This study fully explores the concepts of corporate criminal liability and corporate murder in the three jurisdictions. It is observed that regardless of the basis on which each jurisdiction relies, there are several issues encountered when dealing with corporate criminal liability and corporate murder. The study is intended to be an in-depth investigation into the concepts of corporate crime and corporate murder and is intended to provide guidance for South Africa on how to effectively deal with the challenge of corporate crime, particularly negligent deaths caused by corporations or businesses. business activities.
VII A BRIEF SUMMARY OF THE RESEARCH / CHAPTER OVERVIEW 18. CHAPTER 2 THE RELEVANCE OF CORPORATE CRIMINAL LIABILITY. IV THE BASIS OF CORPORATE CRIMINAL LIABILITY 41. a) Categories of the types of offenses for which corporations can be held. The current regulation of corporate criminal liability in South Africa:. bb) The Constitutional Court and its antipathy towards the reverse onus 150. b) Corporate manslaughter in South Africa 163. i).
The current provision allows for the criminal liability of companies. even in circumstances where there is no civil liability 195. h). II HISTORICAL DEVELOPMENT OF CORPORATE CRIME. a) Recognition of companies as separate legal entities 204 (b).
CANADIAN LAW AND CORPORATE HOMICIDE
IV CURRENT REGULATIONS OF THE CORPORATION. i) Extension of criminal liability to entities other than corporations 389 (ii) Broadening the basis for corporate criminal liability 391 (iii) Impact of changes in attribution rules for crimes based on fault 395. v) Punishment of organizations that are condemned 400 V CRITICISMS / LACKS OF AMENDMENTS SUBMITTED. Any advantage realized by the organization as a result of the criminal offense 415 (ii) The degree of planning involved in the commission of the offense and. duration and complexity of the criminal offense 416. iii) If the organization has tried to hide its assets, or convert them, in order to show that it is unable to pay a fine or make restitution 416 (iv). Any regulatory penalty imposed on the organization or one of its representatives in relation to the conduct that forms the basis of. vii).
Any fines that the organization imposes on a representative because of them. role in the commission of the offense 418. ix).
A NEW LEGAL FRAMEWORK FOR CORPORATE
A separate offense of corporate manslaughter is necessary because an offense as serious as unlawfully causing the death of other persons cannot be adequately regulated by a provision which. 448 (b) Given the seriousness of wrongful deaths caused by corporations, . a separate legal framework requires the direct liability of a corporation as opposed to relying solely on a basis of liability that depends on. A separate legal framework of corporate manslaughter that will allow a defense and thus eliminate the possibility of a conviction even in.
A separate legal framework for corporate murder will lead to justice. because it does not allow the employee's fault to be attributed to the company, despite the fact that the employee or director has acted. beyond his or her control 452. e) Under a separate legal framework for corporate murder. A new separate legal framework for corporate murder will ensure that corporations are not criminally liable for acts of total crime. corporate murder in accordance with the decisions of the Constitutional Court. A discussion of the proposed offense 469. iii) Acting within the scope of employment or authority 470 (iv) Acting in the interests of the company or organization and the. company or organization that benefits or can benefit 471. vi).
Inclusion of organizations 472. vii) Liability can be established without invoking individual liability 473. viii). Inclusion of murder 474. dd) Corporate Capital punishment or compulsory dissolution of the company 481 (x) Inclusion of individual criminal liability in the proposed law.
INTRODUCTION
It is further suggested that this exercise may lead to a more effective use of the corporate criminal liability mechanisms. It is submitted that section 332 of the CPA presents challenges to the concepts of corporate criminal liability and corporate manslaughter in South Africa. 46. Is there a need for South Africa to reform section 332 of the CPA, the legal framework dealing with corporate criminal liability.
It is intended to provide a thorough examination of the concepts of both corporate criminal liability and corporate manslaughter. The thesis will be structured in such a way that it thoroughly describes the concept of criminal responsibility of companies in three legal systems. Show that although South Africa recognizes corporate criminal liability, section 332 of the CPA is inadequate and ineffective.
