OECD urges South Africa to reform bribery sentencing framework

Edward James and Vishana Mangalparsad of Pinsent Masons were commenting following the most recent efforts by the Organisation for Economic Co-Operation and Development’s (OECD) Working Group on Bribery in International Business Transactions to assess South Africa’s ability to tackle foreign bribery.

The working group recently concluded its fourth evaluation of South Africa’s implementation of the OECD Anti-Bribery Convention Combating Bribery of Foreign Public Officials in International Business Transactions. The latest report focusses on South Africa’s achievements and challenges in enforcing foreign bribery offences, noting the acute challenges presented by state capture. 

It follows three earlier phases of evaluation of the country’s anti-bribery framework, starting with a legal assessment (Phase 1) and later examining practical enforcement and ongoing monitoring (Phases 2-4), with each phase building on the working group’s previous findings and recommendations.

The fourth report indicates that South Africa has made notable improvements in detecting and investigating foreign bribery, including increased coordination with domestic and international partners, since the last evaluation in March 2014 (Phase 3).

Since then, the country has opened investigations into 28 foreign bribery allegations and brought its first case to court in 2019, which was ultimately dismissed due to the accused’s death. Despite this progress, to date South Africa has not yet secured a high-profile conviction for foreign bribery.

The working group identified several challenges to the country’s ability to combat foreign corruption effectively. Several investigations have been stalled, often because of waiting for mutual legal assistance (MLA) from other countries. It also said that while legislation has improved, whistleblowers still face significant risks, including threats to physical safety.

An important finding of the working group was the need to rebuild a strong and independent National Prosecuting Authority (NPA) after years of state capture through conducting the necessary reforms. 

Commenting on the evaluation, James, an anti-corruption and bribery expert at Pinsent Masons, said: “South Africa has made progress in anti-bribery enforcement and institutional reform since the last OECD review, but significant gaps remain. The working group rightly identified the need to rebuild a strong prosecuting authority. Whilst having good laws is one thing, enforcing those laws is another. Without effective enforcement, corruption will remain prevalent.”

In November 2024, South Africa proposed new legislation to establish a standalone Anti-Corruption Commission (ACC) as an independent ‘Chapter 9’ institution – a state institution established under Chapter 9 of the South African Constitution. However, the legislation has failed to receive the backing of the country’s Department of Justice and Constitutional Development (DJCD) or the NPA.

Mangalparsad said the report underscored the limitations of the country’s existing institutions to fight foreign bribery. “The report acknowledges South Africa’s significant efforts to strengthen its anti-bribery framework, particularly in the wake of the ‘state capture’ era,” she said. “However, despite various reforms, the absence of any key convictions or sanctions remains a glaring gap. While the legal framework is largely in place, enforcement, institutional independence, and practical protections for whistleblowers and investigators require urgent attention.”