One of the proposals on the State Expropriation Report by Chief Justice Raymond Zondo was to make failure to prevent bribery a new offense for enterprise.

According to law firm Bowmans, this recommendation from Zondo would require an amendment to the Prevention and Anti-Corruption Act 12 of 2004 (PRECCA).

The proposal after the Supreme Court of Pretoria granted leave on October 4, 2022 to allow Zondo to correct the final volume of the report, was submitted to the President in June 2022.

While Article 34 of PRECCA imposes obligations on companies that include cases of corruption in their reports, it does not impose criminal sanctions in the absence of systems to prevent corruption. that corruption. The criminal department is only charged if the company fails to issue the requested statements.

However, this is not satisfactory for Zondo. It suggests amendments to the PRECCA that would require companies to prevent corruption from happening in the first place and hold companies criminally responsible if they fail to do so, Bowmans said.

. This raises the question of what “adequate procedures” in PRECCA mean.

According to Bowmans, there is no definition or guidance in Zondo’s proposed recommendation, but the meaning of “full procedure” may not be as ambiguous as it appears.

The law firm cited the UK Bribery Act 2010 which contains a section that covers corporate liability if corruption is not prevented. In addition, a business will be entitled to protection under the UK Bribery Act if it can demonstrate that, despite a particular bribery case, it had the proper procedures in place. to prevent those involved in doing so.

Given the similarities between the UK Bribery Act and the amendments proposed by Chief Justice Zondo, Bowmans outlined six principles that guide the determination of what constitutes proper procedure under the Bribery Act. UK highway.

These principles can be used as a reference point to guide definitions of what constitutes “appropriate procedure” for Zondo’s proposed new offense.

Here are six principles outlined by Bowmans:

• Principle 1:

Proportionate Procedure – A company’s procedures to prevent bribery by those involved should be commensurate with the risk. the bribery risk it faces and is commensurate with the nature and complexity of the company’s activities. Activities.

• Principle 2:

Commitment at the top – The company’s top management must be committed to preventing corruption.

• Principle 3:

Risk assessment – The company should assess the nature and extent of internal and external corruption risks.

• Principle 4:

Obligation of care – The company must apply appropriate due diligence procedures for those providing or will provide services on behalf of the company.

• Principle 5:

Communication – The company must ensure that its anti-corruption procedures are understood company-wide, including having a training program on various policies.

• Principle 6:

Monitoring and Review – The company should monitor and review procedures designed to prevent bribery of those involved in order to improve those procedures.

These Principles can provide guidance to companies seeking to develop and implement appropriate procedures – at least until the legislator publishes its own guidance on the new proposed section. from PRECCA.