Exploring South Africa’s capacity to criminalise illicit enrichment

Abstract

Purpose

Illicit enrichment refers to the unjustified increase in the assets of a public official. Criminalisation of illicit enrichment is required under Article 20 of the United Nations Convention Against Corruption, and as a State Party, South Africa is thus expected to deal effectively with illicit enrichment as an offence. This paper aims to address different approaches of various jurisdictions to deal with illicit enrichment and discusses the elements of the crime, drawing on a South African perspective, to determine how illicit enrichment can be criminalised in South Africa.

Design/methodology/approach

The research methodology used was a critical analysis of the definition and elements of the crime, as well as the global action taken to implement this offence. A comparative analysis was used to compare international frameworks with those of South Africa to conclude on the practicality and challenges of introducing the offence of illicit enrichment.

Findings

It was found that an element of the crime, in particular the lack of justification, has been a primary point of criticism, as it is claimed that illicit enrichment laws reverse the burden of proof when an accused is required to prove the legitimacy of his or her assets. However, this issue is not insurmountable in the South African context, and the paper concludes that the criminalisation of illicit enrichment is possible, as South Africa possesses the necessary legislation and case law to support such measure.

Originality/value

This paper contributes to the scholarly research on criminalising illicit enrichment in South Africa.

Citation

McIntyre, J.-L., Aslett, D. and Buitendag, N. (2024), "Exploring South Africa’s capacity to criminalise illicit enrichment", Journal of Financial Crime, Vol. ahead-of-print No. ahead-of-print. https://doi.org/10.1108/JFC-06-2024-0170

1. Introduction

During the 2018 State of the Nation address, the President of South Africa called for lifestyle audits on public officials, which were set to be implemented in from February 2022 (Sidimba, 2021). Since this call in 2018, the Government of South Africa has not been able to conduct such audits due to a lack of guidance and a workable framework. In March 2021, the Department of Public Service and Administration (DPSA) published a lifestyle audit framework (DPSA, 2021), but the framework remains unclear on the process that should be followed when a lifestyle audit finds a standard of living that is not in line with the income of the public official under investigation. The framework merely states that such cases should be referred to the South African Police Service. McIntyre, Aslett and Buitendag (2022) therefore conclude that these referrals may not lead to successful prosecutions, which raises the question whether South Africa should follow the example of various other countries and criminalise illicit enrichment.

Article 20 of the United Nations Convention against Corruption (UNCAC) calls on State Parties to criminalise illicit enrichment, which it defines as “a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income.” This neatly links with the main motivation behind lifestyle audits: to identify unexplained wealth. Many countries around the world have introduced some form of illicit enrichment laws. A study by Dornbierer, for example, identified 78 countries with criminal illicit enrichment laws and 18 with civil illicit enrichment laws, with the vast majority of these countries located in the Asian or African regions (Dornbierer, 2021, p. 44). Criminal provisions are applied to convict individuals who control assets disproportionate to their lawful income, while civil provisions allow governments to seize assets whose lawful origins cannot be explained satisfactorily (Stephenson, 2021). However, Bikelis (2022) found that a limited number of these countries are developed democracies or countries with strong rule-of-law traditions.

This article aims to answer the research question of whether South Africa has the capacity to criminalise illicit enrichment. The research methodology used to address the question was a critical analysis of the definition and elements of the crime, as well as the global action taken to implement this offence. A comparative analysis was used to compare international frameworks with those of South Africa to conclude on the practicality and challenges of introducing the offence of illicit enrichment. To address these objectives, the article is divided into five sections: i) following this introduction; ii) is a discussion on the requirements of the UNCAC; iii) a critical analysis of the definition of illicit enrichment; iv) the challenges that human rights pose to the enforcement of the offence; and v) the current state of South Africa's implementation of Article 20 of the UNCAC. The article will conclude with findings and recommend further action.

