It’s about Governance, Security and Sovereignty. Yours, Mine and Countries’. Countries affirm their safety and governance commitments to secure peace and accountability within their borders by recognising the long arm of the law of a foreign court which strives to bring about a sense of global accountability. Sovereignty conferred by legislative jurisdiction and at times, international treaties enable cross border trials.
Now the Prevention and Combatting of Corrupt Activities Act No. 12 of 2003 (PACCA) aims to bring greater governance and accountability to Africa in that juristic entities can be held liable in South Africa for corrupt activities outside South Africa’s borders.
There is a strong movement to increase transparency within and hold accountable local and global engagements and transactions. PACCA has been legislated to enable more accountability regardless of geographical borders. Corrupt activities that fall within the ambit of PACCA – are subject to extraterritorial jurisdiction and may be criminalised. PACCA applies to:
– South African citizens;
– Any person domiciled/resident in South Africa;
– Companies in South Africa (and its branch offices outside South Africa);
– Persons arrested in South Africa or its territorial waters or on board a South African registered ship or aircraft at the time of the offence.
To clarify this further – South African based companies and their branch offices in Africa ( and anywhere outside South Africa’s borders) engaging in illegal activities and bribery to secure and facilitate transactions and business will be held accountable in South Africa for such transgressions.
PACCA also applies to Non -South Africans if they are found in South Africa. In simple language this means: if an action is deemed to be criminal under PACCA and it occurs outside South Africa –a South African Court will have jurisdiction even if the act does not constitute an offence in the foreign country.
An Evidentiary Burden
The challenges of enforcing PACCA, while not insurmountable, are evidentiary in nature – in that evidence of collusion, conspiracy and intent need to be proved. In addition, witness and / or victim evidence may need to be led as well as evidence of harm and/ damage. Then there is also the critical issue of protection of whistle-blowers. Protection for truth should (but does not always) necessarily correlate.
Corporate and public entities as well as various states may display an unhealthy aberration of victimising the whistle-blower and the truth bearer. These are but some of the challenges in addition to diplomatic trusses and political power play.
Cracking down on corruption
PACCA takes the South African anti-corruption legislation to a whole new level – and South Africa will be unlikely to be seen as a haven for juristic entities or persons that have engaged in corrupt activity.
The rationale behind PACCA – is to protect a country from intra and extra- territorial (not yet sure about the extra -terrestrial variety just yet!) corruption and aims to be more conducive to transparent and accountable governance as well as global security.
This article was published in ASIAN-MENA COUNSEL, magazine for the In-House Community (www.inhousecommunity.com)