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n Acta Juridica - New perspectives on the criminal liability of corporate bodies : general principles of criminal liability and specific offences
The capacity of corporate bodies for criminal liability is an area of law which has received very little attention in South African law. The traditional premise of criminal law is that only a natural person is capable of performing an unlawful act with a blameworthy state of mind. Corporate bodies are accordingly held accountable for crimes on a derivative basis in South African law. Broadly speaking, this means that the state has to prove that an agent or servant of the corporate body, acting within the scope of his or her employment or authority or while furthering the interests of the corporate body, committed a crime. The unlawful act and culpability of the individual servant or agent are then imputed to the corporate body. Although broader in scope, this type of liability developed from the doctrine of vicarious liability, traditionally applied in the field of delict.
During the last few decades, derivative bases of corporate criminal liability have been questioned by legal writers in a number of common-law jurisdictions. Various proposals for reform have emerged, the most innovative of which is a rejection of derivative liability in favour of a model envisaging direct corporate liability. More cautious proposals concern the creation of specific corporate offences involving negligence.
This chapter examines new models of corporate criminal liability which emerged during the last decade in jurisdictions such as the United Kingdom and Australia. Similar developments on the European continent, for instance in Belgium, and also in the broader European Union are discussed. The comparative study reveals that the international trend is towards imposing criminal liability on juristic persons increasingly independent of proof of misconduct of a particular individual. The conclusion reached is that the criminal liability of juristic persons in South African law is not only out of touch with developments elsewhere, but may be found to be inconsistent with the South African Constitution. The chapter proposes legislative reform in this field so as to respect constitutional values.
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