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INTEGRITY COMMISSION BILL, 2021

Integrity Commission Bill, 2021  –  proposed by Accountability Now

To be read with:  Constitution Eighteenth Amendment Bill, 2021  –  proposed by Accountability Now

PREAMBLE. 4

CHAPTER 1:          INTERPRETATION. 4

1      DEFINITIONS. 4

CHAPTER 2:          MANDATE, ESTABLISHMENT AND COMPOSITION. 5

2      MANDATE OF THE COMMISSION. 5

3      COMPOSITION. 6

4      APPOINTMENT AND REMOVAL OF MEMBERS. 6

5      FUNCTIONS OF THE NATIONAL ASSEMBLY COMMITTEE. 7

6      OFFICE OF THE NATIONAL COMMISSIONER. 8

7      PROVINCIAL OFFICES OF THE COMMISSION. 8

CHAPTER 3:          COMMISSION STAFF. 8

8      STAFF MEMBERS OF THE COMMISSION. 8

9      ENGAGEMENT OF INDIVIDUALS TO PERFORM SERVICES IN SPECIFIC CASES. 10

10        CONDITIONS OF SERVICE. 10

11        SECURITY SCREENING AND INTEGRITY MEASURES. 11

12        IMPARTIALITY AND OATH OR AFFIRMATION. 12

CHAPTER 4:          COMMISSION FINANCES. 13

13        COMMISSION EXPENDITURE. 13

14        FINANCIAL ACCOUNTABILITY. 13

CHAPTER 5:          NATIONAL COMMISSIONER. 14

15        POWERS, DUTIES AND FUNCTIONS OF NATIONAL COMMISSIONER. 14

16        POLICY AND POLICY DIRECTIVES. 15

17        COOPERATION FRAMEWORK. 15

CHAPTER 6:          PROVINCIAL COMMISSIONERS. 16

18        MANAGEMENT OF PROVINCIAL OFFICES. 16

19        ESTABLISHMENT OF INVESTIGATION AND LEGAL SERVICE UNITS. 17

CHAPTER 7:          INVESTIGATION UNITS. 17

20        FUNCTIONS OF INVESTIGATION UNITS. 17

21        USE OF SEARCH WARRANTS, ENTERING OF PREMISES AND SEIZURE BY INVESTIGATION UNITS  18

22        INVESTIGATIONS OUTSIDE THE REPUBLIC. 19

CHAPTER 8           LEGAL SERVICES UNITS. 19

23        DUTIES OF THE NATIONAL COMMISSIONER. 19

24        FUNCTIONS OF LEGAL SERVICES UNITS. 20

25        CERTIFICATES TO SHOW VALUE OF CRIMINAL PROCEEDS. 20

26        POWERS AND DUTY TO INSTITUTE CIVIL PROCEEDINGS. 20

CHAPTER 9:          ACCOUNTABILITY AND LIABILITY. 22

27        ACCOUNTABILITY TO PARLIAMENT. 22

28        LIABILITY OF THE COMMISSION. 22

29        STAFF MEMBERS OF THE COMMISSION ANSWERING QUESTIONS. 23

CHAPTER 10:        COMMISSION SECURITY. 23

30        UNAUTHORISED ACCESS TO OR MODIFICATION OF COMPUTER MATERIAL. 23

31        PROTECTION OF WHISTLEBLOWERS. 24

32        OFFENCES AND PENALTIES. 24

33        APPLICATION OF ACT. 26

34        SHORT TITLE. 26

ACT

To provide for matters regulating the Integrity Commission as contemplated in the Constitution of the Republic of South Africa, 1996; and to provide for matters connected therewith.

PREAMBLE

WHEREAS sections 181 and 192A of the Constitution of the Republic of South Africa,1996 (Act 108 of 1996), provide for the establishment of the Integrity Commission;

AND WHEREAS the Integrity Commission has the power, as regulated by national legislation, to prevent, combat and investigate serious corruption, and to institute and conduct legal proceedings in respect of serious corruption, and to carry out any necessary functions incidental thereto with the aim of eventually eradicating serious corruption, in order to strengthen and support constitutional democracy in the Republic;

AND WHEREAS sections 193 and 194 of the Constitution provide for a mechanism for the appointment and removal of the National Commissioner and Provincial Commissioners of the Integrity Commission;

AND WHEREAS the Constitution envisages further legislation to provide for certain ancillary matters pertaining to the Integrity Commission;

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa,

as follows:-

CHAPTER 1:    INTERPRETATION

1           DEFINITIONS

In this Act, unless the context otherwise dictates, the following definitions will apply:

  • “close associate” shall mean an individual who is closely connected to a person suspected of serious corruption, either personally or professionally;
  • “Commission” shall mean the Integrity Commission;
  • “Constitution” shall mean the Constitution of the Republic, 1996 (Act 108 of 1996), as amended from time to time;
  • “corrupt activities” shall mean those activities described in chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2003 (Act 12 of 2004), as amended from time to time, read together with the interpretation section of that Act;
  • “family member” shall mean a person related by marriage (including a person in a relationship akin to marriage), or related by consanguinity to the third degree (where consanguinity includes a stepchild or step parent), or any person who is similarly related by marriage or in a relationship akin to marriage to such a person so related by consanguinity;
  • “Government” shall mean the Government of the Republic;
  • “Information” shall mean any information as generally understood, and shall include, without limitation, books, documents, records, reports, notes, working papers, presentations, spreadsheets, materials, emails, data (whether stored on hard drives or in the cloud or anywhere else), techniques, models, templates, methodologies, technologies, programmes, processes and facts, whether in hard copy or electronic format or verbal;
  • “Investigation Unit” shall mean a unit within the Commission which is responsible for the investigation of corrupt activities and which shall carry out any necessary functions incidental thereto;
  • “legal officer” shall mean an attorney or advocate appointed in a Legal Services Unit;
  • “Legal Services Unit” shall mean a unit within the Commission which is responsible for the instituting and conducting of legal proceedings and which shall carry out any necessary functions incidental thereto;
  • “Member” or “Members” shall mean the National Commissioner and the Provincial Commissioners of the Commission collectively;
  • “National Assembly” shall mean the National Assembly of the Parliament of the Republic;
  • National Commissioner” shall mean the National Commissioner of the Commission;
  • “Office of the National Commissioner” shall mean the Office of the National Commissioner established in terms of section 6;
  • “Office of the Provincial Commissioner” shall mean the Offices of the Provincial Commissioners established in terms of section 7 in each province;
  • “person” shall mean a natural or juristic person;
  • “police service” shall mean the South African Police Service;
  • “Provincial Commissioner” or “Provincial Commissioners” shall mean the commissioners appointed in each of the provinces as deputies to the National Commissioner;
  • “Republic” shall mean the Republic of South Africa; and
  • “serious corruption” shall mean conduct as described in section 192A(2) of the Constitution.

