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Legislative Restrictions
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Criminal
Code/Anti-Corruption
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What kinds of violations are listed for public
officials by the criminal code, illicit enrichment,
or other anti-corruption legislation? What
is the range of penalties if convicted of
these violations? |
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Extortion Penalties (215) |
Note:
Q 215 - 220 Criminal Liability: Penalties
are discretionary, inclusive of imprisonment
and fines
See Corruption Act, No 94, 1992 (Annexure
'A' of OPP interview) |
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Active
Corruption (offering) Penalties (216) |
See
Notes |
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Passive
Corruption (accepting) (217) Penalties |
See
Notes |
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Direct
Corruption (immediately, without intermediary)
(218) Penalties |
See
Notes |
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Indirect
Corruption (using intermediary) (219) Penalties |
See
Notes |
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Attempted
Corruption (intended) (220) Penalties |
See
Notes |
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Bias
in official decision-making (221) Penalties |
Note:
Q 220-223 Civil and disciplinary liability.
See Public Service Act, 1994. Acts of Misconduct
are set out in Section 20 (Annexure 'B' of
OPP interview). Note particularly section
20 (b), (n), (o), (r) and (t).
Also, Public Service Laws Amendment Act, 1997;
Public Service Regulations, 1999. See Chapter
2 in Govt Gazette Vol. 409 No. 20117, Notice
No. 847 (Annexure 'C' of OPP interview)
Remuneration of Public Office Bearers Act,
1998 (PSAM interview)
Disciplinary Code (and Procedures), Resolution
No. 1 of 1999 of the Public Sector Co-ordinating
Bargaining Council (Annexure 'D'). Annexure
A to the Agreed Disciplinary Code contains
the 'Acts of Misconduct', and the range of
possible sanctions is set out in paragraph
7.4 of the Code.
Note:
This is a residual code in that it applies
only where no other code with higher standards
exists. The Code constitutes a set of guidelines
and may be departed from 'in appropriate
circumstances'.
Note
that there are no prescribed minimum sentences
as may exist in other jurisdictions. While
a range of possible criminal and administrative
penalties are possible, (and may be found
in the attached documents) all the facts,
and aggravating and mitigating factors should
be taken into account when deciding on penalties.
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Abuse
of public office or public trust (222) Penalties |
see
Private Members Bill |
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Abuse
of privileged state information by public
officials (223) Penalties |
See
Notes |
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Other
(224) Penalties |
Fraud |
| How
many public officials have been indicted
under the criminal code, illicit enrichment,
or anti-corruption statutes within the past
10 years? |
| Criminal
or penal code (226a) |
Not
Known |
| Illicit
enrichment statutes (226b) |
Not
Known |
| Anti-corruption
statutes (226c) |
Note
re: a-c) HSIU - 'not known' but suggests
approaching the prosecutorial authorities.
IDSEO - 'don't have figures' but suggests
too that inspectorates of each department,
for example Inspectors of Justice Department
(Chris Barnard, Andre Law) and Inspectors
of Public Works Department (Jan Horn) may
have figures re internal cases of corruption
which are referred. Also find out about
the Dept of Justice circular in Nov 99 which
refers to sentences and crime types of Justice
officials. NDPP - 'statistics unavailable'
for a-c). OPP - 'don't know' but suggests
that the personnel department of each government
agency may have figures on misocnduct and
corruption-related charges. PSC - notes
'many public officials - statistics not
available'. PSAM - 'have never heard of
a conviction in terms of the Corruption
Act of 1992.' For a-c) the SAPS ACU records
778 police officials |
| How
many public officials have been convicted
under the criminal code, illicit enrichment,
or anti-corruption statutes within the
past 10 years? |
| Criminal
or penal code (227a) |
- |
| Illicit
enrichment statutes (227b) |
- |
| Anti-corruption
statutes (227c) |
Note:
For a-c) HSIU - 'not known' but suggests
approaching the prosecutorial authorities.
IDSEO -'not know'. NDPP - 'statistics
unavailable'. OPP - 'don't know', as
226, PSC - 'statistics not available'.
For a-c) the SAPS ACU records 153 police
officials |
| Please
briefly describe 3 most prevalent
types of cases and state sources.
