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Report No. 258

G. South Africa39

39 The information on South Africa has been taken from the 'Country Review Report of South Africa', Review by Mali and Senegal for the review cycle 2010-2015, United Nations Office on Drugs and Crime; see also Executive summary on South Africa, Note by the Secretariat, Fourth Session of the Implementation Review Group, Conference of the States Parties to the United Nations Convention Against Corruption, UN Doc. No. CAC/COSP/IRG/I/2/1/Add.9 (2012).

3.8.1 South Africa signed and ratified the UNCAC in 2004. The institutions that fight against corruption in South Africa include the Anti-Corruption Task Team, Directorate of Priority Crime Investigation, National Prosecution Authority, Specialised Commercial Crimes Unit, Special Investigation Unit, National Anti-Corruption Forum and the Public Protector.

3.8.2 Clauses (a) and (b) of Article 15 of the UNCAC are codified under section 3 of the Prevention and Combating of Corrupt Activities Act, 2004 ("PRECCA"), which criminalises the offence of corruption in general, namely, the offer (clause (b)) or acceptance (clause (a)) of gratification, directly or indirectly, to any person, whether for the benefit of that person or for another person, in order to act, personally or by influencing another person, in a manner that is unlawful or amounts to an abuse of power or breach of trust.

A "public officer" is defined under section 1 but does not specifically include legislators, judicial officers and prosecutors. Nevertheless, the actions of such officials are covered within the scope of the PRECCA under sections 7, 8 and 9.

3.8.3 In the context of paragraph 1 of Article 16 of the UNCAC, section 5 of PRECCA read in conjunction with section 3 criminalises the offence of active bribery of foreign public officials and officials of public international organisations. Passive bribery of such officials under paragraph 2 of Article 16 is not specifically penalised under PRECCA. However, through the general prohibition under section 3 of PRECCA which applies to "any person", it is possible to penalise the acceptance of a bribe by a foreign public official or an official of a public international organisation.

3.8.4 In the context of jurisdiction, section 90 of the Magistrates' Court Act, 1944 and section 35 of PRECCA allows for the exercise of jurisdiction over all criminal offences that are committed within the territory of South Africa. Under section 35(1) of PRECCA, jurisdiction is exercisable over all offences covered under the Act, regardless of the act constituting an offence at the place of its commission in the instance the alleged offender is a citizen, or is an ordinary resident or has been arrested in the territory of the South Africa.

Under section 35(2), jurisdiction can also be exercised over offences that occur outside South Africa, notwithstanding the act constituting an offence in the place of its commission, if (a) such an act affects or is intended to affect a public body, a business or any other person in South Africa, (b) the alleged offender is found in the territory of South Africa, and (c) the offender is not extradited by South Africa. Citizens of South Africa who commit crimes in foreign jurisdictions but are not extradited abroad can also be prosecuted under section 35(2) of PRECCA.

Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations - A Study and Proposed Amendments Back

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