South Africa’s principle legislation dealing with the combatting and prevention of corruption and corrupt activities is The Prevention and Combatting of Corrupt Activities Act, Act 12 of 2004 (“PACCA”).
The Act not only establishes the general offence of corruption, but it also defines various specific acts and ancillary offences.
In terms of PACCA certain persons holding positions of authority are obligated to report corrupt transactions/conduct and other common law offences such as theft, fraud, extortion and forgery.
Section 34(1) of PACCA creates this duty as follows:
‘any person who holds a position of authority and who knows or ought reasonably to have known or suspected that any other person has committed an offence under Part 1, 2, 3 or 4, or section 20 or 21…, or the offence of theft, fraud, extortion, forgery or uttering a forged document, involving an amount of R 100 000 or more, must report such knowledge or suspicion or cause such knowledge or suspicion to be reported to the police…’
It is therefore important to note that reportable offences must involve an amount of R100,000.00 or more.
TO WHOM MUST A REPORT BE SUBMITTED?
A report under Section 34(1) must be made to a police official in the Directorate for Priority Crime Investigation (DCPI / HAWKS).
The Reporting Guide which outlines the full requirements to be complied with can be accessed on the DCPI’s website.
REPORTING CRITERIA
There are no hard and fast criteria or set rules which can be utilized to decide whether reporting is necessary in a particular incident, however the following can be used as a guideline:
- Has the threshold amount been satisfied?
A first point of screening would be to determine whether the R100 000 threshold has been met.
- Has there been an unlawful act?
Once the threshold amount has been established the next question to be answered would be whether there has been a corrupt activity or a common law offence.
IMPORTANT TO NOTE
There must be a reasonable suspicion with regard to such conduct and same must be supported by evidence.
Mere speculation is not sufficient. Accordingly, it must be established whether there is prima facie or primary evidence of corrupt conduct – which would then necessitate the need for reporting.
If facts are inconclusive or if there is doubt whether the evidence meets the threshold to report the prudent approach would be to report same and the onus would be on the authorities whether to prosecute the matter further. This would eliminate the risk of non-compliance with the provisions of the Act.