UNIVERSITY OF KWAZULU-NATAL

SCHOOL OF LAW
POSTGRADUATE DIPLOMA IN FORENSIC INVESTIGATION AND CRIMINAL JUSTICE
LAWS6SC – SUBSTANTIVE CRIMINAL LAW
ASSIGNMENT NO. 2 – SECTION B
MRS M LAZARUS

JEREMY JULIUS - 222120313

QUESTION 4
4.1
The crime of corruption under South African law is an unbundled crime i.t.o. the Prevention
and Combating of Corrupt Activities Act 12 of 2004. The crime is unbundled in the sense that
there is not one single definition, but rather a general crime of corruption, complimented by
various specific forms of corruption under the Act. This unbundled crime, has its roots in
common law crime of bribery. In its most basic form, the crime of bribery involves a scenario
in which the accused gives someone something (gratification) in return for a favour, eg
(Information).
Of course, under the Corruption Act, the unbundled crime of corruption is also more than
bribery under common law. Corruption can be committed by one individual or part of complex
transnational organised crime. This we can classify corruption as primarily a crime against the
community and public welfare.
The crime of corruption is divided into a general crime of corruption, which resembles the
common law crime of bribery, and specific forms of corruption, namely:

 Corrupt activities relating to specific persons, for eg corrupt activities relating to public
officers
 Corrupt activities relating to receiving or offering unauthorised gratification, notably
unauthorised gratification by or to a party to an employment relationship
 Corrupt activities relating to specific matters.
The Corruption Act also contains certain miscellaneous crimes relating to possible conflicts of
interest and other unacceptable conduct, for eg interfering with, hindering or obstructing an
investigation of an offence. In addition, the Corruption Act provides for various forms of liability
based on participation before and after the commission of the crime.
The National Commissioner could be found guilty on Corruption due to that all the elements of
the crime was present when committed the offence. He knew that receiving is an act of
gratification and that it was unlawful to take anything from Mr. Luigi, without declaring it. He
also knew that it was unlawful to share and discuss information w.r.t an investigation pending
against Mr. Luigi. He had the intent to commit corruption.

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Elements of Crime
The act of giving or receiving:

 The National Commissioner received sums of money and clothing from Mr. Luigi
 As per Section 4 (1)(a) – Any public officer who, directly or indirectly, accepts or agrees
or offers to accept any gratification from any other person, whether for the benefit of
himself or herself or for the benefit of another person, such person can be charged and
found Guilty of Corruption.
 Sec 4 (1) (bb) selling of information to Mr. Luigi.

Unlawfulness:
The Commissioner knew that it was unlawful to build a corrupt relationship with Mr. Luigi. He
also knew that it was illegal and unlawful to sell out information to Mr. Luigi w.r.t. an
investigation pending against Mr. Luigi. The National Commissioner received money and
clothing from Mr. Luigi without declaring it. In one context, receiving gifts, such as clothing or
money may be perfectly acceptable as normal business practice, whereas in another context
it may suggest an improper, corrupt relationship.
As per Sec 4 (1) (II)(aa) the National Commissioner abused his position of authority.

Intent:
Corruption is a crime of intent. He had the intention to commit the crime. These gifts was not
just given to him at once. It was given to him over a time period. He had the opportunity to
report the matter to the authorities, but failed to do so.
We can argue that dolus eventualis was present.

As per Snyman “ anybody (a) who accepts any gratification from anybody else, or (b)
gives any gratification to anybody else in order to influence the receiver to conduct
him/herself in a way which amounts to the unlawful exercise of any duties, commits
CORRUPTION.”

4.2
Corruption is a crime of intent-negligence is not enough. Section 2(1) of the Corruption Act
provides for the various forms of knowledge of the fact. These different forms of knowledge
correspond with the various forms of dolus, including dolus eventualis. It also provides for
intentional omission, but not negligent omission. The accused in the case of active corruption
must have the necessary corrupt intent at the moment when he gives or receives the
gratification. In the case of passive corruption, the accused must have the necessary corrupt
intent at the moment when he receives the gratification.
The National Commissioner builds a corrupt relationship with Mr. Luigi. He knew that it return
of the money and clothes he had to return favours to Mr. Luigi. He had the opportunity to report
and declare the transactions and gifts, but he failed to do so.
In the case of S v Selebi, the Supreme Court of Appeal (SCA) considered the application of
section 4(1) of the Corruption Act. The prosecution allegation was that the appellant, the former

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National Commissioner, received various gifts, mostly in the form of expensive clothing, as
well as money. These gifts were allegedly intended to influence Commissioner Selebi in return
for information and other favours. The court first had to establish whether the appellant had in
fact received payments and gifts. Secondly, it had to determine whether the accused-the
recipient or passive party-had provided any unlawful quid pro quo to the giver. The court
accepted that the appellant was at all-time a public officer. As such, the appellant also received
gifts in an unlawful way.
The SCA identified the elements as such:

 Acceptance
 Gratification
 An influence to act in a certain way
 Unlawfulness
 Intent

4.3
Section 3: Any person who, directly or indirectly accepts or agrees or offers to accept any
gratification from any other person;
Section 4: Any public officer who, directly or indirectly, accepts or agrees or offers to accept
any gratification from any other person, whether for the benefit of himself or herself or for the
benefit of another person.

References:
CRIMINAL LAW IN SOUTH AFRICA,3rd ed (G.Kemp)