A critical evaluation of section 332 of the Criminal Procedure Act 51 OF 1977

The general principle in criminal law is that a person is liable when committing a criminal offence. This may include an offence a person has facilitated or procured. Vicarious liability, a principle borrowed from civil law, is an exception to the general rule in that it allows for a person to be held liable for the criminal acts of another. Legal persons have no physical existence and do not have hands and brains like natural persons. A legal person acts through its directors, employees, members or representatives. The corporation, being distinct and separate from its agents, is held liable for the acts or omissions of its representatives. This liability exists even though the corporate body never acted. International recognition of corporate criminal liability can be based on vicarious liability, identification or aggregation. All these forms of liability are derived from the human actus and mens rea. The identification theory provides for the liability of the corporate body, when someone who is identified with it, acted during the course of his employment when committing the offence. Those acts are treated as the acts of the corporate body. The identification theory is normally applied where mens rea is a requirement of the offence. The Aggregation theory provides for criminal liability of the corporation based on the conduct of a group of members of the company taken collectively. This theory is applied effectively where it is difficult to prove that a single person within the company is responsible for the commission of the offence. In South Africa corporate criminal liability developed from vicarious liability. It is regulated by section 332(1) of the Criminal Procedure Act 51 of 1977. This liability is based on the special relationship between the director or servant and the corporate body. Corporations act through its agents. The agent can be a director, servant or a third person instructed by either of them. In terms of section 332(1) it is possible that the corporate body can be held liable even where the agent acted beyond the scope of his employment. The latter can be argued is an extension of vicarious liability. Vicarious liability, can be argued, is too broad, because the intention of the agent is imputed to the corporate body, without the enquiry of fault by the corporate body. This offends the general principles of substantive criminal law. Generally, liability in criminal law accrues to someone who committed the offence with the required state of mind. The constitutionality of section 332(1) Act 51 of 1977 is questioned. The question is asked whether it is desirable to punish a legal person for the behaviour of its representatives or employees. Criminal law purports to control the behaviour of individuals to be in line with the interest and values of society. There is doubt whether the same goal can be achieved with the prosecution of corporate bodies. Prosecution of corporate bodies results in stigma to the corporation, which results in suffering a loss of reputation. Some authors argue that civil remedies can control the activities of corporate bodies more effectively. This argument, however, fails to address the issue that criminal law concerns the harm inflicted by human beings, hence the need to regulate human conduct. Corporate criminal liability attempts to address the harm inflicted by corporate bodies. It regulates pollution, health, safety and business. This liability is firmly established around the world but requires further development and modern refinement in South Africa.Abstrac