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C – Statutory Offences

C – Statutory Offences. 2019 Certificate in Forensic Investigation Techniques, Wednesday 28 August 2019. Statutory Crimes generally associated with Forensic Investigation. Prevention and Combating of Corrupt Activities Act 12 of 2004 (PACOCA)

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C – Statutory Offences

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  1. C – Statutory Offences 2019 Certificate in Forensic Investigation Techniques, Wednesday 28 August 2019

  2. Statutory Crimes generally associated with Forensic Investigation • Prevention and Combating of Corrupt Activities Act 12 of 2004 (PACOCA) • General crime of corruption / Specific forms of corruption within the public & private sectors. • Prevention of Organised Crime Act 121 of 1998 (POCA) • Crimes relating to racketeering / money laundering / criminal gang activity; • Asset forfeiture provisions.

  3. Statutory Crimes generally associated with Forensic Investigation • Public Finance Management Act 1 of 1999 (PFMA) • Maladministration: Disciplinary Action / Offences • Municipal Finance Management Act, 56 of 2003 (MFMA) • Maladministration: Disciplinary Action / Offences • Companies Act 71 of 2008 • Duties of Directors / Breach of confidence / Reporting Duties / Offences

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  5. Part 1:Prevention and Combating of Corrupt Activities Act 12 of 2004 (Precca)

  6. Introduction to PRECCA • To provide for the strengthening of measures to prevent and combat corruption and corrupt activities; • to provide for the offence of corruptionand offences relating to corrupt activities; • to provide for investigative measures in respect of corruption and related corrupt activities; • to place a duty on certain persons holding a position of authority to report certain corrupt transactions;

  7. Introduction to PRECCA • to provide for the establishment and endorsement of a Register in order to place certain restrictions on persons and enterprises convicted of corrupt activities relating to tenders and contracts; • to provide for extraterritorial jurisdiction in respect of the offence of corruption and offences relating to corrupt activities;

  8. Introduction to PRECCA • PRECCA sets out reasons why corruption must be addressed: • Corruption and related corrupt activities: • undermine the rights in the Bill of Rights (and governments ability to provide and enforce these right), • endangerthe stability and security of societies,

  9. Introduction to PRECCA • Corruption and related corrupt activities: • undermine the institutions and values of democracy / ethical values / morality, • jeopardise sustainable development / rule of law / credibility of governments, • and provide a breeding ground for organised crime;

  10. Introduction to PRECCA In broad terms the PRECCA makes provision for 3 types of offences: • General offences of corruption – Section 3 • Corruption offences related to specific persons – Sections 4-9 • Corruption offences related to specific events – Section 11-16

  11. Introduction to PRECCA Read section 3 - General offence of corruption: • Any person who, directly or indirectly- • (a) accepts or agrees or offers to accepta gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or • (b) gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or for the benefit of another person,

  12. Introduction to PRECCA General offence of corruption: • in order to act personally or by influencing another person so to act in a manner- • that amounts to the- • (aa) illegal, dishonest, unauthorised, incomplete, or biased; or

  13. Introduction to PRECCA General offence of corruption: • (bb) misuse or selling of information or material acquired in the course exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or another legal obligation;

  14. Introduction to PRECCA General offence of corruption: that amounts to- • (aaa) the abuse of a position of authority / • (bbb) a breach of trust; / • (ccc) the violation of a legal duty or a set of rules; • designed to achieve an unjustified result: or that amounts to any other unauthorised or improper inducement to do or not to do anything is guilty of the offence of corruption

  15. Introduction to PRECCA Corruption offences related to specific persons – Sections 4-9 • Public Officers; Foreign Public Officials; Agents; Members of the Legislative Authority; Judicial Officers; Members of the Legislative Authority; Judicial Officers & Members of the Prosecuting Authority.

