In depth

As South Africa becomes increasingly integrated into the global economy, its legal and regulatory frameworks are being tested by a surge in cross-border investigations. From multinational corruption probes to international data privacy breaches, compliance and investigations lawyers in South Africa are navigating a complex web of jurisdictions, legal standards, and enforcement expectations in order to advise clients appropriately and pragmatically. Navigating this landscape requires not just technical expertise but an acute understanding of both domestic and cross-jurisdictional challenges.

The cross-border challenge

Cross-border investigations typically arise when alleged misconduct spans multiple countries – whether through multinational corporations, international financial transactions or foreign regulatory scrutiny. These investigations are often triggered by: 

• Whistle-blower reports. 
• Compliance breaches. 
• Foreign bribery and corruption allegations. 
• Money laundering and terrorist financing concerns. 
• Data breaches involving international data transfers. 
• Sanctions violations and export control breaches.

Cross-border investigations present unique challenges for South African lawyers, regulators and enforcement agencies alike. These challenges include jurisdictional overlap between multiple authorities – both domestic and foreign; navigating local and foreign compliance regimes and data protection laws, particularly when handling evidence or conducting interviews abroad; varying rules on admissibility of evidence and legal privilege; and divergent cultural and legal expectations around cooperation, transparency and negotiation.

International cooperation – the current lay-of-the-land through a South African lens

South Africa's grey-listing by the Financial Action Task Force (FATF) in 2023 intensified scrutiny on the country's anti-money laundering (AML) and counter-terrorist financing (CTF) frameworks, prompting more aggressive enforcement and cooperation with foreign regulators. 

The Zondo Commission into state capture revealed the extent of international financial flows and foreign actors involved in South African corruption. Since then, authorities have increasingly collaborated with foreign counterparts – in particular the US Department of Justice (DOJ) - to conduct investigations, trace assets, extradite suspects and prosecute transnational crimes. 

A growing trend for authorities to engage with international counterparts is also evident from recent deferred prosecution agreements involving multinational corporations, previously unheard of in South Africa.

Then, on 12 February 2025, the US administration issued an executive order temporarily pausing enforcement of the Foreign Corrupt Practices Act (FCPA) for 180 days. The directive affects new investigations and enforcement actions by the DOJ, while existing cases are subject to internal review. The move by the US administration has been widely interpreted as signalling reduced enforcement pressure, resulting in joint investigations with South African authorities being delayed and/or deprioritised and forcing South African authorities to take a more active role in investigating foreign bribery and corruption with already significantly strained resources.

The lay of the corporate crime investigation landscape in South Africa includes the South African Police Services (within which the Directorate of Priority Crime Investigation, or the 'Hawks', responsible for investing organised crime and corruption is located); the Commercial Crimes Unit and the Investigating Directorate Against Corruption within the National Prosecuting Authority; and the Special Investigating Unit, tasked with investigating corruption and maladministration related to South African government institutions. All three investigating bodies have reported severe budgetary constraints, including funding cuts and unfunded mandates. 

The changing of the guard

The pause in enforcement of the FCPA might be interpreted as a relaxation of anti-bribery standards, even if temporarily. However, it is important to bear in mind that the US Securities and Exchange Commission (SEC) continues to enforce civil FCPA provisions, especially around accounting and internal controls.

A shift in the global enforcement landscape may see jurisdictions such as the EU and the UK stepping up enforcement efforts. Companies operating in South Africa would do well to prepare for increased scrutiny from non-US regulators, including regulators and enforcement agencies in South Africa.

South Africa has adopted various initiatives to cooperate with foreign countries. These include the Mutual Legal Assistance in Criminal Matters Treaty with Algeria, Argentina, Canada, China, Egypt, France, India, Lesotho, Nigeria and the US. South Africa also has in place agreements with the European Community Member States, and conventions and protocols on extradition and prevention of transnational organized crime with the Council of Europe, the United Nations and the Southern African Development Community (SADC).

In addition, South Africa's Department of Justice and Constitutional Development has recently announced proposed reforms to the country's cross-border criminal law regime by way of the Co-operation in Criminal Matters Amendment Bill. The Bill introduces the use of technology like video conferencing to gather evidence across borders, in line with similar laws in more developed countries. More crucially, the Bill seeks to allow legal cooperation not only with states, which is currently the case, but also with international organisations like the International Criminal Court and war crimes tribunals. The announcement indicates a necessary awareness within government of South Africa's need to cooperate widely with foreign states and law enforcement organisations.

Significantly, we have also seen a marked increase in oversight and enforcement activity from South African regulators post grey-listing. These include the South African Reserve Bank, which doubles up as the prudential authority and monetary systems regulator, the Financial Intelligence Centre, the Competition Commission and the Independent Regulatory Board for Auditors. Whilst 'dawn raids' have traditionally been carried out by the Competition Commission, all of these regulators are bestowed with search and seizure powers - some fairly recently - and certain of them have signalled a willingness (perhaps eagerness?) to test their new-found investigation capabilities. 

South Africa's regulators' stepping up to the grey-listing challenge has in fact been central to the impressive pace at which the 22 remediation areas identified by FATF when South Africa was grey-listed have been addressed. FATF inspectors are scheduled to arrive in South Africa at the end of July 2025 to verify progress made in strengthening the country's AML and CTF systems. The visit is the final requirement before the FATF decides at its October plenary whether South Africa can be removed from the grey-list.

We would be remiss to not also give a nod to South Africa's very active civil society and investigative media. Many high-profile investigations in South Africa have resulted from pressure being brought to bear on government and enforcement authorities by civil society and our media alike.

What now? Survival tips

Navigating the increasingly complex shifting sands of multinational compliance requirements and cross-border investigations means mastering a dynamic legal and regulatory landscape that spans continents and cultures. The stakes are high, but so too is the opportunity to shape a more transparent and accountable global business environment. Now is not the time to take one's proverbial foot off the compliance gas!

To mitigate risk and maintain compliance integrity, we advise the following:

• Prioritising development and maintenance of effective compliance structures and anti-bribery and corruption policies and procedures, and staff training on the relevant structures and policies.
• Implementation and internal training on ethics hotlines or other effective whistleblowing channels.
• Active and visible protection of whistleblowers.
• Continued adherence to FCPA standards where applicable, notwithstanding the pause in enforcement.
• Regular review and reinforcement of internal anti-bribery policies, particularly in high-risk jurisdictions.
• Development of internal investigation policies and procedures, where appropriate. 
• Engaging with legal counsel to assess exposure in ongoing or potential cross-border investigations.
• Partnering with external legal counsel with the expertise, experience and global reach appropriate for the size, global footprint and risk profile of the entity concerned.