Abstract
Abstract : In March 1997, the Constitutional Court found section 332(5) of the Criminal Procedure Act 51 of 1977 (hereinafter referred to as “the Criminal Procedure Act”) to be contrary to the Constitution of the Republic of South Africa Act 200 of 1993 (“the interim Constitution”) and as a result, declared the impugned provision unlawful. The March announcement was foreshadowed by the constitutional dispensation which had the effect of eradicating parliamentary sovereignty from our legal system thus making all laws subject to judicial review.1 Following this decision, the legal fraternity anticipated reform in the regulation of corporate crimes in South Africa and in particular, the amendment of section 332 of the Criminal Procedure Act. However, to our dismay, even twenty years after this revolutionary decision, the sections which have been declared invalid can still be found unchanged in their format. No amendments or rectifications have since been made and as it stands, corporate criminal liability in South Africa is governed by a statutory provision whose constitutionality has been successfully challenged. In a move for transformation, the legal fraternity has on a number of occasions called for the review of section 332 of the Criminal Procedure Act in its entirety as the decision in S v Coetzee2 had the effect of opening up and further exposing all the flaws, risks and legal gaps within section 332 of the Criminal Procedure Act, which to date have not been addressed.
LL.M. (Commercial Law)