2. United Nations Convention Against Corruption

In 1988 the United Nations adopted the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances in Vienna, which provided measures against drug trafficking and money laundering of the proceeds of drug-related crimes. In 2000, as part of the United Nations Convention Against Transnational Organised Crime (referred to as the Palermo Convention), the criminalisation of corruption was specifically addressed in Article 8 (UNODC, 2000). After being directed to incorporate measures on the link of corruption to organised crime, including corruption connected to public officials, the General Assembly developed an independent legal instrument against corruption (Argandoña, 2006). The UNCAC was the product of negotiations held between 2001 and 2003 and was adopted in October 2003.

For the UNCAC to take effect, it must be ratified by at least 30 countries (Article 68). This means that the countries commit to taking legislative and administrative measures to support and implement the Convention. By 2021, 189 countries had ratified the Convention, including South Africa, which adopted the Convention in 2004 (UNODC, 2020). The implementation of UNCAC is monitored by country reviews carried out by selected State Parties, in which the country under review must show how its legislation is aligned with the Convention; or if not, that it has adopted new laws or amended the existing ones to comply with the Convention (Argandoña, 2006).

Article 20 of the Convention, which deals with illicit enrichment, falls under the chapter of criminalisation, but due to the difficulties experienced in introducing such a crime, this article is nonmandatory in nature, meaning that State Parties should consider the practicality of introducing the crime of illicit enrichment against the relevant country's constitution and legislative framework.

South Africa has not criminalised illicit enrichment but stated in the last country review of 2013 that Section 23 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (PRECCA) addresses the illicit enrichment matter by conferring authority on the National Director of Public Prosecutions (NDPP) to apply to a judge for an investigation direction based on certain evidence displaying a disproportionate standard of living (UNODC, 2013). However, at the time of writing in 2024, no evidence exists to show that the provisions of Section 23 of PRECCA have been applied as yet. This implies that South Africa has not been able to successfully address the offence of illicit enrichment since ratifying the UNCAC. This, together with the increase in the incidence of corruption – especially in the public sector over the last few years – raises the question whether South Africa should not strongly consider introducing the criminal offence of illicit enrichment, especially because Section 23 of PRECCA does not create an offence, instead creating specific investigative powers.

3. Illicit enrichment

The earliest mention of illicit enrichment is the case of an Argentinian businessman who, in 1936, encountered a public official that had accrued an amount of wealth which could not have been accumulated with the official’s general income. He attempted to introduce a bill where the government could penalise any public official who could not prove the legitimacy of his/her acquired wealth. It was only later, in the 1960s, that Argentina eventually introduced such legislation (Muzila et al., 2012, p. 7; Dornbierer, 2021, p. 21). Between 1950 and 1980 a few other countries, such as the Philippines, Pakistan, India, Hong Kong, Egypt, and Senegal, had introduced their own versions of illicit enrichment laws.

The rationale for criminalizing illicit enrichment stems from the difficulty in proving the crime of corruption in many instances, because both the giver (active corruption) and the receiver (passive corruption) of the gratification commit an offence (Snyman, 2021, p. 357). It is only when these proceeds enrich a person via the acquisition of visible wealth that it reveals the possibility of an illegal act such as corruption (Muzila et al., 2012, p. 5; Dornbierer, 2021, p. 11). However, identifying the perpetrators who paid over gratifications to enrich the subject of such investigation might prove difficult, especially as such persons would be reluctant to work with law enforcement due to their own criminal behaviour. Therefore, the criminalisation of illicit enrichment enables a state to prosecute public officials and confiscate the wealth they have acquired, based on the idea that unexplained wealth can be the visible proceeds of corruption (Parliament of Montenegro, 2016).

Although illicit enrichment has become a widely known concept, the definition varies among jurisdictions. Illicit enrichment is also not necessarily known as such, with some jurisdictions referring to the concept as “illegal enrichment”, “illicit gains”, “disproportionate wealth”, and “unexplained property” (Parliament of Montenegro, 2016).

3.1 Defining the offence

Definitions help identify and describe the elements that must be present for an accused to be guilty of an offence. Various international and regional anti-corruption instruments and other platforms have defined the offence of illicit enrichment from their respective approaches (Boles, 2014, p. 852; Muzila et al., 2012, p. 11). Boles (2014) explains that illicit enrichment consists of “the knowing receipt (mens rea) and actual possession (actus reus) of unexplained proceeds”.