The provisions of section 332 of the CPA, which deal with the criminal liability of companies, will be fully analyzed. The historical development of corporate criminal liability is traced and section 332 of the CPA is fully examined.
THE RELEVANCE OF CORPORATE CRIMINAL LIABILITY AND CORPORATE HOMICIDE
Where corporate crimes are committed by such an association, corporate criminal liability is still applicable, but is directed against those individuals who control the association.57. In terms of nominalist theory, a corporation is viewed as a mere fiction consisting of a. 65 "Criminal liability of companies can therefore only be derived from the culpable conduct of individuals who are part of the corporate body".
It is an approach found in section 12 of the Australian Criminal Code Act 1995.79. 151 "...Is recourse to the Criminal Code the appropriate way to regulate these aspects of the conduct of organisations. In South Africa section 332 of the CPA allows prosecution of the company and also of the responsible person of the company.
It is a doctrine whereby the fault of the senior officers of a corporation is treated as the fault of the corporation. Thus, it is clear that the doctrine of identification is responsible for the conduct, mens rea and even negligence of the leading individuals of society. It is a federal law and one of its main features is the fact that it takes into account the conduct of "agents" of the company.
Reasons were advanced for reforming the law, especially in cases of murder. As the adequacy and effectiveness of a criminal sanction has a direct bearing on the question of whether corporate criminal liability is effective or not, it is suggested that it is essential that the issue of punishing corporations when dealing with corporate criminal liability is included. It involves a discussion of the reasons/theories of punishment and places it in the context of the punishment of corporations as opposed to natural persons.
What must be taken into account is the triad consisting of the crime, the perpetrator and the interests of society.” Individual deterrence as a theory refers to the deterrence of the specific perpetrator from committing more crimes.331 Terblanche states that the. Since it is not possible for a company to be locked up, due to its legal personality, the discussion of reform theory is not necessary for the purpose of punishing companies.
The discussion on the development of the concept of corporate criminal responsibility and the rationale behind the application of criminal law to corporations highlights the importance of ensuring that corporations are held properly accountable for their criminal activities. Corporate manslaughter in the three jurisdictions that will be the subject of the comparative study has also been briefly introduced.
SOUTH AFRICA AND CORPORATE HOMICIDE
An example would be holding a corporation liable for the manslaughter of another's employee in R v Bennett (note 32). In the discussion of the statutory regulations, the similarities and differences between the statutes will be highlighted. In South Africa both common law and statutory provisions have played a vital role in the development of the concept of corporate criminal liability.
This is due to the fact that the 'director or employee' was only tried on behalf of the company due to the lack of a physical existence of the company. The title of the new provision was “The prosecution of companies and members of associations”. In addition, section 384, as amended by section 117, contained clearer provisions for the criminal liability of the company.
The section also clearly provided for the personal criminal liability of the responsible director or officer of the corporation. Therefore, a director or officer was convicted for his/her involvement in the commission of the crime. 479 Because of the similarity between section 381 of the CPA 1955 (note 373) and the current legislation, a full discussion of each provision will be given below under section 332 of the CPA (note 16).
III THE MENS REA OF THE COMPANY AND THE BASIS OF LIABILITY (a) The mens rea of the company. As long as they were committed during the process of representing the interests of the company, they are attributed to the company.501. The employee's negligence was blamed on the company and the company was found guilty of culpable homicide.
The significance of the decision in S v Lark Clothing (Pty) Ltd lies in the fact that it emphasized the peremptory nature of the provision. In terms of this subsection, a director or employee of a corporation, as a "corporation officer"626, could be held jointly and severally liable with the corporation for the crimes committed. The defendant is a director or employee who is tried on behalf of the company.
It was argued that the accused had no knowledge of the commission of the fraud. It is submitted that the judgments in Coetzee provide a clearer understanding of the intended purpose of section 332(5). 705 "According to this Article 217(b)(ii) does not meet the criteria defined in Article 33(1) of the Constitution.
It is defined as "the illegal, negligent cause of another person's death". 768.
