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34. Possession of property etc. without reasonable explanation

(1) Subject to the provisions of subsection (2), a person who being or having been a public officer –

maintains a standard of living above that which is commensurate with the present or past official emoluments of that person; or,
is in control of pecuniary resources or property disproportionate to the present or past official emoluments of that person

shall be presumed to have committed an offence under section 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32 or 33 and accordingly liable to the penalty prescribed in section 35.

(2) The presumption referred to in subsection (1) shall not apply in a case where the public officer gives the Commissioner or investigating officer a satisfactory account or explanation of how the officer maintains that standard of living and how the pecuniary resources or property came under the control of that officer.

(3) Where the Commissioner has reasonable ground to suspect that any person who has no known source of income or who is not known to be engaged in any gainful employment possesses or is in control of any property or pecuniary resources, the Commissioner shall request that person to give [a] satisfactory explanation in writing as to how the property or pecuniary resources have been acquired by or come under the control of that person.

(4) Where the person mentioned in subsection (3) is unable to give any satisfactory account or explanation that person shall be presumed to have committed an offence and liable on conviction to the penalty prescribed in section 35(1).

(5) Where a court is satisfied in the proceedings for an offence under subsection (1) or (4) that there is reason to believe that a person was holding pecuniary resources or property in trust or otherwise on behalf of the accused, or acquired those resources or that property as a gift or a loan without adequate consideration, from the accused, having regard to the relationship of that person to the accused, those resources or that property shall be presumed to have been in the control or in the possession of the accused.

(6) In this section “official emoluments” includes a pension or gratuity or any other retirement benefit payable under any law for the time being in force or under any terms and conditions of service or employment applicable to the public officer.

35. Penalties

(1) A person who is convicted of an offence referred to in section 21,22, 23, 24, 25, 26, 27 or 34 shall be liable to a fine not exceeding one hundred thousand Emalangeni or imprisonment not exceeding ten years or to both.


36. Additional Penalty

(1) Where a person is convicted of an offence under this Part, the court shall in addition to any penalty it may impose under section 35 order the person convicted to pay to the rightful owner the amount or value, as determined by the court, of any advantage actually received by that person.

(2) Where after reasonable inquiry, the rightful owner cannot be ascertained or traced or is implicated in the commission of that particular offence under this Part, the court shall order that the amount or value of that advantage be forfeited to the Government.

(3) In addition to the fine a court may impose in terms of section 35, the court may impose a fine equal to five times the value of the advantage involved in the offence.

37. Dismissal on Conviction

The conviction of a judicial officer or other public officer for an offence under this Part, shall, subject to any other law, warrant the dismissal from office of that judicial or public officer.


Type: Criminal Illicit Enrichment Laws

Last update on LEARN: Thursday, 3 March 2022, 1:00 PM