A comparative study of corporate criminal liability : advancing an argument for the reform of corporate criminal liability in South Africa, by introducing a new offence of corporate homicide.
Farisani, Dorothy Mmakgwale.
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With corporations playing a prominent role in economies worldwide, economic activities sometimes result in the negligent deaths of people. Corporate criminal liability is a concept that is accepted in many countries including South Africa. In South Africa it is currently regulated by section 332 of the Criminal Procedure Act 51 of 1977. Despite the fact that corporations are juristic persons with no ability to think and act with intent, the concept of corporate criminal liability is in existence and several theories have been relied upon by various jurisdictions as their basis for corporate criminal liability. Two of these theories are ‘vicarious liability’ which result in the corporation being held vicariously liable for crimes committed by its officers and the ‘identification theory’ which result in the corporation being held personally liable for crimes committed by its officers. (A Pinto & M Evans Corporate Criminal Liability 2nd ed (2008) 24). Developments during the past twenty five years have shown that these theories are fraught with problems and these have led to corporations escaping liability, especially where there has been negligent loss of lives. To overcome these problems, jurisdictions such as England and Canada have recently resorted to having legislation that deal specifically with corporations that have negligently caused deaths. (England’s Corporate Manslaughter and Corporate Homicide Act 2007 and Canada’s Bill C-45 which became law on March 31 2004 and is now section 217.1 of the Canadian Criminal Code). In South Africa the rules governing corporate criminal liability include all crimes generally and there is a lack of successful prosecutions for deaths negligently caused by corporations. In this research the concepts of corporate criminal liability and corporate homicide in the three jurisdictions are fully examined. It is determined that regardless of the basis that each jurisdiction relies on, there are various problems that one encounters when dealing with corporate criminal liability and corporate homicide. Problems experienced by these countries will be fully discussed and these will include accounts of situations that led directly to the acceptance of corporate criminal liability into their laws as well as the subsequent decision to treat corporate homicide as a separate offence. The research is intended to be a thorough examination of the concepts of corporate criminal liability and corporate homicide and it is aimed at serving as a guide to South Africa on how to deal effectively with the challenge of corporate crime, specifically negligent deaths caused by corporations or corporate activities.
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