The effectiveness of the approaches to corporate criminal liability : a comparative study between South Africa and Australia

Abstract : Given the daily revelations of corporate transgressions, it is important for corporate criminal liability approaches to effectively deter corporate entities from transgressing even further. Approaches put in place by countries need to adequately address corporate criminality. In particular, the two main models of corporate criminal liability can be described as the derivative/nominalist on the one hand, and realist/organisational on the other. The former views a corporation as a collection of individuals; thus; liability is derived to human actors. This is encompassed by the concept of vicarious liability and the identification doctrine. By comparison, realists view a corporate entity as being able to act aside from and beyond its members. Accordingly, the South African law pertaining to corporate criminal liability is based on the nominalist model of vicarious liability, which imputes liability to the individuals that make up a company. Australia on the other hand supports the realist view and it is guided by the “corporate culture provision” which entails that the creation of a certain culture is relevant in determining whether that entity has committed a fault offence or is liable for an omission. The regulatory options available to the South African and Australian criminal justice systems, their effectiveness and implications are key questions addressed in this dissertation. Specific emphasis is placed on how effective are the two approaches in dealing with corporate criminal liability.LL.M. (Corporate Law