A critical analysis of the liability imposed on South African companies for the cartel offence of tender collusion and the offending company's rights to hold is directors personally accountable.
Corporate crime is an area of criminal law that has swiftly gained momentum in South Africa, more specifically the cartel offence of tender collusion, particularly among the larger corporations within the construction industry. It is often debated as to whether it is more desirable to punish the company or the individual responsible for engaging in prohibited practices as a company’s thinking and acting is done by its directors and employees. In recent years it has become widely accepted that it is insufficient to only punish the corporate body that is guilty of committing a corporate crime and not the individuals within the corporate bodies who actually commit the crime. Hence, the introduction of a provision dealing with criminal liability within the Competition Amendment Act 1 of 2009 appears to be an ideal mechanism to safeguard companies and manage cartel activities. Whether such prosecutions are suitable under the umbrella of criminal law, competition law or company law remains a contentious point and one that this dissertation seeks to evaluate. It would appear that the statutes governing this area of law, in their current form, present practical concerns which would need to be remedied in order to provide an effective solution to the problem of cartel conduct. This dissertation seeks to critically analyse the liability imposed on South African companies for the cartel offence of tender collusion and the offending company’s rights to hold its directors personally, criminally and civilly accountable with reference to specific statutory provisions. It will evaluate circumstances under which an interested party may recover damages or recoup losses suffered by the company, in the form of substantial fines paid, from executives/directors or former executives/directors, in situations where a company is fined or could potentially be fined for its involvement in tender collusion. It will enlighten directors who wish to engage in cartel conduct, of the consequences of their actions and alert offending companies of the action that could be taken against such directors in terms of the law.