CHAPTER 2:    MANDATE, ESTABLISHMENT AND COMPOSITION

2           MANDATE OF THE COMMISSION

  • The Commission shall, on behalf of the Republic:
  • receive reports of alleged or suspected corrupt activities, or attempted corrupt activities, meeting the definition of serious corruption, from any person and by any means as the Commission may allow with a view to making the Commission accessible to all persons;
  • in response to receiving a report as referred to in subsection (1)(a), or on its own initiative:
  • investigate alleged or suspected corrupt activities that may meet the definition of serious corruption as set out in section 192A(2);
  • investigate any alleged or suspected attempts to conduct corrupt activities that may meet the definition of serious corruption as set out in section 192A(2); and
  • advise, where necessary, any complainant regarding appropriate remedies;
  • upon conclusion of an investigation, institute and conduct legal proceedings on behalf of the State where such legal proceedings support the mandate of the Commission in respect of serious corruption; and
  • carry out any necessary functions incidental to investigating, instituting and conducting legal proceedings in respect of such activities.
  • In furtherance of its mandate, the Commission shall:
  • provide adequate and relevant training to all staff members of the Commission;
  • raise public awareness about serious corruption and the impact thereof;
  • provide guidance to the general public and the public service on the prevention, detection and response to serious corruption; and
  • refer all matters that fall outside of its mandate to the authorities that have the relevant and appropriate jurisdiction.
  • Where any person, law enforcement authority or institution created in Chapter 9 of the Constitution, become aware of the existence of any matter that falls or may fall within the mandate of the Commission, that person or the head of the law enforcement authority or institution created in Chapter 9 of the Constitution shall as soon as is reasonably possible report the matter to the National Commissioner.

3           COMPOSITION

  • The Commission shall consist of:
    • ten Members being:
      • a National Commissioner who shall be the head of the Office of the National Commissioner; and
      • Provincial Commissioners, as deputies to the National Commissioner, who shall be the heads of the Provincial Offices of the Commission established at the seat of a High Court in each province;
    • an Investigation Unit staffed with specialised investigators who are qualified to investigate serious corruption;
    • a Legal Services Unit staffed with specialised legal officers who are qualified to institute and conduct legal proceedings in respect of serious corruption on behalf of the State;
    • any other staff members appointed at or seconded to the Commission, in terms of Section 8(1); and
    • any individual engaged to perform services for the Commission in specific cases, in terms of Section 9.
  • Together, the individuals referred to in subsection (1) shall be referred to as “all staff members of the Commission”.

4           APPOINTMENT AND REMOVAL OF MEMBERS

  • The President shall, whenever it becomes necessary, appoint Members of the Commission in accordance with the provisions of section 193 of the Constitution.
  • The Members of the Commission shall be individuals who are fit and proper to hold such office, and who:
    • meet the requirements with regard to the Commission as set out in Chapter 9 of the Constitution;
    • are citizens of the Republic;
    • hold a degree from a university recognised in the Republic;
    • have knowledge and experience of not less than 15 years in one or more of the following fields:
      • law;
      • law enforcement;
      • forensic countering of corruption; or
      • the combating of financial crime; and

(e)        are individuals of honesty and integrity who have passed the relevant testing prescribed by the National Commissioner.

  • An individual shall qualify to be considered for appointment as the National Commissioner if that individual, in addition to the qualifications set out in subsection (2) is, or has served as, a High Court Judge, including in an acting capacity.
  • An individual shall not qualify to be considered for appointment as a Member if that individual:
    • is or was a member of a governing body, office bearer or employee of a political party;
      • is or was a member of Parliament, the National Assembly or National Council of Provinces;
      • is an unrehabilitated insolvent or has at any time in his or her life been declared insolvent;
      • has been declared by a court to be mentally ill or unfit;
      • has at any time in his or her life been convicted of an offence involving dishonesty; or
      • by virtue of his or her personal or professional history, can reasonably be expected to-
    • diminish the independence of the Commission; or
    • the perception of independence of the Commission; or
    • bring the Commission into disrepute.
  • Whenever the National Commissioner is, for any reason, unable to perform the functions of his or her Office, or while the appointment of an individual as National Commissioner is pending, one of the Provincial Commissioners, appointed by majority vote of all the Provincial Commissioners currently serving, shall perform such functions and shall be supported in those functions by all other Provincial Commissioners currently serving.
  • Whenever any of the Provincial Commissioners are, for any reason, unable to perform the functions of their Office, or while the appointment of an individual as a Provincial Commissioner is pending, the National Commissioner shall appoint one of the other Provincial Commissioners currently serving to fulfil the functions of the Provincial Commissioner that are unable to perform his or her functions, and shall support him or her in the fulfilment of those additional functions.
  • Subsection (4)(a) and (b) shall cease to apply to an individual after two general elections have been held since the individual ceased to hold such office.
  • The remuneration and other terms and conditions of employment of the Members shall from time to time be determined by the National Assembly upon the advice of the committee of the National Assembly: Provided that such remuneration:
    • shall not be less than that of a judge of a High Court; and
      • shall not be reduced, nor shall the terms and conditions of employment be adversely altered, during their term of office.
  • Members may be removed from the Commission in accordance with the provisions of section 194 of the Constitution.

5           FUNCTIONS OF THE NATIONAL ASSEMBLY COMMITTEE

  • The National Assembly shall refer to a committee of the National Assembly the:
    • nomination of individuals in terms of section 193 of the Constitution to be appointed as National Commissioner and as Provincial Commissioners; and
      • consideration in terms of section 194 of the Constitution of the removal from Office of the National Commissioner and the Provincial Commissioners.
  • The National Assembly or, if Parliament is not in session, the committee of the National Assembly may allow a Member to vacate his or her office:
    • on account of continued ill-health; or
    • at his or her request: Provided that such request shall be addressed to the National Assembly or the committee, as the case may be, at least 3 calendar months prior to the date on which he or she wishes to vacate such office, unless the National Assembly or the committee, as appropriate, allows a shorter period in a specific case.
  • If the committee allows a Member to vacate his or her office in terms of subsection (2), the chairperson of the committee shall communicate that fact by message to the National Assembly for its ratification.
  • The National Commissioner may, at any time, approach the committee with regard to any matter pertaining to the Commission.

6           OFFICE OF THE NATIONAL COMMISSIONER

  • The seat of the Office of the National Commissioner shall be determined by the President.
  • The Office of the National Commissioner shall consist of:
    • the National Commissioner who shall be the head of the Office and shall manage and control the Office;
    • the Chief Administrative Officer;
    • members of the Investigation Unit;
    • members of the Legal Services Unit; and
    • other staff members of the Commission, including administrative staff, appointed at the Office of the National Commissioner.

7           PROVINCIAL OFFICES OF THE COMMISSION

  • The Commission shall establish an Office at the seat of a High Court in each province.
  • In provinces with more than one High Court, the seat of the Office in that province shall be determined by the President.
  • Each of the Offices established in terms of this section shall consist of:
    • a Provincial Commissioner, designated by the National Commissioner, who shall-
    • be the head of the relevant Office;
    • manage and control that Office; and
    • exercise the functions delegated to him or her by the National Commissioner,

subject to the management, control and directions of the National Commissioner;

  • members of the Investigation Unit;
    • members of the Legal Services Unit; and
    • other staff members of the Commission, including administrative staff, appointed or assigned to the Commission at that Office.