  16. Introduction to PRECCA Corruption offences related to specific events – Section 11-16 • Witness & Evidential Materials; Contracts (NB with Procurement); Procuring or withdrawal of Tenders; Auctions; Sporting Events & Gambling Games

  17. Introduction to PRECCA Also: • Conflict of Interest; • Interference, hindering or obstruction of investigation; • Accessory to or after the offence

  18. Introduction to PRECCA • Section 34 requires all people in positions of authority in both public and private sector to report corruption to the police if it involves more than R100 000. Failure by people in positions of authority to report corruption is an offence!

  19. Introduction to PRECCA • Who are people in positions of authority? • The director-general/ head of national or provincial government; • The municipal manager of the municipality; • The principal or head of a tertiary institution; • The director of a company; the CEO; a Partner in a partnership • The executive manager of a banketc

  20. Introduction to PRECCA Penalties – Sections 26 • The Act imposes penalties for people who are convicted of corrupt activities. Hefty prison sentences can be imposed, as well as fines. • If convicted in the High Court, one can receive up to life imprisonment.

  21. Introduction to PRECCA Penalties – Sections 26 • The Act imposes penalties for people who are convicted of corrupt activities. Hefty prison sentences can be imposed, as well as fines. • If convicted in the regional magistrates’ court, one can receive a sentence of up to 18 years in prison. • If convicted in the district magistrates’ court, one can receive up to five years in prison.

  22. Introduction to PRECCA Penalties – Sections 26 • Fines up to R250 000 PLUS • In addition to any fine a court may impose the court may impose a fine equal to five times the value of the gratification involved in the offence.

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  24. PART 2:Public Finance Management Act 1 of 1999 (PFMA)

  25. Introduction to Pfma • To regulate financial management in the national government and provincial governments; • to ensure that all revenue, expenditure, assets and liabilities of those governments are managed efficiently and effectively; • to provide for the responsibilities of persons entrusted with financial management in those governments; • and to provide for matters connected therewith.

  26. Introduction to Pfma • The Act aims to secure transparency, accountability and sound financial management in government and public institutions. • The Act clarifies the laws in relation to the National and Provincial Treasuries, the National and Provincial Revenue Funds, and the National Budgets.

  27. Introduction to Pfma • It also governs the management of finances in departments, public entities (like ESKOM and TELKOM), Parliament and the provincial legislatures, and constitutional institutions (like the Human Rights Commission, the Commission on Gender Equality and the Independent Broadcasting Authority).

  28. Introduction to Pfma Chapter 5 & 6: Accounting Officers • All departments and constitutional institutions (plus public entities) must appoint an accounting officer to ensure that money is managed effectively, efficiently and transparently. • Must ensure that resources are used economically and that assets are looked after. • Must maintain internal audit system and a system for evaluating projects.

  29. Introduction to Pfma Chapter 5 & 6: Accounting Officers • Must keep full and proper records of the financial affairs + required to prepare and submit detailed financial statements to the Auditor-General and comprehensive annual reports and statements to the relevant treasury.

  30. Introduction to Pfma Chapter 7: Executive Authorities • S 63. Executive Authorities MUST: • perform their statutory functions within the limits of the funds authorised for the relevant vote. • consider the monthly reports submitted to them. • exercise that executive’s ownership control powers to ensure that that public entity complies with this Act and the financial policies of that executive.

  31. Introduction to Pfma Chapter 10 - Financial Misconduct (Part 1 Disciplinary Proceedings): • An accounting officer for a department or a constitutional institution commits an act of financial misconduct if that accounting officer wilfully or negligently— • (a) fails to comply with a requirement of various sections or

  32. Introduction to Pfma Chapter 10 - Financial Misconduct (Part 1 Disciplinary Proceedings): • (b) makes or permits an unauthorised expenditure, an irregular expenditure or a fruitless and wasteful expenditure.