Article 20 of the UNCAC states that “when committed intentionally, illicit enrichment is a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income”. In some instances, regional instruments go further than the definition found in UNCAC. For instance, Article IX of the Inter-American Convention Against Corruption (IACAC) adds the phrase “during the performance of his functions” to the definition. Article 8 of the African Union Convention on Preventing and Combating Corruption (AUCPCC) uses the same wording as the UNCAC but goes beyond the category of public officials by including “any other person”, because assets derived by means of illicit enrichment may be held in the names of third parties related in some way to the public official (Meskele, 2012).

Similarly, while various countries’ national legislation provides definitions which are aligned to the UNCAC definition (Muzila et al., 2012), many other countries have adopted much wider definitions (Dornbierer, 2021, p. 25). In some instances, jurisdictions have not referred to the wording “intentional” or “significant”. Dornbierer (2021, p. 25) explains that an examination of 98 countries’ definitions of illicit enrichment revealed two fundamental parts, namely: the enjoyment of wealth; and that does not correspond to the person’s lawful income.

To understand the offence of illicit enrichment, the elements of the UNCAC definition will be explored, as this definition forms the foundation of this article.

3.2 The elements of illicit enrichment

According to Muzila et al. (2012, p. 13) and Al Agha (2021, p. 1023), an analysis of the various definitions found in the three conventions discussed above reveals that the offence of illicit enrichment generally consists of the following five elements, which are discussed below:

1. Public official.

2. Period of interest.

3. Significant increase in wealth.

4. Unlawfulness (lack of justification).

5. Fault (in the form of intention).

3.2.1 Public official.

The offence of illicit enrichment, according to the UNCAC definition, targets public officials in particular (Muzila et al., 2012, p. 13). The UNCAC (UNODC, 2009) technical guide defines the term public official to include “staff of all public sector services and all those holding an elected public office”, whilst the UNCAC (UNODC, 2012) itself defines a public official as “the staff of all public sector services, functions, and all those holding an elected public office”.

South African corruption legislation does not define “public official” as such, but instead defines a “public officer” in Section 1 of PRECCA as “any person who is a member, an officer, an employee or a servant of a public body, any person in the public service, any person receiving remuneration from public funds, or where a public body is a corporation, the person who is incorporated as such”. However, the definition states that members of the legislative and prosecuting authorities, as well as judicial officers, are specifically excluded from the definition of public officer.

Comparing the South African definition with that of the UNCAC, the South African public officer term should be refined and redefined to be aligned with the UNCAC definition. However, the findings of the State Capture Commission [1] revealed that corrupt activities in South Africa are not limited to only public officials. Allegations persist that the Gupta family, which had close connections with then President Jacob Zuma, misappropriated approximately R50bn in government assets (Davis, 2021). South Africa could therefore widen its definition of illicit enrichment to include private individuals, as has been done by countries like Pakistan, Bolivia and the Western Australia (Dornbierer, 2021, p. 49).

Considering the above, it is submitted that, if South Africa is to criminalise illicit enrichment, the element under discussion should refer to all persons who have enriched themselves through the illicit means and should not be limited to public officials only.

3.2.2 Period of interest.

The UNCAC’s illicit enrichment definition does not specifically refer to a period over which the enrichment activity took place, but the term “public official” suggests that the activity coincides with the period in which the public official holds office. This is affirmed by countries such as Chile and El Salvador, which include the wording “during his term of service” and “from the date on which the functionary took office to the day he ceased his functions” in their respective definitions of illicit enrichment (Muzila et al., 2012, p. 16). In Venezuela, illicit enrichment is applicable to a public official “who in the performance of his duties” acquires capital; the acquisition of which he or she cannot reasonably explain (Boles, 2014, p. 118).

Countries such as Guatemala, Argentina, and Columbia have extended the period of interest to include up to five years after leaving office, whilst Boles (2014, p. 855) refers to Guyana, where illicit enrichment is applicable to “any person who is or was in public life”. Al Agha (2021, p. 1023) adds that corrupt officials can delay receiving the ill-gotten gains until after leaving their official positions to avoid being prosecuted, and Egypt has therefore extended the term to three years after leaving the public function.

