Abstract
Corporate criminal liability in South Africa is a problematic concept as it is based on an exceptional principle, namely vicarious liability, which forces the courts to hold a corporation liable for criminal acts of its employees, whether there was any intention on the part of the corporation or not, whether it had knowledge of the act or could have prevented the commission of the criminal act, as long as the act was committed during the performance of the employee’s duties. This leads to liability being imputed on the corporation without fault on its part.
This research paper seeks to analyse section 332 of the Companies Act which regulates corporate criminal liability with regard to its constitutionality. An analysis is conducted on whether section 332 is inconsistent with provisions of the South African Constitution of 1996 and how it affects the rights in the Bill of Rights. The research methodology approaches the issue from a constitutional perspective, analysing the statutory provision with relation to the constitutional rights.
It is submitted that the provisions of section 332 infringe certain rights in the Constitution such as the right to a fair trial, the right to presumption of innocence and other rights and that the violation is unjustifiable according to the limitation clause, which provides for limitation of rights. As a result, these provisions are inconsistent with the Constitution and results in the provisions being declared unconstitutional and invalid. Accordingly, this calls for law reform, which may include reconstructing the wording of the section in order to remove the inconsistent provisions or amending the law regarding criminal corporate law as a whole by considering aspects such as the due diligence, defence and organisational approaches.