Section 3 of the Prevention and Combatting of Corrupt Activities Act 12 of 2004 (PRECCA) contains the formulation of the general crime of corruption.
Any person who, directly or indirectly –
(a) accepts or agrees or offers to accept* any gratification* from any other person, whether for the benefit of himself or herself or for the benefit of another person; or
(b) gives* or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or for the benefit of another person in order to act, personally or by influencing another person so to act, in a manner –
(i) that amounts to the –
(aa) illegal, dishonest, unauthorised, incomplete, or biased; or
(bb) misuse or selling of information or material acquired in the course of the,
exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation;
(ii) that amounts to –
(aa) the abuse of a position of authority;
(bb) a breach of trust; or
(cc) the violation of a legal duty or a set of rules,
(iii) designed to achieve an unjustified result; or
(iv) that amounts to any other unauthorised or improper inducement to do or not to do anything,
is guilty of the offence of corruption.
Facilitation payments constitute gratification and would qualify as corruption under PRECCA
International anti-corruption conventions
South Africa is a party to the following international anti-corruption conventions:
- the United Nations Convention Against Corruption;
- the AU Convention Against Corruption;
- the OECD Anti-Bribery Convention; and
- the SADC Protocol Against Corruption.
How is bribery defined?
South African legislation does not specifically define bribery per se, it does however define corruption in such a way that it includes bribery as a form of corruption. South African legislation does not specifically distinguish between corruption involving public officials and corruption involving private persons. Bribery involving a public or private person/entity is therefore criminalised in South Africa. Both active and passive bribery are encapsulated by the South African legislative understanding of corruption and therefore both the act of offering a bribe and accepting a bribe are criminal offences.