Dornbierer (2021, p. 110) argues that the “period of interest” could also refer to the period in which illicit enrichment occurred, which also broadens the application of this element. From a South African perspective, increasing the period of interest is advisable to ensure that public officers do not escape conviction due to limits of the period of interest. The South African tax approach of accrued vs received income could be applied. Section 1(1) of the Income Tax Act 58 (1962) defines “gross income” as the total amount, in cash or otherwise, received by or accrued to or in favour of a person. Following the same argument, this implies that the period of interest should refer not only to the period of time physically in office but should include benefits accrued to a person while in office or due to holding such office, even if such benefits are physically received at a later stage.

Hong Kong, for example, has applied illicit enrichment laws to a person holding public office or who retired before the law was enacted, provided that the individual still controlled the asset after the date of enactment (Dornbierer, 2021, p. 118). With the current level of corruption in South Africa, including such a provision would be conducive to the possible recovery of illicit wealth, as is done with Section 12(3) of the Prevention of Organised Crime Act (POCA). This section states that a person is seen to have benefitted from unlawful activities, before or after the commencement of the act, if he or she received or retained any proceeds of illicit activities.

3.2.3 Significant increase in wealth.

The three international conventions, the UNCAC, IACAC and AUCPCC, require the prosecution to prove enrichment “in terms of a significant increase in assets” (Muzila et al., 2012, p. 18). Al Agha (2021, p. 1024) argues that this is the main element in proving illicit enrichment.

The term “significant” is described in the international conventions as a relative term (Muzila et al., 2012, p. 18), meaning the courts will need to determine what the meaning of “significant” is if it is not described in domestic legislation. Dornbierer (2021, p. 115) provides examples of countries that specify values of increase in their laws, such as Trinidad and Tobago. Argentina, in turn, requires an “appreciable amount”, which is again left to the courts to determine on a case-by-case basis, while India has specified a minimum amount of increase in cases of illicit enrichment.

Importantly, the increase is not limited to assets such as fixed property, funds in bank accounts, cryptocurrency and other movable property, but also includes the reduction of financial liabilities. Wealth, furthermore, refers to a person’s standard of living or lifestyle. In the Hong Kong case of Ernest Percival Max Hunt v the Queen (1974), for example, the court held that a standard of living includes the procurement of goods and services and the enjoyment thereof (Dornbierer, 2021, pp. 52–53). In this context, to determine an individual’s standard of living or lifestyle, the courts will need to use a mathematical calculation comparing the total amount of wealth acquired over a period with the total amount of lawful income received over the same period (Dornbierer, 2021, p. 108). This methodology is also known as the net worth method and is part of a series of methods that can be applied to perform a lifestyle analysis, often referred to as a lifestyle audit (McIntyre and De Villiers, 2020, p. 15).

In South Africa, the process of introducing lifestyle audits on public officials commenced in 2021 when the DPSA released a framework entitled Guide to Implement Lifestyle Audits in the Public Service (DPSA, 2021). McIntyre et al. (2022), however, argue that while the implementation of lifestyle audits is a step in the right direction, the process falls short of taking action based on the results of such lifestyle audits.

Demonstrating the legitimacy of a public official’s wealth and performing a lifestyle audit in South Africa should not prove to be too difficult due to the Financial Disclosures Framework, as per the Public Service Regulations (GN R877 in GG 40166 of 29 July 2016), in which senior management members are required to annually disclose their financial interests. The Executive Members Ethics Act 82 (1998) also requires all Cabinet members, deputy ministers and Members of the Executive Council to disclose their financial interests. The effectiveness of these measures is, however, questionable. During a cabinet briefing in March 2021 a member of Parliament of the EFF [2], Veronica Mente, questioned these financial declarations to Parliament, stating that the former Bosasa executive, Angelo Agrizzi, disclosed to the State Capture Commission [3] proof that MPs received benefits from the company which had not been declared to Parliament (De Klerk, 2021).

