 24 May 2011, available at: Seminar On Capacity Building for Negotiating Complex Commercial Transactions and Disputes Resolution in Northern Africa, African Development Bank, 24 January 2012, available at: (last accessed 26 January 2012). 8 The Global Integrity Report: South Africa 2010 Timeline, available at: (last accessed 26 January 2012). 9 Minister s ethics probe first since 94, News 24, 14 April 2011, available at: The Public Protector s report is available here: (last accessed 26 January 2012). 10 Zuma shakes up Cabinet in S. Africa corruption probe, CNN, 24 October 2011, available at: (last accessed 26 January 2012). 4

5 Bheki Cele Cele, the police commissioner who replaced Selebi, has been suspended from duty due to charges of corruption in connection with the charges laid against Mahlangu-Nkabinde. The inquiry into the allegations of misconduct is due to commence on 13 February RECENT DEVELOPMENTS AND NEWS An anti-corruption hotline was launched on 14 September 2009 in response to concerns about corruption and after demonstrations against the government. Within the first three hours, the hotline received over 7,300 complaints from citizens and was subsequently unable to handle the volume of incoming calls, indicating a need within the country for corruption reporting mechanisms. 12 The National Anti-Corruption Forum adopted resolutions to address concerns about the state of corruption in South Africa, as well as the initiative and efforts required to combat corruption, at its Fourth National Anti-Corruption Summer in December The resolutions can be accessed at: The Congress of South African Trade Unions ( COSATU ) launched an anti-corruption watchdog called Corruption Watch, on 27 January Corruption Watch is supported and financed by corporate foundations and companies but will operate independently of the government and organised business, staffing its own lawyers, auditors and accountants as its case officers. Justice Minister Jeff Redebe lauded the initiative at the launch, and the ANC has been quick to throw its support behind the new organisation 14. Sceptics, however, query whether Corruption Watch will be effective given that it does not have legal standing, and lacks the powers of agencies such as the Special Investigating Unit and the Hawks. 15 Corruption Watch does however create a mechanism to expose corrupt activity and is actively lobbying institutions such as the Johannesburg Stock Exchange to require listed companies, in particular, to incorporate anti-corruption policies into their business practises South Africa s Jacob Zuma fires top ministers, BBC News, 24 October 2011, available at: (last accessed January 26, 2012). 12 SA Corruption hotline swamped, BBC News, 9 October 2009, available at: (last accessed 27 January 2012). 13 Corruption busters ready to rumble, Business Report, 27 January 2012, available at: (last accessed 27 January 2012). 14 Corruption Watch wins backing of ANC, Cape Argus, 27 January 2012, available at: (last accessed 27 January 2012). 15 Corruption Watch a bold step in the right direction, The Editor, The Times Newspaper, 27 January 2012, available at: (last accessed 27 January 2012). 16 Powell, S, Corruption becoming endemic, Corruption Watch, 12 January 2012, available at: (last accessed 8 February 2012). 5