John Oxenham
Primerio, Johannesburg
j.oxenham@primerio.international

Introduction

South Africa has, for decades, been grappling with the malaise of corruption. This has had a concomitant negative impact on public confidence, hindered economic growth through irregular expenditure and eroded the effectiveness of government institutions. There have, however, been notable developments in the country's efforts to update and enforce measures to fight corruption, which are traversed in this article.

Strengthening anti-corruption institutions

In order to address critically weakened institutional capacity and the ramifications of political interference, the National Prosecuting Authority (NPA) and the Directorate for Priority Crime Investigation (known as the ‘Hawks’) have been provided additional resources and personnel to enhance their capacity to investigate and prosecute corruption cases.

The NPA sought to enhance organisational capacity, strengthen performance through skills development, and has been able to better allocate its current human resources and hire people with further specialised skills and capabilities.

In the past year, the NPA has added roughly 450 new employees to its personnel. The NPA's Annual Report 2022–23 (the ‘Report’) also reflects that the number of employees will increase by an additional 120 in the coming year. Furthermore, to prosecute cases of corruption and organised crime, the NPA has launched an innovative, independent programme to boost personnel skills and capacity. The Report provided that ‘the initiative sought to assess and benchmark (both nationally and internationally) its skill levels within specialises components such as the Specialised Commercial Crimes Unit (‘SCCU’), the Asset Forfeiture Unit (‘AFU’), Organised Crime Component (‘OCC’), the Investigating Directorate (‘ID’) and the Specialised Tax Unit (‘STU’)’.

Asset forfeiture and recovery

South Africa has intensified its effort to recover assets acquired through corrupt conduct. The AFU has been actively pursuing civil forfeiture cases against individuals and entities suspected of illicit enrichment. In April 2023, the AFU, with the Hawk's support, secured an order to seize assets worth approximately ZAR 165m (approximately US$9m) from nine individuals connected to a complex case involving fraud, corruption, forgery, bribery and money laundering. The case at hand revolved around procurement practices conducted by the South African Police Services (SAPS) in preparation for the 2010 FIFA World Cup hosted by South Africa. Among others, the accused are prominent figures who were commissioners, businessmen and officials within the SAPS supply chain management department. As part of the enforcement measures, the bank accounts of all implicated parties have been frozen and the order to seize their assets has been executed.^[1]

International cooperation and collaboration

A significant stride for South Africa involved the recent development of a new policy directive specifically targeted at corporations to bolster its approach to alternative dispute resolution in anti-corruption enforcement. The corporate alternative resolution directive (C-ADR) follows the 2021 Anti-Bribery Recommendations adopted by the Organisation for Economic Co-operation and Development (OECD), which promote, inter alia, the use of non-trial resolutions (NTRs) by member countries when resolving criminal, administrative and civil cases with both legal and natural persons.^[2] The alternative dispute resolution mechanism, which is essentially a non-trial resolution, is an essential mechanism for South Africa. It has been developed to take on intricate corruption cases that involve multiple jurisdictions. The use of such mechanisms entails fewer financial resources (which is a longstanding fundamental challenge in South Africa) and less time in providing resolutions on complex multinational crimes.

Under the C-ADR directives, companies that are involved in corrupt conduct will now be able to resolve such matters with the NPA through alternative dispute resolution and, as a result, avoid facing criminal sanctions. In contemplating whether to institute criminal proceedings and sanctions or make use of C-ADR, the NPA will consider four specific principles:^[3]

1. Principle 1: legality and rationality where, inter alia, decisions will be made within the confines of the power and authority conferred by law on the NPA and members of the NPA;
2. Principle 2: public interest where, inter alia, a decision must be in line with objectively justifiable public interest considerations;
3. Principle 3: guided discretion that is guided by several principles and practical considerations; and
4. Principle 4: transparency.

A fundamental consideration of the C-ADR is the protection of employees from undue consequences that result from one or more individuals' corrupt conduct. Furthermore, the development of the C-ADR has given South Africa the platform to align itself with the global anti-corruption movement of tackling complex cases while working together with international authorities and involving mutual legal assistance. This is a significant achievement because South Africa has faced a period of stagnation and has certainly lagged behind international trends in terms of anti-corruption enforcement and alternative dispute resolution.

Notably, key figures in the sector, including the chairperson of the National Anti-Corruption Advisory Council, Professor Firoz Cachalia, have actively participated in initiatives aimed at advancing reform efforts. This involvement includes advocating for NTRs and encouraging civil society involvement, as demonstrated by Cachalia's participation in events such as the ‘Countering the Corrupt Conference’ that was hosted by Primerio alongside civil society partners, Konrad-Adenauer-Stiftung and Accountability Now.

To address critical governance issues and enhance accountability, there is a proposed amendment to the Constitution of the Republic of South Africa, 1996, which seeks to establish an Integrity Commission within Chapter 9 of the constitution. Its aim is to refine the jurisdiction and accountability frameworks governing key institutions, such as the Public Protector, the police service and the prosecuting authority. This amendment further addresses ancillary matters pertinent to these reforms.

Following this proposal, former prosecutor for the NPA and Member of Parliament for the Democratic Alliance (a South African political party), Glynnis Breytenbach, has recently taken a significant step in combating corruption. Through a notice published in the Government Gazette, Breytenbach signalled her intention to 'establish an Anti-Corruption Commission as a Chapter 9 institution' aligning with the principle that Chapter 9 institutions should report directly to Parliament and remain independent of executive influence or control.

Conclusion

South Africa faces difficulty in recovering money and assets that have been illegally transferred within and beyond its borders. However, the aforementioned developments indicate a significant expansion of the country's judicial and prosecuting authority. With the support of improved frameworks and cooperative efforts, the public, private and commercial sectors are now actively tackling the problem of domestic and offshore asset recovery.