Relevant novelties are based on the report and recommendations of the Zondo Commission.

Under Judicial Matters Amendment Act 15 of 2023 an organisation can be found guilty if a person associated with it provides, agrees to provide or offers to provide any advantage thereby committing an offence established by Chapter Two of Prevention and Combating of Corrupt Activities Act 12 of 2004* with the aim to get and/or keep the business and/or an advantage for the organisation in conducting business.

Relevant provisions are applicable to the private sector organisations and public corporations.

A person associated with an organisation is a person who provides services to the organisation or on behalf of the organisation regardless of the status of this person and whether the services are remunerated or not. Therefore, not only the employees and the management of the organisation, as it was before, but different kinds of contractors and other counterparties of the organisation will be considered as its associates.

The legal act provides for the possibility to exempt organisations from liability in the event that they provide evidence that they have adopted the appropriate measures to prevent corruption offences. At the same time, the act does not establish any specific sanctions for inability of organisations to prevent corrupt practices; there are no explanations of what measures will be considered as “appropriate” in laws and other regulations.

The act is not retroactive: its provisions will be applicable only to the current, continuing and future crimes starting from the moment of its adoption. However, it is still possible to hold organisations liable for past corruption crimes in line with Criminal Procedure Act 51 of 1977 that provides for the liability of legal persons for offences committed by their employees or management.

*As per Prevention and Combating of Corrupt Activities Act 12 of 28 April 2004, a corruption offence is a situation where any person directly or indirectly:

• Accepts, agrees to accept or offers to provide remuneration from any person in his/her favour and/or in favour of third parties;
• Provides, agrees to provide or offers to provide remuneration in favour of any person and/or in favour of third parties in exchange for:

1. Illegal, unfair and/or incompetent and/or biased act (omission to act);
2. Abuse and/or sale of information and/or materials obtained in the exercise of functions proceeding from constitutional, legislative, contractual or other legal obligations;
3. Abuse of office;
4. Violation of obligations or rules established by law;
5. Other acts (omissions) aimed at getting illegal benefits/advantages.

In particular, corruption offences include:

1. Active and passive bribery of:

• a public official;
• a foreign official;
• a representative of an authority;
• a member of a legislative body;
• a member of a judiciary body;
• a member of a prosecution body;
• a witness.

2. Active and passive bribery of officials upon:

• their recruitment;
• conclusion of contracts also in public procurement;
• organisation of sport events;
• organisation of gambling;

3. Offences related to conflict-of-interest situations.