Cave (2021) adds that while annual financial disclosures are already a mandatory requirement for some public officials, such declarations can be seen as an event rather than a process. However, it is submitted that this compliance exercise can form the premise on which lifestyle audits can be constructed and managed if all public officials are compelled to disclose their financial interests. Failure to declare a financial interest may also serve as evidential material in a prosecution for an offence of illicit enrichment, but this will apply only if a legal duty exists to declare such interests. In the Judicial Commission of Enquiry into State Capture (2022) Report, Part VI, it is also recommended that public officials above a certain level, as well as executives of companies wishing to do business with the State, undergo compulsory and regular lifestyle audits.

Section 100 of the South African Criminal Procedure Act 51 of 1977 states that a charge alleging the theft of money or property by a person entrusted with the control thereof may allege a general deficiency in a stated amount, notwithstanding that such general deficiency is made up of specific sums of money or articles or of a sum of money representing the value of specific articles, the theft of which extended over a period. For example, in 2016 a South African attorney named Ian Stokes was found guilty of theft by general deficiency where he had used R5.7m of his clients’ trust funds relating to Road Accident Fund claims to pay his creditors (S v. Stokes, 2008). In this instance, namely general deficiency, theft is proven by a decrease of entrusted wealth over a period of time. Hence, creating an offence based on the opposite, i.e. a significant increase in wealth over a period of time that cannot be explained, would not be completely foreign in the South African context. Furthermore, under the South African legislation and frameworks that are currently in place, calculating the (significant) increase in wealth should not prove too difficult, especially if the methods used for lifestyle audit calculations are properly used.

3.2.4 Unlawfulness (lack of justification).

This element pertains to the inability to provide a legitimate reason for the enrichment, as per the definitions of all three of the conventions “[…] that he or she cannot reasonably explain” (Muzila et al., 2012, p. 23). Many countries have included this element in their statutory definitions (Boles, 2014, p. 857), requiring the targeted person to explain the difference between the calculated wealth and known sources of income (Dornbierer, 2021, p. 106). In Ethiopia and Hong Kong, for example, a person shall be guilty of an illicit enrichment offence unless he/she can provide evidence to the court to explain how he/she was able to maintain a standard of living or how the property came under his/her control (Boles, 2014, p. 96).

However, it may be argued that the lack of justification element places the burden of proof on the public official, thus supporting arguments against the criminalisation of illicit enrichment (Muzila et al., 2012, p. 23). Such arguments pose that criminalisation of illicit enrichment infringes upon the fundamental principle of the presumption of innocence, in effect shifting the burden of proof from the prosecution to the accused (Muzila et al., 2012, p. 23), which Boles (2014, p. 857) labels as “reverse-onus”. However, in some countries, the burden of proof remains on the prosecution. Dornbierer (2021, p. 62) provides the example of Chile’s illicit enrichment law, which specifically states: “the proof of unjustified enrichment shall always be the responsibility of the Public Prosecutor’s Office”.

Considering the above, the unlawfulness element seems to be the greatest hurdle in the criminalising of illicit enrichment due to its possible incompatibility with human rights such as the right to a fair trial, the presumption of innocence and the right to remain silent, which are also provided for in South Africa’s Constitution. This issue is explored in more detail in the section on human rights below.

3.2.5 Fault (in the form of intention).

The UNCAC definition in article 20 includes the wording ‘when committed intentionally’, meaning that the offence cannot be committed negligently. None of the other two conventions mentions the fault element, and Dornbierer (2021, p. 119) states that elements of “intent” or “knowledge” are not common words used in domestic illicit enrichment laws.

In South African criminal law, intention is established via a subjective enquiry (Snyman, 2021, p. 167) and means that a person commits an act: (1) while his will is directed towards the commission of the act or the causing of the result; (2) in the knowledge of (a) the existence of the circumstances mentioned in the definitional elements of the relevant crime, and (b) in the knowledge of the unlawfulness of the act (Snyman, 2021, p. 159).

