Com­pli­ance a busi­ness im­per­a­tive

Lo­cal firms and their branch of­fices will be held ac­count­able in SA for trans­gres­sions

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - AYE­SHA DAWOOD

IF COM­PLI­ANCE is not a cen­tral pivot of your com­pany it should be. Com­pli­ance is re­spect for laws, reg­u­la­tions and ethics and plays a sig­nif­i­cant role in your com­pany’s busi­ness de­ci­sions.

SA’s com­pli­ance caveats are mul­ti­dis­ci­plinary — rang­ing from an­ticor­rup­tion/an­tib­ribery to lim­its on an­ti­com­pet­i­tive be­hav­iour, con­sumer and data pri­vacy, trade and cus­toms, en­vi­ron­men­tal, mar­ket­ing, in­tel­lec­tual property in­clud­ing trade se­crets, labour in­clud­ing hu­man cap­i­tal le­gal con­sid­er­a­tions as well as codes of con­duct and gift/ameni­ties pro­to­cols. Add in reg­u­la­tions re­lat­ing to anti-dump­ing to this plethora of com­pli­ance piv­ots and the knowl­edge curve re­quire­ment for lawyers leaps. Com­pli­ance re­quires a sound grasp of in-coun­try and in­ter­na­tional laws as well as com­pli­ance codes and reg­u­la­tions.

For South African and in­ter­na­tional com­pa­nies op­er­at­ing in Africa, in­ter­na­tion­al­i­sa­tion and an­ticor­rup­tion and an­tib­ribery com­pli­ance is se­ri­ous. It also means a greater knowl­edge of the US For­eign Cor­rupt Prac­tices Act of 1977, UK Bribery Act of 2010 and SA’s Preven­tion and Com­bat­ing of Cor­rupt Ac­tiv­i­ties Act of 2003, as well as a range of in­ter­na­tional and re­gional covenants and var­i­ous in-coun­try leg­is­la­tion.

With­out this grasp, lawyers and com­pli­ance and au­dit of­fi­cers will find the ter­rain and is­sues dif­fi­cult to iden­tify. Prac­ti­cal ethics, mean­ing the ap­pli­ca­tion of ethics and in-coun­try and in­ter­na­tional ter­rain es­tab­lish­ment, do not need to clash: com­pa­nies need to un­der­stand what ef­fec­tive re­fer­ral/ fa­cil­i­ta­tion is, why there are no carve­outs in the UK’s bribery act and what ex­actly is SA’s Preven­tion and Com­bat­ing of Cor­rupt Ac­tiv­i­ties Act. Tell your South African oper­a­tion per­son­nel out­side of SA about the lat­ter’s ex­tra­ju­di­cial out­reach.

To clar­ify: South African-based com­pa­nies and their branch of­fices in Africa (and any­where out­side SA’s borders) en­gag­ing in il­le­gal ac­tiv­i­ties and bribery to se­cure and fa­cil­i­tate trans­ac­tions and busi­ness will be held ac­count­able in SA for such trans­gres­sions. SA’s Preven­tion and Com­bat­ing of Cor­rupt Ac­tiv­i­ties Act also ap­plies to non-South Africans if they are found in SA. This means that if an ac­tion is

Com­pli­ance re­quires a sound grasp of in-coun­try and in­ter­na­tional laws as well as com­pli­ance codes and reg­u­la­tions

deemed to be crim­i­nal un­der the act and it oc­curs out­side SA, a South African court will have ju­ris­dic­tion even if the act does not con­sti­tute an of­fence in the for­eign coun­try.

Ef­fec­tive com­pli­ance sys­tems and skilled teams en­sure con­trols and ad­vo­cacy aware­ness for com­pany per­son­nel. Se­cure and con­fi­den­tial whistle­blower hot­lines also add value to an­ticor­rup­tion and an­tib­ribery ef­forts. Open­ness to com­pli­ance and ac­tive con­ver­sa­tions mean sim­ply that your com­pany per­son­nel will talk to your le­gal and com­pli­ance per­son­nel. This cre­ates a healthy di­a­logue and an op­por­tu­nity to ad­dress what com­pli­ance is and how it prac­ti­cally af­fects businesses and its en­force­ment.

Com­pli­ance is on the radar and ac­count­abil­ity is on the agenda. Com­pli­ance is law.

Pic­ture: THINKSTOCK

LONG REACH OF SOUTH AFRICAN COURTS If an ac­tion is deemed to be crim­i­nal un­der the act and it oc­curs out­side SA, a South African court will have ju­ris­dic­tion even if the act does not con­sti­tute an of­fence in the for­eign coun­try

Newspapers in English

Newspapers from South Africa

© PressReader. All rights reserved.