CHAPTER 3:    COMMISSION STAFF

8           STAFF MEMBERS OF THE COMMISSION

    • a suitably qualified and experienced individual as Chief Administrative Officer, appointed by the National Commissioner for the purpose of assisting in the performance of all financial, administrative and clerical functions pertaining to the Commission;
      • members of the Investigation and Legal Services Units-
        • who shall be appointed by the National Commissioner in consultation with the Provincial Commissioner who is the head of the Office at which those members of the Investigation and Legal Services Units are being appointed, and subject to the laws governing the public service; or
        • who shall be appointed by the National Commissioner at the Office of the National Commissioner in support of his or her powers, duties and functions set out in Chapter 5 and anywhere else in this Act or the Constitution; and
      • such staff, seconded in terms of subsection (7) or appointed by the National Commissioner in terms of Section 9, as may be necessary to enable the Commission to perform its functions.
  • The National Commissioner shall determine a uniform recruitment procedure for the Commission which procedure shall, through an open, transparent and competitive recruitment process, ensure the appointment of staff members of the Commission who are appropriately qualified, possess the capabilities required to support the mandate of the Commission, and have passed such integrity and ethics testing as the National Commissioner may prescribe for all potential candidates.
  • The National Commissioner may from time to time, in consultation with the Provincial Commissioners, and considering the mandate of the Commission, prescribe the appropriate qualifications for the appointment of the members of the Investigation and Legal Services Units.
  • An individual shall qualify to be considered for appointment as an investigator in the Investigation Unit if that individual:
    • is a citizen of the Republic;
    • has specialised knowledge and experience of not less than 10 years in one or more of the following fields:
      • law enforcement;
      • forensic countering of corruption; or
      • the combating of financial crime; and
    • is an individual of honesty and integrity.
  • An individual shall qualify to be considered for appointment as attorney or advocate in the Legal Services Unit if that individual:
    • is a citizen of the Republic;
    • holds a degree in law from a university recognised in the Republic;
    • has the right of appearance to appear in any court within the Republic in terms of the Right of Appearance in Courts Act, 1995 (Act 62 of 1995);
    • is admitted as an advocate or an attorney and has, for a cumulative period of at least 5 years after having been so admitted, practised as an advocate or an attorney, or is qualified to be admitted as an advocate or an attorney and has, for a cumulative period of at least 5 years after having so qualified, lectured in law at a university;
    • has specialised knowledge and experience of not less than 5 years in one or more of the following fields:
      • instituting and conducting prosecution of criminal matters;
      • instituting and conducting legal proceedings relating to recovery of damages or losses;
      • forensic countering of corruption; or
      • the combating of financial crime;
    • is an individual of honesty and integrity; and
    • is a fit and proper individual in good standing with the relevant legal profession’s regulatory body.
  • Staff members of the Commission shall have such powers as the National Commissioner may delegate to them.
  • The Commission may, in the furtherance of its mandate and in the performance of the functions contemplated in Section 2, at the request of the National Commissioner:
    • be assisted by officers in the Public Service seconded to the service of the Commission in terms of any law regulating such secondment;
    • be supported by the Crime Intelligence Division of the police service to gather, correlate, evaluate, co-ordinate and use crime intelligence in the performance of its functions, and the head of the Crime Intelligence Division of the police service shall upon a request of the National Commissioner make available crime intelligence capacity to assist the Commission in specific investigations; and
    • be assisted by personnel from any other Government department or institution, which may include personnel from the South African Reserve Bank, the South African Revenue Service, the Financial Intelligence Centre, the Department of Home Affairs and the Asset Forfeiture Unit.
  • If the National Commissioner so requests, any individual seconded in terms of subsection (7) shall retain the powers, duties and functions endowed by any law governing the powers, duties and functions of that department or institution, and that individual may exercise such powers, duties and functions under the command of the National Commissioner or his or her delegate, but subject to such conditions as may be determined by the head of the seconding Government department or institution.
  • Individuals seconded in terms of this section shall in the performance of their functions act in terms of the laws applicable to the Government department or institution from which they are seconded, subject to such conditions as may be agreed upon by the National Commissioner and the director-general of the Government department or head of the Government institution.

9           ENGAGEMENT OF INDIVIDUALS TO PERFORM SERVICES IN SPECIFIC CASES

  • The National Commissioner may in consultation with the Provincial Commissioners, on behalf of the State, engage, under agreements in writing, individuals having suitable qualifications and experience to perform services in specific investigations or legal proceedings.
  • The terms and conditions of service of an individual engaged by the National Commissioner under subsection (1) shall be as determined from time to time by the Minister of Finance, except where the engagement of an individual contemplated in subsection (1) will not result in financial implications for the State.
  • For purposes of this section, ‘services’ include the conducting of an investigation or legal proceedings under the control and direction of the National Commissioner or Provincial Commissioner, as appropriate.

10        CONDITIONS OF SERVICE

  • The individuals appointed by the National Commissioner in terms of Section 8, and where appropriate in consultation with Provincial Commissioners, shall receive such remuneration, allowances and other employment benefits and shall be appointed on such terms and conditions and for such periods, as the National Commissioner may determine.
  • The National Commissioner shall inform the Minister of Finance of the outcome of decisions taken in exercising his or her powers in terms of Section 8 and 10(1).
  • A document setting out the remuneration, allowances and other conditions of employment determined by the National Commissioner in terms of this section, shall be tabled in the National Assembly within 14 days after such determination: Provided that-
    • if the National Assembly disapproves of any determination such determination shall cease to be of force to the extent to which it is so disapproved; and
    • if a determination ceases to be of force as contemplated in subsection (3)(a):
      • anything done in terms of such determination up to the date on which such determination ceases to be of force shall be deemed to have been done validly; and
      • any right, privilege, obligation or liability acquired, accrued or incurred up to the said date under and by virtue of such determination, shall lapse upon the said date.
  • The Members and all staff members of the Commission shall:
    • serve impartially and independently and exercise, carry out or perform their powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law; and
    • serve in a full-time capacity to the exclusion of any other duty or obligation arising out of any other employment or occupation or the holding of any other office, whether remunerated or not: Provided that an individual contemplated in Section 9 may be exempted from the provisions of this subsection.
  • No staff member of the Commission shall conduct an investigation or institute or conduct legal proceedings, or render assistance with regard to such investigation or legal proceedings in respect of a matter in which they, or any family member or close associate have any pecuniary interest or any other interest which might preclude them from performing their functions in a fair, unbiased and proper manner.
  • If any staff member of the Commission fails to disclose an interest contemplated in subsection (5), while having an interest in the matter being investigated, the National Commissioner may take such steps as he or she deems necessary to ensure a fair, unbiased and proper investigation.
  • Notwithstanding anything to the contrary contained in any law no individual shall disclose to any other individual-
    • the contents of any document in the possession of any staff member of the Commission, or the record of any evidence given to the Commission during an investigation or legal proceeding;
    • the details of an investigation under this Act, including the identity of anyone being investigated, or
    • any Information relating to the activities of the Commission;

except with leave of the National Commissioner.

