State of the Nation 2024
Type of recommendation
Responding to abuses by the private sector
Part 1, Volume 3, Page 852
Category- Legislative Change
- Responding to abuses by the private sector
Part 1, Volume 3, Page 852
Introduce legislation to allow deferred prosecution agreements
Category:
- • Legislative Change
- • Responding to abuses by the private sector
Description:
The government to introduce legislation for the introduction of deferred prosecution agreements by which the prosecution of an accused corporation can be deferred on certain terms and conditions: - that a company has self-reported facts from which criminal liability could be inferred and has co-operated fully in making such report - that a company has agreed to engage in specific conduct intended to ensure that such conduct is not repeated - that a company has paid a fine or been subject to other remedial action - that the terms and conditions of the agreement has been sanctioned by the Tribunal Agency
Responsible to implement:
• Department of Justice and Constitutional Development
Actions on recommendations
The South African Law Reform Commission (SALRC) is considering deferred prosecution agreements as part of its review of the criminal justice system. This is a broad investigation that seeks to ensure efficiency in the adjudication and finalisation of criminal cases. It is expected to be finalised towards the end of the 2023/24 financial year. Deferred prosecution agreements will receive attention, in this review, during the current financial year.
Progress as at November 2023
A project plan for the development of a reviewed and new Criminal Procedure Act has been developed and a project team established. The SALRC and Department of Justice is partnering with the Department of Correctional Services, SAPS, Legal Aid and the NPA in this project. A workshop was held with stakeholders in June 2023, and work is underway to prepare the Bill in Q3 2023.
Part 1, Volume 3, Page 854
Category- Legislative Change
- Responding to abuses by the private sector
Part 1, Volume 3, Page 854
Amend legislation on failure of persons to prevent bribery
Category:
- • Legislative Change
- • Responding to abuses by the private sector
Description:
In order to strengthen the duty of private-sector entities to put in place measures against bribery, it is recommended that the Prevention and Combating of Corrupt Activities Act be amended by the introduction of a section 34A reading as follows: “34A Failure of persons or entities to prevent bribery (1) Any member of the private sector or any incorporated state-owned entity (‘A’) is guilty of an offence under this section if a person (‘B’) associated with A gives or agrees or offers to give any gratification prohibited under Chapter 2 to another person (‘C’) intending- (a) to obtain or retain business for A or (b) to obtain or retain an advantage in the conduct of business for A, save that no offence shall be committed where A had in place adequate procedures designed to prevent persons associated with A from giving, agreeing or offering to give any gratification prohibited under Chapter 2. (2) For the purposes of section 34A(1), a person (‘B’) is associated with A if (disregarding any gratification under consideration) B is a person who performs services for or on behalf of A. The capacity in which B performs services for or on behalf of A does not matter.”
Responsible to implement:
• Department of Justice and Constitutional Development
Actions on recommendations
The recommendation to amend the Prevention and Combating of Corrupt Activities Act on the failure of persons or entities to prevent bribery will be included in the Judicial Matters Amendment Bill, which will be submitted to Cabinet in the latter half of 2022.
Progress as at November 2023
The amendment of the Prevention and Combating of Corrupt Activities Act on the failure of persons or entities to prevent bribery is included in the Judicial Matters Amendment Bill introduced in Parliament in March 2023.
The Judicial Matters Amendment BillPart 1, Volume 3, Page 854
Category- Legislative Change
- Responding to abuses by the private sector
Part 1, Volume 3, Page 854
Criminalise donations made in expectation of tenders or contracts
Category:
- • Legislative Change
- • Responding to abuses by the private sector
Description:
It is recommended that the Political Party Funding Act No. 6 of 2018 be amended to criminalise donations to political parties in the expectation of or with a view to the grant of procurement tenders or contracts as a reward for or in the recognition of such grants having been made.
Responsible to implement:
• Department of Home Affairs
Actions on recommendations
The recommendation to amend the Political Party Funding Act to criminalise donations to political parties in the expectation of access to procurement tenders or contracts is accepted. This amendment will be made alongside other consequential amendments that will be required following the approval of the Electoral Amendment Bill currently before Parliament.
Progress as at November 2023
The Act is part of legislation being reviewed in the wake of the Electoral Amendment Act, 2023 which provides for independents. Section 10 of the Act already makes it an offence to give or receive a donation for any reason other than party political reasons, and members receiving a donation that is not on behalf of a party. Section 8 also makes it an offence to receive donations from a prohibited source.
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