The crime of corruption developed from the common law offence of bribery. It was a crime under common law for any person to offer or to give to an official of the State any unauthorized consideration in return for action or inaction by that official in an official capacity, or for any such official to receive any such consideration from any person for such a purpose.
The common law of offence of bribery could initially only be committed by or in respect of state officials. The Prevention of Corruption Act, Act 6 of 1958 was passed to extend the offence of bribery to non-state officials, as it was necessary to deal with bribery in the private sector as well. The extended offence was referred to and is still referred to as ‘corruption’.
Until 1992, the common offence of bribery and the statutory offence of corruption coexisted.
In the Prevention of Corruption Act, Act 94 of 199, Parliament repealed and codified the common law offence of bribery. This Act encompassed both the common law of offence of bribery and the previous statutory enactments on corruption. The Act therefore created a wider and all-embracing offence of corruption to deal with corrupt activities in both the public and private sector.
To combat corruption even more effectively, the Prevention and Combating of Corrupt Activities Act, Act 12 of 2004 was passed and it came into effect on 1 April 2004. This Act comprehensively deals with all matters relevant to the subject of corruption.
The Prevention and Combating of Corrupt Activities Act makes provision for a general offence of corruption, and it also specifies offences relating to specific groups of persons. These include corrupt activities relating to public officers, foreign public officials, agents, members of the legislative authority, judicial officers, and members of the prosecuting authority.
Sections 3 to 9 of the Act intend to punish the activity of giving and accepting of any gratification in order to act in a manner that amounts to, amongst others, ‘the illegal, dishonest, unauthorized or biased exercise or performance of powers, duties or functions; or to the abuse of a position of authority, a breach of trust, or the violation of a legal duty or set of rules’.
The Act also stipulates the offence of receiving or offering an unauthorized gratification by or to a party to an employment relationship.
The Prevention and Combating of Corrupt Activities Act also specifies offences in respect of corrupt activities relating to specific matters. These include corrupt activities relating to witnesses, contracts, tenders, auctions, sporting events and gambling games or games of chance. Miscellaneous offences are described, relating to possible conflict of interest and other unacceptable conduct, for instance, conduct aimed at concealing corrupt activities and at hindering or obstructing the investigation thereof.
The Prevention and Combating of Corrupt Activities Act also makes provision for a Register for Tender Defaulters, in which the particulars of the offender (which may be an enterprise), as well as the records of the conviction and sentence will be kept. As a result of such an endorsement, National Treasury may terminate any agreement with such an offender.
Corruption is a favour offered for a favour granted in return, during which transaction damage is done to the organisation concerned.
For the effective enforcement of the provisions for the Prevention and Combating of Corrupt Activities Act, it is essential that corrupt activities be brought to the attention of the State by reporting such activities. It is stated in the preamble of the Act that the State requires the support and involvement of individuals outside the public sector if the State’s efforts to prevent and combat corruption are to be efficient and effective.