11        SECURITY SCREENING AND INTEGRITY MEASURES

  • Any individual who is considered for appointment in, or secondment to, or engagement with, the Commission, shall be subject to a security screening investigation in terms of and in accordance with Section 2A of the National Strategic Intelligence Act, 1994 (Act 39 of 1994) as amended.
  • No individual may be appointed or seconded to, or engaged with, the Commission unless:
    • a security clearance has been issued to that individual in terms of Section 2A(6) of the National Strategic Intelligence Act, 1994 (Act 39 of 1994), by any Intelligence Structure referred to in that Act as may from time to time be determined by the Minister for Safety and Security; or
    • a security clearance on the required level and which is still valid, has been issued to the individual in question in terms of Section 2A(6) of the National Strategic Intelligence Act, 1994.
  • Whenever the head of the Intelligence Structure referred to in subsection (2) acting in terms of Section 2A(6) of the National Strategic Intelligence Act, 1994, upon reasonable grounds, degrades, withdraws or refuses a security clearance, of a staff member of the Commission, the National Commissioner may on his or her own initiative or on request of any of the Provincial Commissioners, discharge that staff member.
  • Any staff member of the Commission may from time to time, or at such regular intervals as the National Commissioner may determine, be subjected to a further security screening investigation: Provided that if, upon Information at the disposal of the National Commissioner, he or she reasonably believes that such individual poses a security risk, he or she may require that individual to undergo a further security screening investigation.
  • Staff members of the Commission must, in the prescribed manner and at the prescribed intervals, disclose their prescribed financial and other interests and those of their family members which may in any way impede their ability to serve impartially and independently and perform their functions in good faith and without fear, favour or prejudice.
  • The National Commissioner shall prescribe measures:
    • for integrity testing of any staff member of the Commission, which may include random entrapment, testing for the abuse of alcohol or drugs, or the use of the polygraph or similar instrument to ascertain, confirm or examine in a scientific manner the truthfulness of a statement made by an individual; and
      • to ensure the confidentiality of Information obtained through integrity testing in terms of this section.
  • The necessary samples required for any test referred to in subsection (6), may be taken, but any sample taken from the body of a staff member of the Commission may only be taken by a registered medical practitioner or a registered nurse.
  • The National Commissioner shall prescribe any further measures that may assist him or her to make decisions in respect of the employment, secondment or engagement, or continued employment, secondment or engagement, of any individual, but not limited to psychometric testing and assessment of competencies and skill.

12        IMPARTIALITY AND OATH OR AFFIRMATION

  • Subject to the Constitution and this Act , no organ of state and no member or employee of an organ of state, nor any member of the cabinet, including the President, nor any other person shall-
  • improperly and wilfully interfere with, hinder or obstruct the Commission or any staff member thereof in the exercise, carrying out or performance of its or their powers, duties and functions; or
  • unduly influences, or attempt to unduly influence any staff member of the Commission.
  • All staff members of the Commission, before commencing to exercise, carry out or perform their powers, duties or functions in terms of this Act, take an oath or make an affirmation, which shall be subscribed by them, in the form set out below, namely:

‘I ……………………………………………………….. (full name) do hereby swear/solemnly affirm that I will in my capacity as National Commissioner/Provincial Commissioner/investigator/ legal officer/staff member of the Integrity Commission, uphold and protect the Constitution and the fundamental rights entrenched therein and enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law. (In the case of an oath: So help me God.)’.

  • Such an oath or affirmation shall:
  • in the case of the National Commissioner or Provincial Commissioner, be taken or made before the most senior available judge of the High Court within which area of jurisdiction the Office of the National Commissioner is located; and
  • in the case of an investigator, legal officer or any other staff member, be taken or made before the Provincial Commissioner in whose Office the investigator, legal officer or any other staff member concerned has been appointed, and who shall at the bottom thereof endorse a statement of the fact that it was taken or made before him or her and of the date on which it was so taken or made and append his or her signature thereto.

CHAPTER 4:    COMMISSION FINANCES

13        COMMISSION EXPENDITURE

  • In order to give effect to the mandate of the Commission, the National Commissioner, in consultation with the Provincial Commissioners, shall prepare and provide the Minister of Finance with the necessary estimate of expenditure of the Commission.
  • The expenses incurred in connection with the exercise of the powers, the carrying out of the duties and the performance of the functions of the Commission shall be defrayed out of monies appropriated by Parliament for that purpose. In each fiscal year Parliament shall be obliged to so appropriate not less than 0,3% of the Republic’s national budget in the preceding fiscal year, as determined by the Minister of Finance.
  • The National Commissioner may, with the specific or general approval of the Minister of Finance or any individual authorised by the said Minister to so approve, order that the expenses or a portion of the expenses incurred by any individual in the course of or in connection with an investigation by the Commission, be paid from State funds to that individual.

14        FINANCIAL ACCOUNTABILITY

  • The National Commissioner shall manage and have control over the money received or paid out for or on account of the Commission.
  • The Chief Administrative Officer referred to in Section 8(1)(a)-
    • shall, subject to the Public Finance Management Act, 1999 (Act 1 of 1999):
    • be charged with the responsibility of accounting for money received or paid out for or on account of the office of the Commission;
    • cause the necessary accounting and other related records to be kept; and
    • may exercise such powers and shall perform such duties as the National Commissioner may from time to time confer upon or assign to him or her and shall in respect thereof be accountable to the National Commissioner.
  • The records referred to in subsection (2)(a)(ii) shall be audited by the Auditor-General.

CHAPTER 5:    NATIONAL COMMISSIONER

15        POWERS, DUTIES AND FUNCTIONS OF NATIONAL COMMISSIONER

  • The National Commissioner shall have oversight of all activities of the Commission and shall exercise control over and manage:
    • the duties and functions of the Commission including all investigations and legal proceedings and shall perform any legal act or act in any legal capacity on behalf of the Commission and in the execution of, and the furtherance of, the mandate of the Commission; and
      • all staff members of the Commission in accordance with this Act and any other applicable legislation.
  • The National Commissioner may:
    • have the administrative work connected with the exercise of his or her powers, the performance of his or her functions or the carrying out of his or her duties, carried out by individuals referred to in Section 6(2)(e) of this Act; and
      • at his or her discretion, be supported in his or her functions by investigators and legal officers at the Office of the National Commissioner.
  • The National Commissioner shall, after consultation with the Provincial Commissioners:
    • frame a code of conduct which shall be complied with by all staff members of the Commission: Provided that the code of conduct may from time to time be amended and must be published in the Gazette for general information; and
      • develop and implement ongoing training programmes for all staff members of the Commission to ensure the building of relevant skill and institutional knowledge to effectively investigate, and institute and conduct effective legal proceedings, in respect of serious corruption.
  • The National Commissioner, in consultation with the Provincial Commissioners, shall determine uniform rules and operating procedures for the Commission, which operating procedures shall set out consistent and measurable standards in terms of which the activities of the Commission must be carried out: Provided that-
    • the National Commissioner may create separate rules and standards for the Investigation and Legal Service Units;
      • any decisions or actions in respect of the outcomes of any security screening and integrity measures as set out in Section 11 shall form part of such uniform rules and operating procedures;
      • all uniform rules and operating procedures so created must be published in the Government Gazette; and
      • all uniform rules and operating procedures so created shall be tabled in the National Assembly.
  • In support of the eradication of corruption, including in the public service, the National Commissioner shall:
    • table at Parliament guidance and suggestions in respect of the selection and training of individuals in positions in the public service which may be considered vulnerable to corruption every 5 years;
      • implement public programmes to raise awareness and provide guidance in respect of the prevention, detection and combating of corruption in the public service and among private entities;
      • report to Parliament on specific measures that may be put in place to prevent the misuse of procedures regulating private entities, including subsidies and licenses for commercial activities every 5 years; and
      • shall ensure that all staff members of the Commission render the necessary assistance, free of charge, to enable any person to report corrupt activities which meet or which may meet the definition of serious corruption, to the Commission.
  • The National Commissioner may at any time request Provincial Commissioners to submit reports with regard to specific activities relating to their powers, duties or functions.
  • Where, during the course of the Commission’s engagement with any matter, the National Commissioner becomes aware of, including as a result of a report by any Provincial Commissioner, evidence relating to a matter which falls outside the mandate of the Commission, the National Commissioner shall ensure that such evidence is referred to the authority with the relevant jurisdiction, and as soon as is reasonably possible.
  • Further to the provisions of Section 192A(4) of the Constitution, the National Commissioner shall, in respect of any matter in which the alleged, reported or suspected serious corruption is accompanied by other crimes, make a determination on whether the entire case, including any charges relating to serious corruption, shall be prosecuted by the Commission or the national prosecuting authority. As soon as is reasonably possible once such determination has been made, that matter shall be referred to the relevant authority who shall prosecute the entire case, including any charges relating to serious corruption.

