ISS Analysis

Complex corruption and corporate crime cases are often difficult and expensive to prosecute. Evidence may span numerous transactions, corporate entities and jurisdictions, while the state may depend on information held by the very companies under investigation.

Conventional prosecution also creates an all-or-nothing problem. A failed prosecution may produce no meaningful corporate consequence after years of investigation and litigation, while a conviction can have collateral consequences for employees, shareholders and legitimate business activity that extend beyond those responsible for the wrongdoing.

Non-trial resolutions seek to create another enforcement option. In exchange for avoiding or deferring conventional prosecution, a company could be required to accept responsibility, cooperate with investigations, disclose evidence, pay substantial penalties, compensate losses and reform its compliance systems.

The mechanism is particularly significant following the State Capture Commission, which specifically recommended legislation allowing deferred prosecution agreements for accused corporations.

Discussion Paper 165 proposes consideration of statutory deferred prosecution and non-prosecution mechanisms for corruption and related offences. Under the proposed model, an implicated party could enter into an agreement with the prosecuting authority subject to conditions.

Depending on the circumstances, these could include accepting responsibility, paying a financial penalty, restitution or compensation, cooperating with investigations and prosecutions, improving anti-corruption controls and accepting a corporate monitor.

Court approval would be required. The court would consider whether the agreement is in the interests of justice and whether its penalty is proportionate. Once approved, the agreement and the court’s ruling and reasons would ordinarily be published. The SALRC also proposes that the NPA issue public guidance governing negotiation and use of these agreements.

The proposals are not yet law. Their final design may change through the SALRC process and any subsequent executive and parliamentary process.

• Lead law reform institution: South African Law Reform Commission.
• Responsible department: Department of Justice and Constitutional Development.
• Principal operational institution: National Prosecuting Authority.
• Judicial actor: Courts, which under the SALRC proposal would approve non-trial resolutions and assess whether their terms are in the interests of justice and proportionate.
• Corporate actors: Companies and other implicated parties potentially eligible for a non-trial resolution.
• Other stakeholders: Legal practitioners, business organisations, compliance professionals, civil society organisations, victims and public bodies affected by corruption.
• International actors: Foreign enforcement authorities may be relevant where corruption involves multinational companies or cross-border conduct.

• Moving from policy to statute: The NPA’s existing Corporate Alternative Dispute Resolution policy demonstrates that negotiated corporate resolutions can already occur in practice. The challenge is to determine which aspects of that experience should be incorporated into legislation and which additional safeguards are required when non-trial resolutions become a formal part of the criminal justice system.
• Legal certainty: A statutory framework would need to define the circumstances in which a non-trial resolution may be offered, the offences and persons to which it applies, permissible conditions, the consequences of breach and the relationship between negotiated resolutions and ordinary prosecution. Clear rules are particularly important where substantial prosecutorial discretion is involved.
• Judicial oversight: The SALRC proposes court approval as an important safeguard against inappropriate or excessively lenient agreements. The challenge will be to provide meaningful judicial scrutiny without effectively converting the approval process into another lengthy form of litigation.
• NPA capacity and independence: Negotiating major corporate resolutions requires specialist expertise in complex financial investigations, corporate structures, compliance systems, asset recovery and international cooperation. It also requires prosecutors capable of negotiating on relatively equal terms with well-resourced corporate defendants and their legal teams. Weak prosecutorial capacity could produce settlements that are expedient but insufficiently rigorous.
• Consistency and prosecutorial guidance: Decisions about whether to prosecute or negotiate a resolution can have major consequences for both accused entities and public confidence. Clear and publicly available NPA guidance will be needed to explain eligibility, cooperation credit, self-reporting, remediation, penalty calculations and other factors affecting prosecutorial decisions.
• Transparency and public accountability: Existing corporate resolutions have prompted debate about the degree of transparency surrounding negotiated outcomes. A statutory system should make clear what wrongdoing occurred, why a non-trial resolution was considered appropriate, what the implicated party admitted or accepted, and what consequences followed. The SALRC’s proposals for court approval and publication are therefore central to the legitimacy of the system.
• Individual accountability: Resolving the liability of a company must not become a substitute for pursuing directors, executives, employees, public officials or intermediaries responsible for criminal conduct. Corporate cooperation should, where possible, assist investigation and prosecution of culpable individuals rather than shield them.
• Penalty and remediation: Financial penalties must be proportionate to the seriousness of the wrongdoing and sufficiently substantial to deter misconduct. Agreements may also need to address restitution, disgorgement of benefits, compensation, compliance reform and monitoring rather than treating payment of a fine as sufficient accountability.
• Review and challenge: The appropriate mechanisms for reviewing or challenging non-trial resolutions will require careful design. Excessively broad opportunities for litigation could undermine the efficiency advantages of negotiated resolutions, while insufficient review could weaken accountability and public confidence. Civil society submissions have specifically raised the importance of retaining meaningful public interest scrutiny.
• Relationship with section 34A of PRECCA: The failure to prevent corruption offence and non-trial resolutions need to develop as parts of a coherent corporate enforcement framework. This includes clarity about adequate procedures, self-reporting, cooperation and remediation, and how these factors affect decisions to prosecute or negotiate a resolution.
• International coordination: Major corruption matters increasingly involve multinational companies and enforcement authorities in several jurisdictions. South Africa will need mechanisms for coordinating investigations and settlements, avoiding inappropriate duplication of penalties and ensuring that the country receives an appropriate share of financial recoveries arising from wrongdoing affecting South Africa.

• Whether the SALRC publishes a final report and draft legislative recommendations on non-trial resolutions.
• Whether the proposed framework retains mandatory court approval and publication.
• The eventual scope of offences and persons eligible for a non-trial resolution.
• The relationship between the framework and section 34A of PRECCA.
• Whether the NPA develops public guidance on eligibility, cooperation, penalties and adequate procedures.
• How the framework protects individual accountability where a company receives a negotiated resolution.
• Whether legislation is submitted to Cabinet and subsequently introduced in Parliament.
• Progress of the wider Project 151 review following the August 2026 publication of Discussion Papers 176–181.
• Whether consultation on the wider CPA review results in a consolidated new criminal procedure statute or a series of amendments to the existing CPA.

The non-trial resolution reform is conceptually well developed but remains some distance from implementation. Discussion Paper 165 contains a relatively detailed proposed framework, including eligibility principles, possible conditions, judicial oversight, publication and NPA guidance. The State Capture Commission recommendation and the NPA’s strategic recognition of deferred prosecution agreements give the reform additional institutional significance.

The wider Project 151 process has meanwhile accelerated substantially. The publication of numerous additional discussion papers during 2026 demonstrates that the review of the CPA has moved well beyond the initial pre-trial subjects considered in 2025. The latest papers were published only at the end of August 2026 and remain open for comment until 2 October.

That broader progress should not, however, be confused with legislative progress on non-trial resolutions themselves. No final SALRC report or bill establishing the proposed mechanism has been identified. The immediate question is therefore whether the Commission moves from consultation and discussion papers towards final recommendations capable of being translated into legislation.

If legislation follows, the decisive issue will be institutional credibility. Non-trial resolutions could give South Africa a valuable additional tool for complex corporate corruption cases, but only if they produce transparent and proportionate accountability, preserve the prosecution of culpable individuals and are administered by an NPA with the independence and specialist capacity required to negotiate with well-resourced corporate defendants.