Section 1(2), which provides for the intention related to the offences created by POCA, states that a person has knowledge of a fact if (a) the person has actual knowledge of that fact; or (b) the court is satisfied that (i) the person believes that there is a reasonable possibility of the existence of that fact; and (ii) he or she fails to obtain information to confirm the existence of that fact. The test of intention, as listed in POCA, could be applied in its current form to the fault element of the crime of illicit enrichment.

Possession in South African criminal law refers to two elements that should be present, 1) the physical control over an article and 2) the intention with which control is exercised over an article (Snyman, 2021, p. 52). In S v. Singiswa (1981), the court held that a person could have control over an article even though the article is not in his or her immediate presence.

Therefore, if South Africa was to criminalise illicit enrichment, the element of intention would require a person to have the will to cause the result of obtaining the article and the knowledge of such an act. Being in possession of the article can refer to physical possession or simply having control over such an article; meaning “the knowing receipt (mens rea) and actual possession (actus reus) of unexplained proceeds”.

4. The human rights challenge facing the criminalisation of illicit enrichment

During the drafting of the UNCAC, some delegations argued that the criminalisation of illicit enrichment would violate certain human rights such as the presumption of innocence and the reversal of the burden of proof (Meskele, 2012, p. 15). UNCAC was therefore drafted in such a manner that certain provisions would be non-mandatory and States should only introduce these measures where their constitution allows. However, according to Muzila et al. (2012, p. 16) human rights and constitutional arguments often arise in illicit enrichment discussions. Furthermore, it is important to note that some human rights are universally applied to all human beings, while constitutional rights are specific to jurisdictions.

Sihanya and Ngumbi (2020, p. 107) argue that when one weighs the public interest against individual rights, a greater level of caution should be exercised. However, they are of the opinion that the wider public good in a corrupt-free country should supersede individual rights, as corruption is an obstacle to the realisation of other constitutional rights. Peters (2018, p. 1252) adds to this by discussing the key documents of the United Nations which refer to corruption as having a negative impact on the enjoyment of human rights; its undermining of human rights; and its grave and devastating effects on the enjoyment of human rights. The United Nations' Committee on Economic, Social and Cultural Rights (UN CESCR, 2017) asserts that States violate their duty to protect Covenant rights when insufficient safeguards exist to address the corruption of public officials.

From a South African perspective, this sentiment is echoed in various court cases. In South African Association of Personal Injury Lawyers v. Heath (2001), for instance, the Constitutional Court held that corruption and maladministration are inconsistent with the rule of law and the fundamental values of our Constitution. They undermine the constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms. They are the antithesis of the open, accountable, democratic government required by the Constitution. If allowed to go unchecked and unpunished, they will pose a serious threat to our democratic state.

Also, in S v. Shaik (2007), the Supreme Court of Appeal held that corruption offends against the rule of law and the principles of good governance. It lowers the moral tone of a nation and negatively affects development and the promotion of human rights.

And in Glenister v. President of the Republic of South Africa (2011) the court held that “corruption has deleterious effects on the foundations of our constitutional democracy and on the full enjoyment of fundamental rights and freedoms"; that “endemic corruption threatens the injunction that government must be accountable, responsive, and open” and “It is incontestable that corruption undermines the rights in the Bill of Rights and imperils democracy”.

Scholarly research by Landman, Jan and Schudel (2007) found that countries with high rates of corruption were also countries with a poor human rights record, and Muzila et al. (2012, p. 28) add that countries with a pressing need to eradicate corruption have the same need to strengthen their laws as weaker law implies a lower probability of the detection (and prevention) of corruption. It is therefore imperative that governments find a way to balance crime control and due process where illicit enrichment is involved. The following discussion aims to explore how such balancing act can be found in the South African context.

4.1 Presumption of innocence

The definition in Article 20 of the UNCAC contains the wording “[…] that he or she cannot reasonably explain in relation to his or her lawful income” (UNODC, 2012). Illicit enrichment laws, therefore, require people to explain how they obtained the wealth which has been shown to be disproportionate to the person's known or legal sources of income.