16        POLICY AND POLICY DIRECTIVES

  • The National Commissioner shall, in accordance with Section 192A(5) and any other relevant section of the Constitution, and after consultation with the Provincial Commissioners-
    • determine policies and issue policy directives for the functions and activities of the Commission;
      • determine policies and issue policy directives in respect of investigations and the instituting and conducting of legal proceedings;
      • exercise such powers and perform such functions in respect of the policies as determined in this Act or any other law; and
      • may intervene in any Commission process when policy directives are not complied with.
  • The policies and policy directives shall be observed by all staff members of the Commission.
  • The policies, directives and any amendments to them must be included in the report referred to in Section 27(2): Provided that the first policies issued under this Act shall be tabled in Parliament as soon as possible, but not later than six months after the appointment of the first National Commissioner.

17        COOPERATION FRAMEWORK

  • Further to the provisions of Section 192A(8) of the Constitution and Sections 2(2)(d) and 2(3), and in order to promote cooperation and prevent jurisdictional conflicts between relevant national law enforcement bodies and institutions, and in fulfilment of the Commission’s mandate, the National Commissioner:
  • shall participate in the creation of a national legislative cooperation framework, which process shall be overseen by Parliament, governing the interaction between the Commission, the Public Protector, the police service and the national prosecuting authority and any other body or institution whose lawful duties and functions may be impacted by the mandate of the Commission;
  • maintain contact with such bodies and institutions to promote and ensure consistency in policies and practices; and
  • may consider such recommendations, suggestions and requests concerning the Commission as he or she may receive from any source.
  • The Commission shall be assisted in the achievement of its mandate by Government departments or institutions, which shall take reasonable steps to do so on request of the Commission.
  • Further to Section 192A(6) of the Constitution, the National Commissioner shall require all organs of state, state owned enterprises and municipalities to furnish the Commission with a report by 1 March each year, in a format as determined by the National Commissioner, setting out all measures taken by them in respect of the eradication of serious corruption during the preceding calendar year: Provided that if such report indicate an increase in corruption in respect of the areas of jurisdiction of such reporting body, that reporting body shall also report on the reasons why that is the case and how it is going to combat corruption more effectively in the next calendar year.
  • The National Commissioner shall ensure that the Commission maintain good working relations with the South African Reserve Bank, the South African Revenue Service, the Financial Intelligence Centre, the Department of Home Affairs, the Asset Forfeiture Unit and any other national body or institution which could support and provide assistance to the Commission in the fulfilment of its mandate.
  • Further to the Republic’s obligations in respect of the combating of corruption under international law, the National Commissioner shall promote, facilitate and support international cooperation and technical assistance in the detection, prevention and combating of corruption, including in respect of asset recovery.

CHAPTER 6:    PROVINCIAL COMMISSIONERS

18        MANAGEMENT OF PROVINCIAL OFFICES

  • Provincial Commissioners shall exercise their powers:
  • subject to the provisions of the Constitution and this Act, and the oversight, management, control and directions of the National Commissioner;
  • in respect of the province for which they have been appointed; and
  • in respect of any serious corruption which have not been expressly excluded from their jurisdiction, either generally or in a specific case, by the National Commissioner.
  • Provincial Commissioners may exercise or perform any of the powers, duties and functions of the National Commissioner which they have been authorised by the National Commissioner to exercise or perform.
  • Subject to the provisions of Section 192A and any other relevant section of the Constitution, this Act or any other law, Provincial Commissioners shall, in respect of the province for which they have been appointed:
  • supervise, manage, control and direct the day to day activities of the Office of which they are the head;
  • supervise, manage, control, direct and co-ordinate the work and activities of the Investigation and Legal Services Units in the Offices of which they are the heads and carry out functions incidental thereto;
  • furnish directions and guidance on activities in respect of matters under investigation or which are the subject of legal proceedings;
  • at the request of the National Commissioner, submit reports to and assist the National Commissioner in connection with any matter in relation to this Act; and
  • carry out all duties and perform all functions conferred or imposed on or assigned to them under any law which is in accordance with the provisions of this Act.
  • The Provincial Commissioners shall have the power, on their own initiative or on receipt of a complaint or an allegation or on the ground of Information that has come to their knowledge and which points to conduct such as referred to in Section 2(1)(b) of this Act, instruct investigators of the relevant Investigation Unit to conduct a preliminary investigation for the purpose of determining the merits of the complaint, allegation or Information and the manner in which the matter concerned should be dealt with.
  • The Provincial Commissioners shall provide to the National Commissioner a copy of the directions given or guidelines furnished under subsection (3)(c).
  • The Provincial Commissioners must annually, not later than the first day of March, submit to the National Commissioner a report on the activities of the Offices of which they are the heads, and on all their activities during the previous year.
  • Provincial Commissioners may, at any time, submit a report to the National Commissioner with regard to any matter, if they deem it necessary.
  • Where, during the course of the Commission’s engagement with any matter, Provincial Commissioners become aware of evidence relating to a matter which falls outside the mandate of the Commission, they shall report the matter to the National Commissioner as soon as is reasonably possible.

19        ESTABLISHMENT OF INVESTIGATION AND LEGAL SERVICE UNITS

  • Provincial Commissioners, after consultation with the National Commissioner and further to the uniform rules and operating procedures provided for in Section 15(4), shall establish Investigation and Legal Service Units at the Offices where they are the heads.
  • Subject to the Constitution and with due regard to the fundamental rights of every individual, investigators and legal officers shall exercise such powers and shall perform such duties and functions as are delegated to them by the National Commissioner or the Provincial Commissioners who are the heads of the Offices at which the investigators and legal officers are employed and in compliance with any uniform rules and operating procedures determined by the National Commissioner.
  • Where investigators or legal officers become aware of corrupt activities which may constitute serious corruption, they shall inform the Provincial Commissioners who are the heads of the Offices where the investigators or legal officers are employed, as soon as is reasonably possible.
  • The Members shall insure effective cooperation and support between the members of the Investigations Units and the members of the Legal Services Units in fulfilment of the mandate of the Commission.

CHAPTER 7:    INVESTIGATION UNITS

20        FUNCTIONS OF INVESTIGATION UNITS

  • Investigation Units shall have a duty to investigate corrupt activities meeting the definition of serious corruption and shall function under the management, control and directions of the relevant Provincial Commissioner.
  • Investigators may, after notifying the Provincial Commissioner, at any time prior to or during an investigation, request any individuals-
  • at any level of government, subject to any law governing the terms and conditions of employment of such individuals;
  • performing a public function, subject to any law governing the terms and conditions of the appointment of such individuals; or
  • otherwise subject to the jurisdiction of the Commission,

to assist the Commission in the performance of the functions of the Commission with regard to a particular investigation or investigations in general.

