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Implications of the Corrupt Activities Act/Executive Ethics Act
7 December 2006
FORENSIC
ADVISORY
Herman de BeerDirector, Forensic
Johannesburg, South Africa7 December 2006
Herman de BeerDirector, Forensic
Johannesburg, South Africa7 December 2006
1© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
The Legal Framework
� The Prevention and Combating of Corrupt Activities Act, 12 of 2004 (“Corrupt Activities Act”)
− Enacted: 27 April 2004
� The Executive Member’s Ethics Act, 82 of 1998 (“Executive Ethics Act”)
− Enacted: 28 October 1998
� Executive Ethics Code:
− Became effective: 28 July 2000
2© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
The Question
� How effective are these in combating corrupt and unethical
conduct?
and more specific
� Are they effective in assisting the prosecution of offenders in
the corruption market?
3© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
My Approach
� Practical review of the corruption market
� Determine and review the:
− “Big six classical excuses (defenses) for corrupt/unethical
conduct”
� Do these legislative measures effectively address these
excuses?
4© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
The Big Six
1. “It was a loan”
2. “I/He could not influence the process”
3. “There is no prejudice – the best person got the job”
4. “…but everybody is doing it”
5. “He did not intend to corrupt me”
6. “I am not benefiting”
Big crooks use the double-barrel
5© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Corruption Defense 1
“It was a loan”
6© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
“It was a loan”
Shaik’s plea:
“…Zuma confided in me…had serious financial problems…was however insistent that he will only accept my assistance on the understanding that whatever funds I may spend on his behalf, will be repaid to me…”
7© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
“It was a loan”
Shaik’s evidence
“…all of the payments have been accurately recorded against the loan account between the Deputy President and myself…”
8© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Corruption Defense 2
“I/He could not influence the process”
9© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
“I/He could not influence the process”
Shaik’s plea:
“On the 18th November 1998 when the preferred bidders were announced, Zuma was an MEC in the Kwa-Zulu Natal Legislature and had no power or duty with regards to the arms acquisition process…”
10© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
“I/He could not influence the process”
Shaik’s evidence:
“Mr Zuma could not influence a defense preferred bidder, as he did not.”
11© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Corruption Defense 3
“There is no prejudice – the best person got the job”
12© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
“There is no prejudice – the best person got the job”
� I recused myself – although I am the HOD/Senior Manager
� The process was checked out by KPMG – independent party
� Nobody lost money – the winning contractor was the best and he is sharing his profits with me
13© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Corruption Defense 4
“…but everybody is doing it!”
14© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
“…but everybody is doing it!”
� It is excepted and expected practice:
− To eat out
− To socialise
− To go on a hunting trip
− To go on overseas visits
� “So called business courtesies”
� Routine governmental activity – USA – Foreign Corrupt Practices Act
15© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Corruption Defense 5
“I did not know he wanted to corrupt me”
16© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
“I did not know he wanted to corrupt me”
� The money was intended for my political party
� I never discussed it with him in detail – it just arrived
17© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Corruption Defense 6
“I am not benefiting”
18© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
“I am not benefiting”
� My wife has her own life, company/business – ask her
� I have no control over my extended family
� I am a “sleeping partner”
19© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
The Corrupt Activities Act
� Section 3: General Offence of Corruption
� Section 25: Defenses
� Section 24: Presumptions
� Section 10: Unauthorised gratification
� Section 17: Public officer – private interest in contract/investment
� Section 34: Reporting of suspicion of corruption
20© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Section 3: General offence of corruption
� Any person who:
− Accepts or offers to accept or
− Gives or offers to give
� Any gratification for himself or another
� To act in a manner
− That amounts to illegal, dishonest or biased … conduct
− That amounts to abuse of position
− That amounts to a breach of trust
− That amounts to violation of law/rules
− That achieves an unjustified result
− That achieves improper inducement
21© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Section 3: General offence of corruption
Commentary:
� Gratification definition wide: include loan or any benefit
� Once you agree – committed the crime
� Biased conduct – enough
� Violations of rules sufficient – not necessarily unlawful conduct
� To act in a manner does not require actual action – all intention – proof by inference
22© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Section 24: Presumptions
� If the state can show that it took reasonable steps to link the payment to any unlawful excuse and it can not
� Then – court can presume, in absence of evidence to the contrary, it was done for corrupt reason
Commentary:� Assist prosecutions
23© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Section 25: Defenses
If charged under this act is it not a defense to say:� I did not have the power, authority or opportunity to act
� I did not intend to act
� I failed to act
Commentary� Will blast the majority of the big six
24© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Section 10: Unauthorised gratification
� Any person who is party to employment relationship
� And who accepts or agree to accept
� Any unauthorised gratification for his own /others benefit
� In respect of that party (receiver) doing any act
� In relation to that person’s powers or duties
25© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Section 10: Unauthorised gratification
Commentary:� You don’t have to do anything wrong
� It is the accepting with an intention that is punished
� Unauthorised – must be contained in the organisation/department rules
� Examples:
− “not allowed to accept any gift”
− “must declare it”
26© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Section 17: Private Interest
� Any public officer who acquires or holds a private interest in any:
− Contract
− Investment
� That emanated from or is connected with the public body in which he is employed is guilty of crime
� Condition:
− The conditions of employment must prohibit the acquiring or holding
27© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Section 17: Private Interest
Commentary:� Definition of “Private Interest” – not only shareholding – wider context
� Should be included in employment conditions
� Cancels out many defenses
28© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Section 34: Reporting of suspicion of corruption
� Any person who holds a position of authority
� And who knows or ought to have known or suspect that another committed
− Corruption (any crime in CPA)
− Theft/Fraud/Extortion
− Involving more than R100k
� Must report to police official
29© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Section 34: Reporting of suspicion of corruption
Commentary:� Knowledge and suspicion – low threshold
� Personal obligation
� Will make people talk
� Assist with prosecution
30© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Executive Ethics Act
� Section 2: Code of Ethics
� Section 4: Complaints
31© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Section 2/4: Code of Ethics/Complaints
� President issued – Ethics Code – 2000
� Applicable to:
− Cabinet to MEC’s
� Public Protector must investigate breaches
� President refer findings to National Assembly or Provincial Assemblies
32© 2006 KPMG Services (Proprietary) Limited, a South African company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. FSP no. 8484. All rights reserved.
Section 2: Code of Ethics
Require:� Act in good faith
� No other paid work
� Avoid conflict of interest
� Not compromise the credibility of office
� Declare financial interests
� Detail – in Code of Ethics
� Failure/False statements – will contribute to Fraud
Presenter’s contact details
Herman de Beer
KPMG Services (Pty) Ltd (South Africa)
+27 011 647-7110
www.kpmg.co.za