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Caught in the Act

06 December 2004 Angelo Coppola

No more whiskey please, we are governed by the Corruption Act.

Evidence of corruption is commonplace and reported regularly in the media, and government wants to force directors and management to get more involved.

The Act is serious and bases itself on international and regional protocols, says Neil Kirby, a director at Werksmans, and its retrospective and doesn’t fall within the country’s boundaries.

So it could in theory cover a discussion held on a beach in Mauritius, 10 years ago.

The elements of corruption are fourfold, and include two parties, with some form of gratification, resulting in an action, that meets the criteria of section 34 of the Act.

Prevention and combating of corrupt activities Act – or Act no.12 of 2004, aka the Corruption Act, and its implications for directors and management, says Kirby, are onerous.

Section 34 is perhaps the most onerous of the sections because it focuses on the private and public sectors, and the general offence of corruption.

According to Kirby the private sector is as susceptible to corrupt activities, if not more so than the public sector.

It seems that in terms of employment corruption, section 10 makes it an offence to receive or offer an unauthorized gratification by or to a party to an employment relationship.

The emphasis traditionally has been on the public sector, and this highlights the fact that the public sector is perhaps a little more proactive than their colleagues in the private sector.

Kirby based his discussion on a survey conducted in South Africa, which was slightly skewed towards the commercial centres, and away from Limpopo, North West province and the Free State.

According to him, 62% of people surveyed said that bribery was becoming an acceptable means of doing business in the country, while only 14% reported that their company had been approached for a bribe in the past 12 months.

On a slightly different tack, interestingly the activity of corruption doesn’t have to have been a completed activity. It could even be a promise in the future and not necessarily completed either.

“It doesn’t even have to be a fact,” says Kirby.

Business regards crime as a serious problem. The obligations of the Act are onerous on company management and Kirby recommends that elements of the Corruption Act be incorporated into company policy.

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