  • Investigators may-
  • direct any individuals to submit an affidavit or affirmed declaration or to appear before them to give evidence or to produce any Information in their possession or under their control which has a bearing on the matter being investigated, and may examine such individuals;
  • request an explanation from any individuals whom they reasonably suspect of having Information which has a bearing on a matter being or to be investigated;
  • require any individuals appearing as witnesses before them under this section to give evidence on oath or after having made an affirmation; and
  • administer an oath to or accept an affirmation from any such individuals.
  • Investigators shall have power to arrest any individuals for and charge them with the offence of serious corruption, and, with the assistance of the police service, to detain them for the purpose of an investigation.
  • A direction referred to in subsection (3) shall be by way of a subpoena containing particulars of the matter in connection with which the individual subpoenaed is required to appear before the relevant investigator and shall be signed by the relevant Provincial Commissioner and served on the individual subpoenaed either by a registered letter sent through the post or by delivery by an investigator authorised thereto by the relevant Provincial Commissioner.
  • Any individual appearing before the relevant investigator by virtue of the provisions of this section may be assisted at such examination by an advocate or an attorney and shall be entitled to peruse such Information as is reasonably necessary to refresh his or her memory.
  • For the avoidance of doubt, the Commission shall not have the power to require the disclosure of anything that is protected by legal professional privilege.
  • Where investigators who perform official duties are authorised by law to use force, they may use only the minimum force which is reasonable in the circumstances.

21        USE OF SEARCH WARRANTS, ENTERING OF PREMISES AND SEIZURE BY INVESTIGATION UNITS

  • The provisions of Sections 19 to 36 of the Criminal Procedure Act, 1977 (Act 51 of 1977) as amended from time to time, shall apply mutatis mutandis in respect of the functions of the Investigation Units: Provided that-
    • any reference to a ‘police official’ shall be construed as reference to an ‘investigator’ of the relevant Investigation Unit;
      • due regard shall be given to the execution of the mandate of the Commission; and
      • the requirements of this Act shall prevail notwithstanding anything contained in the Criminal Procedure Act, 1977 (Act 51 of 1977) as amended from time to time.
  • Investigators shall be competent to enter any building or premises and there to make such investigation or inquiry as they may deem necessary, and to seize anything on those premises which in their opinion have a bearing on the investigation into serious corruption.
  • The premises referred to in subsection (2) may only be entered by virtue of a warrant issued by a magistrate or a judge of the area of jurisdiction within which the premises is situated: Provided that such a warrant may be issued by a judge in respect of premises situated in another area of jurisdiction, if he or she deems it justified in the furtherance of the mandate of the Commission.
  • The entry and search of any premises under this section must be conducted with strict regard to decency and order, including the protection of the individual’s right to-
  • respect for his or her dignity;
  • freedom and security; and
  • his or her personal privacy.
  • Investigators must identify themselves at the request of the owner or the individual in control of the premises and hand to such owner or individual a copy of the warrant: Provided that if no such owner or individual is present, they must affix a copy of the warrant to the premises at a prominent and visible place.
  • Investigators may, subject to the provisions of this section if they wish to retain anything contemplated in subsection (2) for further examination or for safe custody, remove it from the premises against the issue of a receipt: Provided that any Information or object so removed and which is not intended to be presented as evidence in subsequent proceedings before a court of law, must be returned as soon as practicable after the purpose for which it was removed, has been achieved: Provided further that if there is no individual present to receive the receipt when it is issued, it must be affixed to a prominent place on the premises.
  • If during the execution of a warrant or the conducting of a search in terms of this section, an individual claims that any item found on or in the premises concerned contains privileged information and for that reason refuses the inspection or removal of such item, the investigator executing the warrant or conducting the search shall, if he or she is of the opinion that the item contains Information which is relevant to the investigation or inquiry and that such Information is necessary for the investigation or inquiry, request the registrar of the High Court which has jurisdiction or his or her delegate, to seize and remove that item for safe custody until a court of law has made a ruling on the question whether the Information concerned is privileged or not.

22        INVESTIGATIONS OUTSIDE THE REPUBLIC

  • If the National Commissioner deems it necessary for the purposes of performing the functions of the Commission, and in consultation with the relevant Provincial Commissioner, he or she may direct any investigator to perform service at any place outside the Republic.
  • An investigator in respect of whom a direction has been issued under subsection (1), shall perform service in accordance with such direction and shall, while so performing service, remain, unless the National Commissioner in a particular case otherwise directs, subject to the provisions of this Act as if performing service within the Republic.

CHAPTER 8     LEGAL SERVICES UNITS

23        DUTIES OF THE NATIONAL COMMISSIONER

  • The National Commissioner may review a decision to institute and conduct legal proceedings, or not to do so, and after consulting the relevant Provincial Commissioner and after taking representations, within the period specified by the National Commissioner, of the accused person, the complainant and any other individual or party whom the National Commissioner considers to be relevant, may conduct any investigation he or she may deem necessary in respect of actions taken in respect of legal proceedings.
  • The National Commissioner or an individual designated by him or her in writing, may:authorise any competent individual in the employ of the public service or any local authority to conduct legal proceedings, subject to the control and directions of the National Commissioner or an individual designated by him or her.
  • The National Commissioner or any Provincial Commissioner designated by the National Commissioner shall have the power to institute and conduct legal proceedings in any court in the Republic in person: Provided that the National Commissioner or Provincial Commissioner has the right of appearance to appear in any court within the Republic in terms of the Right of Appearance in Courts Act, 1995 ( Act 62 of 1995).

24        FUNCTIONS OF LEGAL SERVICES UNITS

  • Legal Service Units shall have a duty to institute and conduct legal proceedings in respect of corrupt activities meeting the definition of serious corruption and shall function under the management, control and directions of the relevant Provincial Commissioner.
  • Provincial Commissioners shall, after considering the outcome of investigations by the relevant Investigations Unit, and after consultation with the National Commissioner, direct legal officers in the Legal Services Unit in the Offices of which they are the heads, to institute and conduct legal proceedings in fulfilment of the mandate of the Commission.
  • Legal officers shall have the power and the duty, under the direction of the relevant Provincial Commissioner, to:
    • institute and conduct criminal proceedings on behalf of the State in order to prosecute corrupt activities that meets the definition of serious corruption, and subject to the provisions of the Criminal Procedure Act, 1977 (Act 51 of 1977);
    • carry out any necessary functions incidental to instituting and conducting such criminal proceedings; and
    • if required in fulfilment of the mandate of the Commission, to discontinue such criminal proceedings.
  • Legal officers shall have the power and the duty, under the direction of the relevant Provincial Commissioner, to:
    • institute and conduct civil proceedings on behalf of the State in order to recover assets lost as a result of serious corruption;
    • carry out any necessary functions incidental to instituting and conducting such civil proceedings; and
    • if required in fulfilment of the mandate of the Commission, to discontinue such civil proceedings.
  • No Member or prosecutor who has been suspended from his or her office under this Act or any other law shall be competent to exercise any of the powers referred to in this section for the duration of such suspension.

25        CERTIFICATES TO SHOW VALUE OF CRIMINAL PROCEEDS

  • In any legal proceeding under this Act, a certificate by the National Commissioner as to the value of criminal proceeds, is admissible and is prima facie proof of that value unless the contrary is proven.
  • (2)           A Court shall presume, in the absence of evidence to the contrary, that a certificate purporting to be the certificate of a value by the National Commissioner is such a certificate.

