SA lagging in ABC best practice, but shoots of activity

17th July 2020

By: Tasneem Bulbulia

Senior Contributing Editor Online

     

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South Africa lags behind other jurisdictions like the UK and US in terms of anti-bribery and corruption (ABC) compliance programmes, international law firm Herbert Smith Freehills Johannesburg director Cameron Dunstan-Smith said during the company’s Corporate Crime and Investigations Conference webinar on July 16.

He indicated that there was a limit to the regulatory framework required in terms of ABC programmes in the country.

He noted that corporates were not entirely uninvolved and regularly implemented ABC programmes, but said the attention given to these programmes varied widely.

Owing to the country’s regulatory framework being disjointed in this regard, some sectors, like the financial services sector, are better regulated than others.

In terms of the country’s ABC requirements, the two sources are mainly found in social and ethics committees; as well as the limited guidance from South African regulators.

Therefore, in term of best practice, Dunstan-Smith advised that South African companies adhere to what was expected in the region that was the most highly regulated of those it operates in.

In terms of South Africa's ABC investigation and prosecution development, he said there had been less prosecution in the country than expected, but there has been some activity.

He noted that the country was emerging from the well-known State capture years, which saw an entire judicial commission of inquiry being set up to deal with this specific issue.

With the election of President Cyril Ramaphosa, Dunstan-Smith posited, there had been an apparent change in government ethics to root out corruption; and the country was seeing more activity from investigations and hopefully there would be more action from a prosecution point of view.

Moreover, he indicated that this was not limited to the new Presidency, but that there was also activity from the corruption fatigued public, the media and public groups that were playing a role in exposing corruption to the extent that it could no longer be ignored.

He said that from both an individual and institutional point of view, the country was seeing signs of change, with recent high-profile arrests for fraud and corruption.

One of the obstacles faced in this regard, however, was capacity, he said, with a huge volume of information on corrupt dealings within government and the public sector, and very little in the way of prosecution; with an expectant public.

He highlighted that a key issue was that the National Prosecuting Authority (NPA) was under-resourced, and with a dearth of prosecution cases, there was a lack of jurisprudence options available to prosecutors other than traditional courts and trials.

One solution that could work was deferred prosecution agreements (DPA), he suggested, adding, however, that this was a “chicken and egg” situation.

While it could offer an easy, much-needed win for prosecutors, and would avoid lengthy legal processes, it would be a considerable challenge for the NPA to develop a DPA or similar programme, owing to limited guidance for such cases in the country. 

Edited by Chanel de Bruyn
Creamer Media Senior Deputy Editor Online

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