The Special Investigating Unit's proposed amendments to the Prevention of Corruption Bill
It is proposed that the following new chapter 3 to the Prevention of Corruption Bill be inserted and that the existing Chapter 3 should be amended to read 'Chapter4";
Civil liability flowing from corrupt and unlawful acts and omissions
(23) Any person who corruptly and unlawfully performs an act or corruptly and unlawfully omits to perform an act, the performance or omission of which causes or contributes to:
(a) loss or damages suffered by any other person, business, principal, public body, foreign state or public international organisation; or
(b) enrichment of any person at the expense of any other person, business, principal, public body, foreign state or public international organisation,
shall be liable to the person, business, principal public body, foreign state or public international organisation concerned in an amount equal to the value of any such loss, damages or enrichment irrespective of any fault on me part of the person who performs such act or omits to perform such act.
Civil liability flowing from corruptly accepting gratification by an agent
(24) Any agent who corruptly accepts any gratification in relation to his, her or its principal's affairs shall be liable to his, her or its principal in an amount equal to the value of such gratification, irrespective of any fault the part of such agent.
Civil liability flowing from corrupt enrichment
(25) Any person who is corruptly enriched at the expense of any other person, business, principal, public body, foreign state or public international organisation, shall be liable to the person, business, principal, public body, foreign state or public international organisation concerned in an amount equal to the value of such enrichment irrespective of any fault on the part of the person who is so enriched
Validity of contracts
(26) Any party to a contract whose consent to any of the terms thereof has been undermined by an act corruptly performed or omitted shall have the right to apply to a court of competent jurisdiction for an order declaring the contract to be void, notwithstanding such parties right to claim for losses, damages or impoverishment suffered.
(27) Nothing in this act may be construed so as to limit the institution of civil proceedings under this chapter or under any other law.
(28) If it is proved, or presumed in terms of the provisions of this Act, in any civil proceedings instituted in respect of liability flowing from the provisions of this chapter; that any person corruptly and unlawfully performed an act or corruptly and unlawfully omitted to perform an act and that any person. business, principal, public body, foreign state or public international organisation expended any money or disposed of any property as a result of such act or omission it shall be presumed. unless the contrary is proved, that the person business, principal, public body, foreign state or public international organisation concerned suffered a loss or damages equal to the amount of money so expended or the value of the property so disposed of.
(29) If it is proved in any civil proceedings instituted in respect of liability flowing from the provisions of this chapter that the respondent or defendant concerned performed an act corruptly and unlawfully or omitted to perform an act corruptly and unlawfully which caused or contributed to any loss or damages suffered by any person, business, principal. public body, foreign state or public international organisation it shall be presumed, unless the contrary is proved that any other similar act performed or omitted by such respondent or defendant which caused such person, business, principal, public body, foreign state or public international organisation, as the case may be, to expend any money or dispose of any property, is an act corruptly and unlawfully performed or omitted.
Explanatory notes on the proposed new Chapter 3:
1. Ad section 23 thereof:
A cause of action based on corruption in the wide sense envisaged in the definition of the word "corruptly" in section 1 is created. No fault liability is envisaged. It is submitted that the scope of the liability is sufficiently narrowed down by the element of unlawfulness and the element created through the definition of the word 'corruptly" in section
1. To require proof of fault in the form of either wilfulness or negligence would tip the scale of justice in favour of the perpetrator of the corrupt act as against the victim of the corrupt act who has suffered a loss, damages or impoverishment as a result thereof.
It is believed that the possibility of a corrupt act or omission occurring innocently is negligible and should for the purposes of creating this liability, be discarded.
2. Ad section 24 thereof:
The liability created in this section is not connected to any motive for the corrupt acceptance of the gratification. This approach conforms to the international approach to the subject which favours strict liability as opposed to liability based on fault.
3. Ad section 25 thereof:
Here, too, strict liability is envisaged. This concept is not foreign to the law on enrichment. Even at common law, liability based on enrichment, is not based on fault, but on equity.
Our common law does not recognise a general enrichment claim. This section does create general liability where the enrichment is corrupt.
4. Ad section 27 thereof:
This section is necessary to make it clear that a person may beheld civilly liable irrespective thereof that he is also held criminally liable and, furthermore, that the Act does not substitute civil liability at common law.
5. Ad section 28 thereof:
The Plaintiff is often unable to quantify the damages or loss suffered as a result of corrupt conduct whereas such knowledge is often within the peculiar knowledge of the perpetrator. In such cases the plaintiff requires the assistance of a statutory presumption to prove the claim.
6. Ad section 29 thereof:
This presumption makes provision for a situation where there is a course of corrupt conduct. There should be nothing inequitable in shifting the onus to the perpetrator of a corruption act or omission to disprove corruption in other similar transactions.
If it is proved in terms of this section that the victim of corruption expended money or disposed of property as a result of a similar act or omission, the presumption in section 28 would kick in, i.e. that a loss or damages were suffered equal to the amount so expended or the property so disposed of.
06 August 2002