White Collar Crime & Fraud

Directors at Nortons Inc., drawing on their extensive knowledge of local and foreign anti-corruption legislation, advise clients across a spectrum of industries ranging from mining, financial services and general industrial products and services. In view of the fact that damages flowing from fraud and corruption is often not adequately addressed by legislation and law enforcement, Nortons Inc. has, in partnership with specialist security and technology service providers, developed and implemented novel techniques based on international best practice to mitigate losses, limit the dissemination of sensitive information and protect intangible assets.

FraudnetNortons Inc. is also the sole South African member of the International Chamber of Commerce’s Fraudnet which is the leading global independent network of international lawyers specialising in fraud, white collar crime and asset recovery.

Anti-corruption laws that we advise on to ensure local and international compliance include:

  • Prevention and Combating of Corrupt Activities Act of South Africa (“PCCAA“);
  • Bribery Act of the United Kingdom (“UK Bribery Act“);
  • Foreign Corrupt Practices Act (“FCPA“) of the United States of America;
  • Botswana: Corruption and Economic Crime Act of 1994;
  • Kenya: Anti-Corruption and Economic Crimes Act of 2003;
  • Namibia: Anti-Corruption Act of 2003;
  • Mauritius: The Prevention of Corruption Act 2002;
  • Tanzania: Prevention and Combating of Corruption Act of 2007; and
  • Zambia: Anti-Corruption Commission Act.

Foreign legalisation which could be applicable to local firms:

FCPA:

  • All US companies.
  • US nationals.
  • Non-US companies and nationals who conduct business in the United States.
  • South African companies listed on a United States stock exchange.

UK Bribery Act:

  • Individuals that are ordinarily resident in the UK but is not limited to nationality.
  • It applies to a business that carries on a business in the UK.
  • Offences committed in the UK.
  • Offences committed outside the UK where the person committing them has a close connection with the UK by virtue of being a British national or ordinarily resident in the UK, or a body incorporated in the UK.
  • Therefore, provided the organisation is incorporated or formed in the UK or that the organisation carries on a business or part of a business in the UK (wherever in the world it may be incorporated or formed) then UK courts will have jurisdiction.

In short, the UK Bribery Act creates offences of offering or receiving bribes, bribery of foreign public officials and of failure to prevent persons associated with the firm paying a bribe on the organisation’s behalf.

Africa:

It is also important to be aware of the fact that the Southern African Development Community (“SADC“), of which Angola, Botswana, Republic of Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe are members, have also adopted a Protocol Against Corruption.

Preventative measures:

The FCPA requires publicly held US companies and foreign companies listed on US stock exchanges to establish controls so bribes cannot be concealed or disguised.

The UK Bribery Act goes even further than its US counterpart in providing for a full defence for an organisation to demonstrate that despite a particular case of bribery, it nevertheless had adequate procedures in place to prevent persons associated with it from bribing. However, it is also a double edge sword in that it is also an offence for not having adequate procedures in place in preventing persons associated with the firm paying a bribe on the organisation’s behalf.

Regulation 43 of the new South African Companies Act requires companies to establish a social and ethics committee which will implement the Organisation for Economic Co-operation and Development’s (“OECD’s”) guidelines on preventing corruption, which include standards of conduct among public officials.

Compliance programmes:

Nortons Inc. has been involved in some of the most significant recent white collar crime and corruption matters. In addition to advising our clients on the ramifications of the applicable legislation, Nortons Inc. also conducts regular reviews of clients’ white collar crime compliance programmes.

Nortons Inc. team has revised their clients’ compliance programmes by:

  • identifying and addressing new risks;
  • ensuring that compliance programmes are regularly updated and remain effective;
  • ensuring client’s programmes comply with local and international best practice;
  • analysing corruption risks to the applicable client;
  • assigning responsibility of compliance to a high level compliance officer;
  • conducting due diligence of third parties;
  • training of employees and third parties;
  • assessing contractual provisions for anti-corruption compliance;
  • advising on internal procedures regarding hospitality, gifts, travel, and political contributions;
  • assessing the internal reporting of violation systems;
  • assessing the client’s internal disciplinary measures for misconduct; and
  • conducting internal audits.

Forensic auditing:

Nortons Inc. is able to provide clients with a full forensic accounting investigative service through our combination of legal and accounting specialists. This incorporates distinct sets of expert skill focusing on accounting and auditing knowledge and application, legal and investigative skills.

Nortons Inc.’s forensic auditing services include:

  • examination of financial documents;
  • review of financial statements;
  • analysis of financial data;
  • investigation of transactions and cash flow movements; and
  • inspection of ledger transactions.