26        POWERS AND DUTY TO INSTITUTE CIVIL PROCEEDINGS

  • The Commission shall have the power to-
    • institute and conduct civil proceedings against any person (including a natural person in their personal capacity, and whether or not an employee of a State Institution) in any court of law for-
    • the recovery of any assets, damages or losses, and the prevention of potential damages or losses, including the loss of assets, which may be, suffered by a State Institution as a result of serious corruption;
    • any relief relevant to any investigation of the Commission; and
    • any relief relevant to the interests of the Commission; and
      • charge and recover fees and expenses from a State Institution for anything done in terms of this Act in respect of that State Institution or a State Institution identified by that State Institution, together with legal costs relating to the Institution and conducting of civil proceedings in terms of this Act, and interest, calculated at the rate prescribed in terms of Section 1(2) of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), from the date of demand.
  • A State Institution which is unable to pay the fees, expenses or legal costs or any part thereof, charged or to be recovered in terms of subsection (1)(b) for a specific financial year or any part thereof, may apply to the National Treasury or, when applicable, the relevant provincial treasury as contemplated in the Public Finance Management Act, 1999 (Act No. 1 of 1999), to be exempted from the payment of such fees, expenses or legal costs or any part thereof.
  • The National Treasury or relevant provincial treasury, which receives an application in terms of subsection (2) must, after consultation with the National Commissioner and after considering the financial position of the State Institution-
    • make a finding regarding the ability of the State Institution to pay the fees, expenses or legal costs or any part thereof charged or to be recovered in terms of subsection (1)(b) for a specific financial year or any part thereof; and
    • inform the National Commissioner and the State Institution concerned of the outcome of the application.
  • A State Institution which applies for an exemption in terms of subsection (2), is liable to pay the fees, expenses or legal costs as provided for in terms of subsection (1)(b) to the extent determined by the National Treasury or relevant provincial treasury in terms of subsection (3)(a).
  • For the performance of the functions referred to in subsection (1), Legal Services Units may-
    • through an investigator require from any individual such particulars and Information as may be reasonably necessary;
    • order any individual by notice in writing under the hand of the Provincial Commissioner or an investigator delegated thereto by him or her, addressed and delivered by an investigator, to appear before a legal officer at a time and place specified in the notice and to produce to it specified Information or objects in the possession or custody or under the control of any such individual: Provided that the notice shall contain the reasons why such individual’s presence is needed;
    • through an investigator, administer an oath to, or accept an affirmation from, any individual referred to in subsection (5)(b), or any individual present at the place referred to in subsection (5)(b), irrespective of whether or not such individual has been required under the said subsection to appear before a legal officer, and question him or her under oath or affirmation.
  • The law regarding privilege as applicable to a witness subpoenaed to give evidence in a criminal case in a court of law shall apply in relation to the questioning of any individual in terms of subsection (5): Provided that an individual who refuses to answer any question on the ground that the answer would tend to expose him or her to a criminal charge, may be compelled to answer such question.
  • No evidence regarding any questions and answers contemplated in the proviso to subsection (6), shall be admissible in any criminal proceedings, except in criminal proceedings where such individual stands trial on a charge of perjury or on a charge contemplated in Section 319 (3) of the Criminal Procedure Act, 1977 (Act 51 of 1977).
  • Any individual appearing before a legal officer by virtue of subsection (5(b) and (c), may be assisted at such examination by a legal representative.
  • Notwithstanding anything to the contrary in any law and for the performance of any of its functions under this Act, the Commission may institute and conduct civil proceedings in its own name or on behalf of a State Institution in any court of law.
  • Without limiting the provisions of subsection (9), if, during the course of an investigation, any matter comes to the attention of the National Commissioner which, in his or her opinion, justifies the institution of civil proceedings by a State Institution against any individual, he or she may bring such matter to the attention of the state attorney or the State Institution concerned, as the case may be.
  • Nothing in this Act precludes a person from instituting and conducting civil proceedings for any loss suffered by that person as a result of any serious corruption, notwithstanding that proceedings in that regard by the Commission have or have not commenced.

CHAPTER 9:    ACCOUNTABILITY AND LIABILITY

27        ACCOUNTABILITY TO PARLIAMENT

  • The National Commissioner may, subject to the provisions of subsection (3), this Act, the Constitution and any law, in the manner he or she deems fit, make known to any individual any finding, point of view or recommendation in respect of a matter investigated by the Commission.
  • The National Commssioner shall report in writing on the activities of the Commission, including on decisions to prosecute or not to prosecute, to the National Assembly at least once every year: Provided that any report shall also be tabled in the National Council of Provinces.
  • The National Commissioner shall, at any time, submit a report to the National Assembly on the findings of a particular investigation if he or she-
    • deems it necessary;
      • deems it in the public interest;
      • determines that it requires the urgent attention of, or an intervention by, the National Assembly;
      • is requested to do so by the Speaker of the National Assembly; or
      • is requested to do so by the Chairperson of the National Council of Provinces
  • The National Commissioner shall ensure any guidance, suggestions and reporting in terms of Section 15(5) are tabled and reported to Parliament.
  • Any report issued by the Commission shall be open to the public, unless the National Commissioner is of the opinion that exceptional circumstances require that the report be kept confidential.
  • If the National Commissioner is of the opinion that exceptional circumstances require that a report be kept confidential, the committee of the National Assembly must be furnished with the reasons therefor and, if the committee concurs, such report shall be dealt with as a confidential document in terms of the rules of Parliament.
  • For the purposes of this section, ‘exceptional circumstances’ shall exist if the publication of the report concerned is likely-
    • to endanger the security of the citizens of the Republic;
    • to prejudice any other investigation or pending investigation of the Commission;
    • to be prejudicial to the interests of the Republic; or
    • in the opinion of the National Commissioner to have a bearing on the effective functioning of his or her office.

28        LIABILITY OF THE COMMISSION

  • The Commission shall be a juristic person.
  • The State Liability Act, 1957 (Act 20 of 1957), shall apply with the necessary changes in respect of the Commission, and in such application a reference in that Act to ‘the department’ shall be construed as a reference to the Commission and a reference in that Act to ‘the Minister of the department’ shall be construed as a reference to the National Commissioner.
  • Nothing done in good faith by any staff member of the Commission, in terms of this Act or the Constitution, and in the course and scope of his or her duties for the Commission and while working under the direction of any Member, shall render that staff member personally liable for any action, claim or demand, whether it be civil or criminal or otherwise.
  • For the avoidance of any doubt, nothing in this section shall protect any staff member of the Commission for anything done outside the ambit of the duties of the Commission.

29        STAFF MEMBERS OF THE COMMISSION ANSWERING QUESTIONS

  • Staff members of the Commission shall be competent but not compellable to answer questions in any proceedings in or before a court of law or any body or institution established by or under any law, in connection with any Information relating to an investigation of the Commission which has come to his or her knowledge.
  • Subject to the provisions of this Act, no staff member of the Commission shall be called to give evidence before any court or tribunal in respect of anything coming to such staff member’s knowledge in the exercise of his or her duties under this Act.

