South African court clarifies what may be a corrupt offer

According to Johannesburg-based anti-corruption law expert Edward James of Pinsent Masons, the court case has made the legal position on what constitutes a corrupt offer “quite clear” and companies need to be aware that they could be held strictly liable for inappropriate offers made by associated persons, even if the offers are in vague terms and not taken any further.

The case involves former South African State Security Minister Bongani Bongo, who was previously charged for alleged corruption. In the initial corruption trial, he did not have to present his case. This is because under South Africa’s Criminal Procedure Act, a defendant can get an order of discharge and acquittal at the conclusion of the State’s case if there is no evidence that they committed the crime.

In 2021, Bongo applied for such a discharge and acquittal when the state had finished presenting its case and evidence against him. His application was granted by the Western Cape High Court due to lack of evidence and he was acquitted of corruption. The judge that made the decision was the former judge president of the court – John Hlophe. He himself was impeached in February 2024 for trying to influence judges from the Constitutional Court in a case involving former president of South Africa, Jacob Zuma.

In the appeal case, the SCA found the High Court ruling contained several mistakes of law that merited overturning the discharge and it has ordered a retrial of the corruption case.

“Whilst Bongo has still not been found guilty and the case will go back to a full retrial, the SCA has made the legal position on what can constitute a corrupt offer quite clear. Simply making an offer to try to induce a proscribed act can cross the line of being corruption,” said James.

He added that the offer does not need to be in specific terms. For example, the person making the offer does not need to offer to pay someone a specific amount of money or agree other specific details.

Bongo’s alleged corruption involved an offer by Bongo to Mtuthuzeli Vanara, who was the senior manager of the legal and constitutional services in the office of the speaker of parliament.

The state’s case is that Bongo made an offer of a bribe to Vanara to try to get him to fake an illness or take sick leave so that the parliamentary committee’s inquiry into the affairs of state-owned electricity company Eskom would be delayed. The Eskom parliamentary inquiry was a precursor to the more well known Zondo Commission, a judge-led inquiry into allegations of state capture, corruption and fraud in the country’s public sector.

On the evidence Vanara presented to the trial court, during a single meeting Bongo had offered money to Vanara, although it was in the form of ‘a blank cheque’ as Bongo said to Vanara “just name your price”. Vanara’s evidence was that he refused the offer and did not accept to help delay the Eskom inquiry.

Under the South African law, there must be an offer or actual giving of “gratification” to do something inappropriate, which is referred to as “proscribed act” in the SCA decision, in order for the crime of corruption to be committed.

The trial court found that Bongo had not made a corrupt offer to Vanara to perform a proscribed act. In coming to its decision, the trial court placed particular emphasis on three factors - nobody asked Vanara for his bank account details; a specific amount of money had not been offered; and after the first meeting there was no follow up.

The SCA ruled that the trial court’s decision was legally wrong. In the judgment of the SCA, it was stated that: “There can, in my view, hardly be a more straightforward and unambiguous account of the unlawful offering of gratification to a public officer in order to induce him to perform a proscribed act. That the trial court was oblivious to this unequivocal and overt evidence of the commission of the crime of corruption can only be ascribed to its fundamentally erroneous understanding of the elements of that crime.”

James commented that the decision is particularly important in light of the new failure to prevent corruption offence under section 34A of the Prevention and Combatting of Corrupt Activities Act (PRECCA), which came into law last month.

“Companies may find themselves being held strictly liable for corrupt offers made by associated persons, even if the offers are in vague terms and not taken any further. A corrupt offer does not have to include how much money will be paid as a bribe or how it will be paid. If it is clear that a bribe is being offered and the other elements of corruption are met, the conduct may constitute the crime of corruption. It is important for companies to adopt adequate procedures to prevent associated persons from bribing so they can raise a defence against the new offence,” he explained.

“Whilst there is currently no guidance in South Africa on what adequate procedures are, training employees will be a key step among other key controls. At a practical level, the training that companies provide to their employees should help them understand that simply making a corrupt offer is a crime and that the threshold for this is low,” James added.