n Acta Criminologica: Southern African Journal of Criminology - Assessing South Africa's Prevention and Combating of Corrupt Activities Act

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The author assesses the strength and weaknesses of the Prevention and Combating of Corrupt Practices Act 12 of 2004 (PCCAA) against the background of his LLM-Dissertation on this topic and also compares it to the German Law. He focuses on defining the factual phenomenon of corruption as a principle-agent-conflict, more precisely as an illegal exchange between the agent and a third person, and evaluates how the PCCAA manages to tackle this problem. The author mainly criticises that the scope of the offences of the PCCAA is partially too broad and thus, inter alia, also includes mere immoral conduct, because it fails to focus on the aforementioned definition of corruption. The author generally approves the strategy of "unbundling" of the PCCAA, but emphasizes that the 'catch-all'-offence as stipulated by section 3 and the reinstatement of the common-law offence of bribery interferes with this strategy. While the author holds most parts of the Act to be rather extensive and even too vague, he stresses that it otherwise shows a serious loophole, because it fails to criminalise the so-called 'feeding' during the contacting-phase, i.e. gratification without any counter-performance expected. Furthermore, he criticises the presumption regarding the mens rea as perhaps formally constitutional, but in fact as an infringement of the in dubio pro reo principle and the accused's right to remain silent without having to fear negative consequences. From the view of the author, the duty to report corruption is a very useful tool, but runs the risk of being is proportional without providing due protection for whistleblowers. The author fully approves the register for tender defaulters, the competence to investigate "unexplained wealth" and the establishment of extra-territorial jurisdiction, but fears that the offence of omitting to give any information or explanation as stipulated by section 23(7) (b) infringes on the freedom from self-incrimination and the right to remain silent. In general, the author judges the PCCAA to be a decisive and effective, but also partially excessive measure against corruption and he suggests that a more restrictive Act with a more clear-cut scope would receive greater general acceptance and credibility while it would be much easier to apply.

Achieving good governance and overcoming the practices of profligacy and corruption inherited from the apartheid government and its economy are the two most important challenges facing South Africa. Corruption has burgeoned in both the public and private sector since the transition and is the factor which most preoccupies those who express concerns about South Africa's future (Camarer 1997: 31).


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