Also please highlight any concentrations
of indictments or convictions, based
on geographic regions or by public
servants’ responsibilities
or functions. |
| Case
1 (228a) |
PSAM
who monitor newspaper records note
that it would appear from these
that corruption in the civil service
is highly noticeable in the Eastern
Cape and Mpumalanga provinces. However,
this could be due to the fact that
these provinces have to deal with
the integration of various homelands
into the provinces. According to
PSAM the most reported type of corruption
is theft and fraud, followed by
abuse of public power position.
HSIU
(civil action) - Collusion between
private individuals and state
officials resulting in approval
and actual payment in instances
where goods were not delivered
or services not rendered.
IDSEO
- no answer
NDPP
- Government pension cheques,
Eastern Cape (HSIU & NDPP)
OPP
- As far as the office of the
Public Protector is concerned,
for the period from 1/10/95 (when
the office was established) to
14/12/1999, please find attached
as Annexures E1, E2 and E3 printouts
of lists of complaints relating
to relevant offences. Please note
that these lists indicate the
subject matter of the complaint,
and not necessarily that a positive
finding was made confirming the
allegations. Each computer and
hard copy file will have to be
accessed in order to ascertain
this detail. Below, and for the
same time period, please find
the same matters arranged by geographical
origin:
Dishonesty
W/Cape
- 1
E/Cape - 2
Free State - 2
Gauteng - 22
KwaZulu/Natal - 10
Mpumalanga - 1
N/Cape - 0
N/West - 1
N/Province - 7
PSC
- Misuse of government property
SAPS
ACU - SAPS Several operations
are highlighted including:
Operation Pakistan (theft of luxury
motor vehicles, fraud, drug trafficking
as well as illicit diamonds by
SAPS police officers)
Operation Jacob (unlawful smuggling
of prohibited substances)
Operation Clean Deal (organised
crime synidicate dealing in stolen
vehicles)
Operation Cruiser (corupt officers
in specialised units)
Operation Dust (organised corruption
within the police)
(See Overview Document attached
P11 for more information)
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| Case
2 (228b) |
HSIU
(civil) - Non-compliance with tender
and other procurement procedures,
either through negligence or deliberate
omission, as well as manipulation
of such procedures.
IDSEO
- no answer
NDPP
- Corruption in government sponsored
building projects - Gauteng. (HSIU
and NDPP)
OPP
- Enrichment
W/Cape
- 9
E/Cape - 5
Free State - 5
Gauteng - 40
KwaZulu/Natal - 9
Mpumalanga - 8
N/Cape - 2
N/West - 4
N/Province - 6
PSC
- Cheque fraud
SAPS
ACU - See 228 a)
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| Case
3 (228c) |
HSIU
- Failure to adhere to principles
of sound administration leading
to loss for state institutions.
IDSEO
- no answer
NDPP
- Corruption in government sponsored
consultancy work - Mpumalanga
OPP
- Criminal Matter: Corruption
W/Cape
- 1
E/Cape - 2
Free State - 1
Gauteng - 8
KwaZulu/Natal - 2
Mpumalanga - 1
N/Cape - 0
N/West - 1
N/Province - 6
PSC
- Maladministration
SAPS
ACU - see 228 a)
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Other
Legislation
| Are
there prohibitions or restrictions
imposed on public officials e.g.
public servants and/or elected
officials by other legislation,
e.g. legislation pertaining to
senior officials, etc. |
HSIU
- 'not known'
IDSEO - 'Gambling Act' also '
Public Service Act creates offence
of 'misconduct' which is not criminal.'
NDPP - 'Public Service Regulations
and Rules of Parliament as well
as Corruption Act'
OPP - Executive Members Ethics
Act, No 82 of 1998 (Annexure 'F').
Please note that the Code of Ethics
envisaged by this Act does not
yet exist and has not yet been
promulgated as regulations. The
Act, therefore, has no legal effect
apart from as a statement of intent.
- Code of Conduct for Members
of Parliament (Annexures 'G1'
and 'G2')
- Code of Conduct for [Local Government]
Councillors in terms of Schedule
7 of the Local Government Transition
Act, 1993 (Annexure 'H').
PSC - Code of Conduct for Public
Servants. Public servants guilty
of misconduct in terms of Section
20 (f) of the Public Service Act,
1994.
SAPS ACU - SAPS Code of Conduct |
| Under
this legislation, how many public
officials have been... |
| indicted
within the past 10 years (230a) |
- |
| convicted
within the past 10 years (230b) |
Note:
a - b) Same as Q 226 and Q 227
- 'don't know, data unavailable |
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