An Analysis of the Failure of a Company to Prevent Bribery under the Prevention and Combating of Corrupt Activities Act 12 of 2004

Abstract

An innovative provision of the Prevention and Combating of Corrupt Activities Act 12 of 2004 is the recently introduced s 34A. This section establishes a new offence: members of the private sector and incorporated state-owned entities can be held liable for failing to prevent bribery by an associated person. To escape liability, the entity must prove that it had adequate procedures in place to prevent bribery. This article examines the interpretation, application and enforcement of s 34A. The article compares s 34A to s 7 of the UK Bribery Act, 2010, on which it is modelled, and makes recommendations for interpreting, applying and enforcing s 34A. The article argues that s 34A holds immense potential to curb the distressingly high levels of bribery in South Africa, but that its effectiveness and impact will depend on how it is enforced and on the collective commitment to upholding its principles.