Corporate Criminal Liability in South Africa

Abstract

Corporate criminal liability is a problematic concept, especially where it is based on an exceptionable principle such as vicarious liability. This is the case with the South African model. This article seeks to demonstrate that this model requires substantial modification because it compels the court to adopt the incoherent exercise of holding a corporation (which is a distinct person) liable for the intentional act (crime) of any of its agents, whether or not there is criminal intention on the corporation's part and whether or not it was aware of, or could have prevented the commission of the offence. It is submitted that it is more appropriate to hold a corporation liable only where it has been established that the course of conduct that resulted in the offence was encouraged or tolerated by persons who embody the corporation (usually sufficiently empowered managers or members of the board of directors).