CHAPTER 10:   COMMISSION SECURITY

30        UNAUTHORISED ACCESS TO OR MODIFICATION OF COMPUTER MATERIAL

  • Without derogating from the generality of subsection (2):
    • ‘access to a computer’ includes access by whatever means to any program or data contained in the random access memory of a computer or stored by any computer on any storage medium, whether such storage medium is physically attached to the computer or not, where such storage medium belongs to or is under the control of the Commission;
      • ‘contents of any computer’ includes the physical components of any computer as well as any program or data contained in the random access memory of a computer or stored by any computer on any storage medium, whether such storage medium is physically attached to the computer or not, where such storage medium belongs to or is under the control of the Commission;
      • ‘modification’ includes both a modification of a temporary or permanent nature; and
      • ‘unauthorised access’ includes access by an individual who is authorised to use the computer but is not authorised to gain access to a certain program or to certain data held in such computer or is unauthorised, at the time when the access is gained, to gain access to such computer, program or data.
  • Any person is guilty of an offence if he or she wilfully-
    • gains, or allows or causes any individual to gain, unauthorised access to any computer which belongs to or is under the control of the Commission or to any program or data held in such a computer, or in a computer to which only certain or all staff members of the Commission have access in their capacity such staff members of the Commission; or
    • causes a computer which belongs to or is under the control of the Commission or to which only certain or all staff members of the Commission have access in their capacity as such staff members of the Commission, to perform a function while such individual is not authorised to cause such computer to perform such function; or
    • performs any act which causes an unauthorised modification of the contents of any computer which belongs to or is under the control of the Commission or to which only certain or all staff members of the Commission have access in their capacity as such staff members of the Commission with the intention to-
      • impair the operation of any computer or of any program in any computer or of the operating system of any computer or the reliability of data held in such computer; or
      • prevent or hinder access to any program or data held in any computer.
  • Any act or event for which proof is required for a conviction of an offence in terms of this section and which was committed or took place outside the Republic is deemed to have been committed or to have taken place in the Republic if:
    • the accused was in the Republic at the time when he or she performed the act or any part thereof; or
      • the computer, by means of which the act was done, or which was affected in a manner contemplated in subsection (2) by the act, was in the Republic at the time when the accused performed the act or any part thereof; or
      • the accused was a South African citizen or domiciled in the Republic at the time of the commission of the offence.

31        PROTECTION OF WHISTLEBLOWERS

  • The Protected Disclosures Act, 2000 (Act 26 of 2000) shall mutatis mutandis apply to any individuals who, in good faith, provide Information to the Commission in respect of corrupt activities that may meet the definition of serious corruption: Provided that the requirements of this Act shall prevail notwithstanding anything contained in the Protected Disclosures Act, 2000 (Act 26 of 2000) as amended from time to time.
  • No action or proceeding, including a disciplinary action, may be instituted or maintained against any individual in respect of:
    • assistance given by the individual to the Commission or any staff member of the Commission; or
      • a disclosure of Information made by the individual to the Commission or any staff member of the Commission:

Provided that such individual acted in good faith.

  • In any legal proceedings under this Act, no witness shall be required to identify, or provide Information that might lead to the identification of, an individual who assisted or disclosed Information to the Commission or any staff member of the Commission.
  • In any legal proceedings under this Act, the Court shall ensure that Information that identifies or might lead to the identification of an individual who assisted or disclosed Information to the Commission or any staff member of the Commission is removed or concealed from any Information to be produced or inspected in connection with the legal proceeding.
  • Subsections (3) and (4) shall not apply to the extent determined by the court to be necessary to ensure that justice fully prevails.

32        OFFENCES AND PENALTIES

  • Individuals who are untruthful or misrepresent in any way their qualifications, experience, capability, skills, honesty or anything else which the Commission may consider during the appointment or secondment process of such individuals as staff members of the Commission, including as members of the Investigation or Legal Services Units, as contemplated in Section 8, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 2 years or to both such fine and such imprisonment.
  • Staff members of the Commission, and where appropriate any individuals engaged in terms of Section 9, who contravene Section 10(4) by, during their employment or secondment at, or engagement with, the Commission, act in bad faith, allowing bias to impact their actions or decisions, not acting without fear, favour or prejudice, carrying on any other duty or obligation outside of their employment or secondment at the Commission and in any way allowing the Commission’s independence and integrity to be called into question, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 5 years or to both such fine and such imprisonment.
  • Staff members of the Commission who fail to disclose any interest that is required to be disclosed in terms of Section 10(5) or or 11(5), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 5 years or to both such fine and such imprisonment.
  • Staff members of the Commission who disclose any Information contemplated in Section 10(7), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 5 years or to both such fine and such imprisonment.
  • Persons who improperly and willfully interfere with, hinder or obstruct the Commission or any staff member thereof, in the exercise, carrying out or performance of its or their powers, duties and functions or unduly influences, or attempt to unduly influence such staff member, shall be guilty of an offence, and shall, on conviction, be liable to a fine or to imprisonment for a period not exceeding 25 years or to both such fine and such imprisonment.
  • Persons who improperly and in a fraudulent manner cause any person to provide any kind of payment or exchange of goods in order to allow that person to report serious corruption to the Commission as contemplated in Section 15(4)(d) shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 2 years or to both such fine and such imprisonment.
  • Individuals who become aware of corrupt activities which may constitute serious corruption and do not inform the Provincial Commissioners who are the heads of the Offices where the individuals are employed or seconded to or engaged at, as contemplated in Section 19(5), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 2 years or to both such fine and such imprisonment.
  • Persons who, without just cause-
    • refuse or fail to comply with a direction, order or request by any Member, investigator or legal officer; or
      • refuse to answer any question put to them or give to such question an answer which to their knowledge are false; or
      • refuse to take the oath or to make an affirmation at the request of any Member, investigator or legal officer; or
      • refuse to produce any Information or object after having been required to do so,

shall be guilty of an offence, and liable on conviction to a fine or to imprisonment for a period not exceeding 5 years or to both such fine and such imprisonment: Provided such direction, request or question was issued by that Member, investigator or legal officer in the course and scope of the execution of their powers in respect of this Act.

  • Persons who, in connection with any activity carried on by them, in a fraudulent manner take, assume, use or publish any name, description, title or symbol indicating or conveying or purporting to indicate or convey or which is calculated or is likely to lead other persons to believe or to infer that such activity is carried on under or by virtue of the provisions of this Act or under the patronage of the Commission, or is in any manner associated or connected with the Commission, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 2 years or to both such fine and such imprisonment.
  • Persons who are guilty of an offence in respect of the unauthorised access to or modification of equipment of the Commission as contemplated in Section 30 shall be liable on conviction to a fine or to imprisonment for a period not exceeding 2 years or to both such fine and such imprisonment.
  • Persons who institute any action or proceeding, including disciplinary actions or proceedings, against any individual who assisted the Commission or disclosed Information to the Commission as contemplated in Section 31, and any persons who subject, or who cause to subject, any individual who assisted the Commission, in any way to harrassment or threats of any kind, shall be liable on conviction to a fine or to imprisonment for a period not exceeding 2 years or to both such fine and such imprisonment.
  • Persons who destroy any Information or dispose of any assets relating to, or in anticipation of, any investigation or proceedings in terms of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 2 years or to both such fine and such imprisonment

33        APPLICATION OF ACT

The commencement of this Act shall not affect prosecutions currently pending before the courts in which serious corruption is being tried. All current investigations and prosecutions not yet pending in court shall be transferred to the Commission by the police and NPA upon the commencement of this Act if they involve serious corruption.

34        SHORT TITLE

This Act shall be called the Integrity Commission Act, 2021

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