Hence, illicit enrichment laws have caused concern regarding their compatibility with established legal principles of due process. Such concerns entail objections raised against placing a burden of proof on the accused to provide evidence on the legality of acquired assets, which detractors view as a reverse onus violating the presumption of innocence (Dornbierer, 2021, p. 121). The argument is that during a criminal matter, the elements of a crime must be proven “beyond reasonable doubt” by the State (Dornbierer, 2021, p. 122).

The principle of presumption of innocence is universally established and is included in many countries' constitutions, with Article 14(2) of the International Covenant on Civil and Political Rights stating that “everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to the law” (Dornbierer, 2021, p. 123). The presumption of innocence is a safeguard that protects accused persons from wrongful conviction and punishment (Boles, 2014, p. 846).

In the South African context, the Bill of Rights (section 35(3)(h)) firmly entails the presumption of innocence, stating that every accused person has the right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings.

Although many jurisdictions across the globe hold that a reverse onus infringes on the right to be presumed innocent until proven, there are arguments to suggest that the right to innocence is not absolute (Dornbierer, 2021, p. 124). It is important to maintain public confidence in the criminal justice system by not acquitting the guilty, and many countries have accordingly placed a limit on the presumption of innocence (Boles, 2014, p. 864). Stephenson (2021) adds that in almost all of the countries where courts have examined the issue of a reverse burden of proof, it was concluded that illicit enrichment laws do not infringe on the right to be presumed innocent.

In South Africa, Section 36 of the Constitution provides for the limitation of rights as far as they are “reasonable and justifiable"; and provides five factors against which the right and limitation must be tested. These factors are:

1. the nature of the right;

2. the importance of the purpose of the limitation;

3. the nature and extent of the limitation;

4. the relation between the limitation and its purpose; and

5. the existence of less restrictive means to achieve the purpose.

One piece of case law which is of significance on this point is the decision taken in Salabiaku v. France (1988), where it was held that the presumption of innocence principle is not absolute and the State should keep the presumption within reasonable limits and may allow burden-shifting provisions (Dornbierer, 2021, p. 124). This was echoed in the South African case S v. Manamela (2000). Section 37 of the General Law Amendment Act (1955), which makes it an offence to acquire stolen goods otherwise than at a public sale without having reasonable cause to believe that the person disposing of them was entitled to do so, was unconstitutional due to the reverse onus, which it placed on the accused. The court held that the creation of a reverse onus in the original wording of the section (which provided that the onus was on X to prove that he had reasonable cause for believing that the goods were not stolen) infringed upon the right to remain silent and that this infringement could not be justified by the limitation clause. However, the court used its powers to read words into the legislation to rectify the invalid reverse onus. The changed provision obliged the accused to produce evidence of a belief that could reasonably be true. The court held that it was admissible in the circumstances to require the accused to prove on a balance of probabilities that he or she held a reasonable belief of honest acquisition of the goods.

Applying the same principles of a reasonable explanation on a balance of probabilities if South Africa were to criminalise illicit enrichment would possibly provide constitutional muster against challenges based on reverse onus and the right to innocence.

4.2 Right to remain silent

The right to silence is established in the Bill of Rights (section 35(h)) contained in the South African Constitution. Such a right to silence and protection against self-incrimination are deeply rooted principles in various judicial systems (Dornbierer, 2021, p. 142; Muzila et al., 2012, p. 32).

The right to silence is not absolute. In O'Halloran and Francis v. United Kingdom (2008), for instance, it was held that the right against self-incrimination is not absolute. Examples of cases where one might be required to self-incriminate include the requirement to submit to a breathalyser test and public servants being required to submit financial declarations (Muzila et al., 2012, p. 33).

Courts have also drawn negative inferences from an accused's silence, where factual circumstances allowed it (Muzila et al., 2012, p. 33). An example is found under Section 36 of the South African General Law Amendment Act (1955), which provides as follows.

Any person who is found in possession of any goods, other than stock or produce as defined in section 13 of the Stock Theft Act, 1923 (Act 26 of 1923), in regard to which there is reasonable suspicion that they have been stolen and is unable to give a satisfactory account of such possession, shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of theft.

