Criminal liability of corporations Flashcards
What does s332(1) of the CPA do?
Rests the liability of the corporation upon the imputation to it of the crimes of persons acting on instructions of a director or employee of the corporate body, in the exercise of the director or employee’s powers, in the performance of the director’s or employee’s duties or in furthering or endeavouring to further the interests’ of the corporate body by an act or omission.
Is there a defence to the liability of the corporation?
Does the corporation need to be at fault to be held liable? Whilst it would help to have policies in place to combat criminal liability, these policies must actually be adhered to in practice. It will not help that a company has performed due diligence. It may be relevant in determining collective intention or mitigating sentence.
Why was s332(5) struck down as unconstitutional?
Directors could be held liable for the crimes of other directors, unless they could prove that they did not take part in the other’s crime [s332(5)]. This provision was struck down as unconstitutional by the CC in Coetzee, because the reverse onus provision offended the presumption of innocence, and could not be saved by the limitations clause.
What is the position of unincorporated association under s332(7) of the CPA?
Liability of clubs or associations is possible [s332(7)]. A member of an association will be found guilty unless it is proved both that they took no part in the commission of the offence and also that they could not have prevented it. This defence is most likely unconstitutional as well, but it is yet to be challenged. Also, a member also has the protection of the proviso, which says that only the governing body of the association will be held liable.
What sentences may be imposed on corporations?
The only penalty for corporate criminal liability is a fine. However, there is nothing preventing a court from imposing a different sentencing option, so long as it is not exclusively prescribed by statute, or it is unconstitutional. Such sentences include a public statement of wrongdoing, corporate probation or restraint on trading etc.
How can corporations minimise the likelihood of liability under the CPA?
1) tell people the law and hold training sessions to explain it
2) involve directors in all important decisions
3) have zero tolerance policy for unlawfulness
