POLICY BRIEF: The National Prosecuting Authority Directives for Corporate Alternative Dispute Resolution (CADRe) by Lukas Muntingh and Jean Redpath
In January 2024 the National Prosecuting Authority (NPA) announced that the German software company SAP would pay restitution of R2.2 billion to South Africa and that the funds would be disbursed to a number of state-owned entities.
This was in exchange for not being prosecuted for bribing South African officials to secure contracts. The agreement was made in terms of directives dated February 2024 and titled “Part 51: Corporate Alternative Dispute Resolution”. This was the first agreement under the directives and is thus worthy of closer examination.
This policy brief explores three broad issues:
- Was the agreement in line with the NPA’s Constitutional powers, mandate and the enabling legislation (i.e. the National Prosecuting Authority Act, Prevention of Organised Crime Act and Prevention and Combating of Corrupt Activities Act.
- What about the interests of third parties? Despite an agreement between the NPA and the offending corporate, another party with an interest in the matter may wish to institute a private prosecution, or opine that, for example, the alternative dispute resolution mechanism is not fair, or the agreement gives inadequate recognition to all the corporate’s wrongdoings, or it feels that the compensation was not sufficient.
- Corporate alternative dispute resolution appears to indicate a substantial shift in prosecution policy and it must therefore be asked if the current policy is sufficiently enabling?