In Osman v. Attorney-General, Transvaal (1998), the appellants were found in possession of suspicious goods and were unable to satisfactorily explain such possession. They challenged the constitutionality of this section stating that it violated (1) the right of an arrested or detained person not to be compelled to make a confession or admission which could be used in evidence against him or her, and (2) the rights of an accused person to be presumed innocent, to remain silent, and not to give evidence. Justice Madala found that the State needed to prove its case beyond reasonable doubt, whether or not the accused elected to remain silent, but should the accused choose to not provide an explanation, the State might be successful in proving the elements of the crime. Therefore, the choice of whether or not to give evidence is left to the accused. The Constitutional Court held that the provision was not incompatible with the Constitution as it did not violate the right to remain silent, the right not to be compelled to make any confession or admission, and the right to be presumed innocent.

By comparing the above provision with the issue surrounding the right to remain silent in a case of illicit enrichment, it could be argued that furnishing the accused with the opportunity to provide a reasonable explanation of the origin of his/her wealth is an opportunity given to the accused to have him/herself acquitted and does not infringe on the right to remain silent.

5. South Africa's response to implementing illicit enrichment: PRECCA – Section 23

In the South African Country Review Report on the implementation of Chapter III (Criminalisation and law enforcement) and Chapter IV (International cooperation) in 2013, South Africa claimed that it complied with Article 20 by means of the administrative mechanism established under Section 23 of PRECCA (UNODC, 2013).

Section 23 provides for the NDPP to apply to a Judge in Chambers for the issuing of an investigation direction based on the following evidence presented: a) a person maintaining a standard of living which is disproportionate to his or her known sources of income or assets; b) a person who is in control or possession of property or resources unequal to his or her known sources of income or assets; and c) the person maintaining a standard of living funded by corrupt activities or the proceeds of unlawful activities or the resources in b) are instrumentalities of corrupt or unlawful activities; and d) an investigation is expected to disclose information, documents or things to prove the unlawful activities in c). The NDPP can further summon the person specified in the investigation to appear before him/her or the person can be requested to produce the property, document or thing as stipulated in Section 23(d).

However, Section 23(5)(d) of PRECCA is clear that no evidence acquired in the process of questioning and answering shall be admissible in criminal proceedings, indicating that this piece of legislation does not address illicit enrichment from a criminal perspective. Perhaps the intention was to recover the losses from a civil perspective and not to address the UNCAC’s Article 20 request as a criminal matter. However, if it was meant from a civil perspective, the question arises as to how this section would be enforced if the investigation reveals sources of unknown income in the hands of a public official, i.e. illicit enrichment.

6. Conclusion

Article 20 of the UNCAC provides for the criminalisation of illicit enrichment. South Africa is a State Party to this Convention and should therefore consider criminalising illicit enrichment in its domestic legislation. South Africa’s current response, found under Section 23 of PRECCA, does not adequately address this matter, and the question remains whether South Africa should criminalise illicit enrichment as an offence in its own right.

The definition of illicit enrichment used by various countries aligns with the UNCAC definition: “[…] when committed intentionally, illicit enrichment is a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income”. The five elements of the definition have been discussed from a South African perspective. This study shows how four of these elements, namely, public official, period of interest, significant increase in wealth and fault in the form of intention, would not constrain the implementation of illicit enrichment as an offence in the South African context.

The remaining element of unlawfulness (or lack of justification) has faced concerns regarding human rights violations in various jurisdictions. In many countries’ constitutions, the presumption of innocence and the right to remain silent constrain the implementation of illicit enrichment as an offence. However, from a South African perspective, court cases related to other crimes have shown that the presumption of innocence and the right to remain silent are not absolute.

Therefore, this study highlights the fact that South Africa’s domestic legislative framework does not hinder the introduction of illicit enrichment as an offence and provides the foundations for the development of legislation to criminalise illicit enrichment to curb corruption in South Africa.

Notes

1. “State capture” refers to the way private individuals and companies have commandeered organs of state to redirect public resources into their own pockets.

2. The Economic Freedom Fighters (EFF) is a political party in South Africa with its representatives in Parliament referred to as Members of Parliament (MPs).

3. Refers to the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (see www.statecapture.org.za).