Trading in influence in the commercial arena : the civil and criminal implications

Abstract

Throughout this paper, the author will focus on corruption; and more specifically, trading in influence, in the commercial field rather than in relation to the public sphere. It is usually allegations of bribery and corruption in the public sphere, with public procurement heading the list particularly in view of the magnitude of public contracts that make the headlines. This however does not, and indeed cannot exclude, the existence of unlawful practices involving bribery and similar practices, in the private sector – simply because it may not make it to the news or has less of a public resonance. It is this issue which the author will research and focus on throughout this paper. The author will delve into the rationale behind extending the phenomenon of trading in influence to the commercial arena and the provisions under our law will be analysed in some detail, as well as whether they pose an adequate deterrent and whether the remedies available are indeed commensurate and adequate for the purpose intended. Both provisions available in both codes were originally introduced in 2002 and were the subject of amendments as recently as 2013; so this paper will look into the basis for the amendments. In addition it is intended to research and analyse useful steps to further curb the fight against private sector corruption. Ultimately, the main focus of this term paper will revolve around the rationale of penalising trading in influence outside the parameters of the public sector and whether there is any public interest justification for both the criminal and the civil law prohibition of trading in influence in the corporate and commercial world.