  33. Introduction to Pfma Chapter 10 - Financial Misconduct (Part 1 Disciplinary Proceedings): • unauthorised expenditure • (a) overspendingof a vote or a main division within a vote (“allocation of funds”); • (b) expenditure not in accordance with the purpose of a vote;

  34. Introduction to Pfma Chapter 10 - Financial Misconduct (Part 1 Disciplinary Proceedings): • irregular expenditure • expenditure, other than unauthorised expenditure, incurred in contravention of (a) this Act; or (b) the State Tender Board Act, 1968 (Act No. 86 of 1968), or any regulations made

  35. Introduction to Pfma Chapter 10 - Financial Misconduct (Part 1 Disciplinary Proceedings): • fruitless and wasteful expenditure • expenditure which was made in vain and would have been avoided had reasonable care been exercised; • Fruitless and wasteful expenditure will always emanate from an action or lack of action instigated by an official that resulted in a financial loss to the institution..

  36. Introduction to Pfma Chapter 10 - Financial Misconduct (Part 1 Disciplinary Proceedings): • A charge of financial misconduct against an accounting officer or official referred to in section 81 or 83, or an accounting authority or a member of an accounting authority or an official referred to in section 82, must be investigated, heard and disposed of…

  37. Introduction to Pfma Chapter 10 - Financial Misconduct (Part 1 Disciplinary Proceedings): • … in terms of the statutory or other conditions of appointment or employment applicable to that accounting officer or authority, or member or official, and any regulations prescribed by the Minister in terms of section 85.

  38. Introduction to Pfma Chapter 10 - Financial Misconduct (Part 2 Criminal Proceedings): S86 - Criminal offences include the following: • wilful or gross negligence on the part of an accounting officer; • wilful or gross negligence on the part of an accounting authority; and

  39. Introduction to Pfma Chapter 10 - Financial Misconduct (Part 2 Criminal Proceedings): S86 - Criminal offences include the following: • unauthorisedloans or entering into a binding financial contract without permission on behalf of a department, public entity or constitutional institution. If a person is found guilty, they will be liable to a fine or imprisonment for a period of up to five years.

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  41. PART 3:Municipal Finance Management Act, 56 of 2003 (MFMA)

  42. Introduction to MFMA • To secure sound and sustainable management of the financial affairs of municipalities and other institutions in the local sphere of government; • To establish treasury norms and standards for the local sphere of government; • and to provide for matters connected therewith.

  43. Introduction to MFMA • The MFMA must be read together with three other critical pieces of legislation: the Municipal Structures Act, the Municipal Systems Act and the Property Rates Act. • All four of these Acts have been designed to give effect to the 1998 White Paper on Local Government, which aims to transform municipalities to become more participatory, transparent and accountable.

  44. Introduction to MFMA • The principles behind the reforms aim to improve financial affairs in local government and develop a more strategic approach to local service delivery. • Effective service delivery is possible only with good-quality + timely management information - proactive, identifying and solving problems as they arise

  45. Introduction to MFMA • The Act also differentiates between the role of executive councillors and their officials by making the executive mayor or committee responsible for policy and outcomes and the municipal manager and other senior managers for implementation and outputs.

  46. Introduction to MFMA • The key policy theme is to enable managers to manage, but to make them more accountable. The long-term vision is: – • sound financial systems and processes, producing the necessary information for managers; • transparentbudgeting processes; • effective management of revenue, expenditure, assets and liabilities; • unqualified financial statements, prepared on the accrual basis and on time.

  47. Introduction to MFMA • The five underlying principles in the MFMA: • Promoting sound financial governance by clarifying roles • A more strategic approach to budgeting and financial management • Modernisationof financial management • Promoting co-operative government • Promoting sustainability

  48. Introduction to MFMA • S 69. Code of Conduct for municipal staff members.—Code of Conduct contained in Schedule 2 of MFMA applies to every staff member.

  49. Introduction to MFMA Chapter 8 – Responsibilities of Municipal Officials (Part 1: Accounting officers) • S 60. Municipal managers are the accounting officer of the municipality for the purposes of this Act, and, as accounting officer, must— • exercise the functions and powers assigned to an accounting officer in terms of this Act; and

  50. Introduction to MFMA Chapter 8 – Responsibilities of Municipal Officials (Part 1: Accounting officers) • provide guidance and advice on compliance with this Act to the political structures, political office bearers and officials of the municipality; and any municipal entity under the sole or shared control of the municipality.

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