Background

The Prevention and Combating of Corrupt Activities Act 12 of 2004, commonly known as “PRECCA”, is a cornerstone in South Africa’s legislative framework aimed at combating corruption. Among its various provisions, Section 34(1) is particularly significant as it imposes a duty to report actual or suspected corrupt activities on certain individuals holding positions of authority. This duty is both a legal obligation and a moral imperative aimed at fostering transparency and accountability.

Legal Framework of Section 34(1)

Section 34 of PRECCA mandates that certain individuals must report corrupt activities to the DPCI. Specifically, Section 34(1) states:

“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 (a) an offence under Part 1, 2, 3, or 4, or section 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2; or (b) the offence of theft, fraud, extortion, forgery, or uttering a forged document, involving an amount of R100 000 or more, must report such knowledge or suspicion or cause such knowledge or suspicion to be reported to any police official.”

The provisions of Section 34 outline the responsibilities of those in positions of authority to report any actual or suspected corrupt activities, which include theft, fraud, extortion, forgery, or uttering a forged document and which activities involve an amount of R100 000 or more.

Individuals holding a position of Authority

Section 34(4) of PRECCA stipulates that the following persons hold a position of authority:

• The Director-General or head, or equivalent officer, of a national or provincial department;
• In the case of a municipality, the municipal manager;
• Any public office in the Senior Management Service of a public body;
• Any head, rector or principal of a tertiary institution;
• The manager, secretary or a director of a company, which includes a member of a close corporation;
• The executive manager of any bank or financial institution;
• Any partner in a partnership;
• A person who has been appointed as chief executive officer or an equivalent officer of any agency, authority, board, commission, committee, corporation, council, department, entity, financial institution, foundation, fund, institute, service, or any other institution or organisation, whether established by legislation, contract or any other means;
• Any other person who is responsible for the overall management and control of the business of an employer; or
• Any person who has been appointed in an acting or temporary capacity for the aforementioned positions.

Where to report

The South African Police Service Amendment Act, 10 of 2012, requires that reporting in terms of Section 34(1) of PRECCA should be made to a police official in the Directorate for Priority Crime Investigation (“DPCI”) also known as the HAWKS.

Consequences of Non-Compliance

Any individual who fails to comply with Section 34(1) is guilty of an offence as per Section 34(2). Section 26(1)(b) of PRECCA stipulates that any person who is convicted of an offence in terms of Section 34(2) is liable (i) in the case of a sentence to be imposed by a High Court or a regional court, to a fine or to imprisonment for a period not exceeding five years or (ii) in the case of a sentence to be imposed by a magistrates’ court, to a fine or to imprisonment for a period not exceeding three years.

Conclusion

Section 34(4) of PRECCA plays a crucial role in South Africa’s anti-corruption framework. By imposing a duty to report on individuals in positions of authority, PRECCA aims to create a transparent and accountable environment and to encourage the combating of various corrupt activities. Compliance with this duty is essential not only to avoid legal consequences but also to contribute to the broader fight against corruption in South Africa.

Published 22 July 2024