Corporate accountability in South Africa: Sharpening the role of criminal law
Jurisdiction | South Africa |
Pages | 225-246 |
Published date | 24 May 2019 |
Citation | (2016) 29 SACJ 225 |
Date | 24 May 2019 |
Author | John Paul Ongeso |
Corporate accountability in South
Africa: Sharpening the role
of criminal law
JOHN PAUL ONGESO*
ABSTRACT
South Africa’s Crim inal Procedure Act 51 of 1977 adopts a derivative model
of establishing corp orate liability. This ar ticle argues that th is model has a
number of limitat ions that render it ineffective for corp orate accountability
for serious human rights violat ions and crimes. It considers an a lternative
model of non-derivative cri minal liability and discu sses how this may apply
to the South Afric an context through its inclusion in the Act. T his article also
draws from legislative schemes in t he United Kingdom and Austr alia that
have incorporated non-der ivative models for corporate crim inal liabilit y.
1 Introduction
South Africa has a n elaborate regime for the criminal l iability of
corporations in relation to occupational health and sa fety, antitrust,
environment, corruption and briber y.1 Despite this, there is increasing
awareness of the need to reconsider the role of criminal l aw with
respect to corporate accountability for two mai n reasons.2 First, over the
last few decades the nature of corporations ha s evolved signicantly,
* LLB (cum laude) LLM PhD (Wits), Post-doctor al Research Fellow at the South Af rican
Institute for Advanced C onstitutional , Public, Human Right s and Internationa l Law
(SAIFAC), University of Johannesburg, Sout h Africa. I am g rateful to Prof David
Bilchitz and Ra isa Cachalia for thei r comments which have helped to i mprove this
article. Tha nks also to Prof Flor ian Wettstein and Dr D orothée Baumann -Pauly for
inviting me to present a n earlier version of this paper in March 2 016 in an intensive
two-day rese archer’s summit on Bu siness and Human R ights at the Instit ute of
Business Ethic s, University of St Gal len, Switzerland.
1 Examples include: s 73A of the Competition A mendment Act 89 of 1998 (price -
xing, market div ision or collusive tendering, i n force on 1 May 2016); s 20 of
the Environment Co nservation Act 73 of 1989 (operati ng a waste disposal site
without a permit); s 24 of the N ational Environmental Managemen t Act 107 of 1998
(commencement of a propert y development without an environ mental authorisat ion);
s 24 of the Occupational He alth and Safety Act 85 of 1993 (injuries in the workplace
including culpable hom icide) and s 3 of the Prevention and Combati ng of Corrupt
Activities Act 12 of 20 04.
2 As can be gleaned from the title, c riminal law do es play a role in enhanci ng
corporate accountabi lity in South Africa. W hat this article contends is that t his role
can and should be rein forced in view of the dyn amic structure of corporat ions.
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(2016) 29 SACJ 225
© Juta and Company (Pty) Ltd
adopting increasingly complex and diffuse orga nisational struct ures.3
This challenges the trad itional models that have been used to hold them
accountable.4 Globally, there has thus been greater focus on improving
these models to suit the struct ure of corporations.5 Second, there is
recognition that there is a close connection bet ween the regulation of
corporations and the protection of human r ights.6 Where there is little
or no regulation – often due to the lack of resources or will on the
part of the state – there is a gr eater propensity for corporate human
rights violations and crime.7 The more adapted models for liability
are to complex corporate structures, t he greater their effectiveness in
holding corporations accou ntable.
This article cr itically analyses the cur rent model for establishing
corporate crimin al liability in South A frica’s Criminal Procedure Ac t.8
It argues that its focus on the conduct of individual employees is
not particularly usef ul and nor is it effective in holding corporations
accountable.9 It suggests an alternative model that can accommodate
organisation al fault.10 Though this ar ticle discusses the establish ment
of corporate liability for cri mes and not liability for human rights
violations, there is a clear connection between the t wo.11 Though the
latter are not always crimes, certa in human rights violations merit
the application of criminal law due to their eg regious nature. In such
3 J Gobert ‘Corporate crim inality: Four models of fault’ (1994) 14 Legal Studies 393 at
395.
4 See Allens Arthur Robi nson ‘Corporate culture’ a s a basis for the criminal liability
of corporations (Report prepa red for the United Nations Spec ial Representative
of the Secretar y-General on Hu man Rights and Busi ness, 2008) at 1, available at
https://business-humanrights.org/sites/default/les/reports-and-materials/Allens-
Arthur-Robinson-Corporate -Culture-paper-for-Rug gie-Feb-2008.pdf, accessed on
26 July 2016.
5 Allens Report op cit (n4) part 1.
6 See A Nolan ‘Addressing economic and social right s violations by non-st ate actors
through the role of t he state: A comparison of regional appr oaches to the “Obligation
to Protect’’ (2009) 9 Human Rights L Re v 225.
7 S Ratner ‘Corporations and huma n rights: A theory of leg al responsibilit y’ (2002)
111 Yal e L J 443 at 461.
8 Act 51 of 1977.
9 L Jordaan ‘New perspectives on the cr iminal liability of cor porate bodies’ (2003) 16
Acta Juridica: Crimin al Justice in a New Society: Essays in Honour of S olly Leeman
48 at 66–7; J Burchell Prin ciples of Criminal Law 3ed (2005) 5 65.
10 See L Boonzaier ‘ State liabilit y in South Afr ica: A more direct approach’ (2013) 130
SALJ 330 at 361 where the author p oints to the fact that ‘acade mics have agitated
increasingly for a model o f corporate crim inal liabili ty that can accommo date
organisationa l fault’.
11 See A Ramasa stry & RC Thompson C ommerce, Crime and Conict: Legal Rem edies
for Private Sector Lia bility for Grave Breache s of International L aw: A Survey
of Sixteen Countr ies (2006) 9-11, available at http://www.fafo.no/index.php/en/
publications/fafo-reports/item/commerce-crime -and-conict, accessed on 26 July
2016.
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