Corporate Criminal Liability in Environmental Protection: Options for Malawi

JurisdictionSouth Africa
Pages344-364
Published date25 May 2019
Date25 May 2019
AuthorJustin Kalima
Citation(2009) 21 SA Merc LJ 344
Corporate Criminal Liability in Environmental
Protection: Options for Malawi
JUSTIN KALIMA*
Webber Wentzel Attorneys
Johannesburg
1 Introduction
Much has been written about the role and impact of corporations and
bodies corporate in the environmental sphere. Attempts have long been made
to f‌ix them with environmental liability for their actions, because, among
other things, they contribute greatly to environmental degradation, handle the
most dangerous types of pollutants,
1
cause environmental degradation that is
relatively concentrated and extensive compared to the activities of individu-
als, and have considerable resources with which to reduce pollution.
2
Environmental liability is generally of two kinds: civil and criminal. Here I
shall concentrate on corporate criminal liability
3
in the environmental sphere,
with specif‌ic reference to Malawi.
By way of background, it may be explained that English law, when it was
received in Malawi on 11 August 1902, had not yet developed the modern
concept of corporate criminal liability, but the foundation had been laid.
Corporations could be prosecuted for nonfeasance resulting in a nuisance,
more specif‌ically for failing to perform duties under charter, prescription or
statute when such failure resulted in a public nuisance. Corporations could
also be held criminally liable for misfeasance in cases of public nuisance. And
they could be convicted of minor crimes of strict liability and crimes to which
vicarious liability was recognised as applying, regardless of whether mens rea
was required. But criminal liability did not extend to truly criminal crimes
* LLB (Unisa) LLB (Hons) (Malawi) LLM (Natal) PhD (KwaZulu-Natal). Environmental Law
Consultant, Webber Wentzel Attorneys, Johannesburg. E-mail: jkalima@gmail.com.
1
Individuals rarely have the resources or the need to handle heavy metals, radioactive waste or
chemical residues.
2
Diane Saxe Environmental Offences: Corporate Responsibility and Executive Liability (1990) at 21,
quoted in Michael AKidd ‘The Protection of the Environment through the Use of Criminal Sanctions: A
Comparative Analysis with Specif‌ic Reference to South Africa’(unpublished PhD thesis, University of
Natal (2002)) at 350.
3
In general there are two facets of corporate criminal liability: the f‌irst deals with the liability of the
corporation as an artif‌icial personality (hence referred to as ‘corporate criminal liability’ for lack of a
different and better term), and the second deals with the liability of natural persons who run the
activities of the corporation (hence referred to as ‘individual criminal liability’). It has been objected
that there is no need for this duality and that individual criminal liability is capable of doing the work of
corporate criminal liability.This objection has been found wanting. It has been suggested (correctly, it is
submitted) that there are at least nine justif‌ications or reasons for the coexistence of corporate and
individual criminal liability, which include the fact that where individual criminal liability is blocked by
organisational secrecy, corporate criminal liability becomes a viable option (see Brent Fisse ‘The
Duality of Corporate and Individual Criminal Liability’ in: Ellen Hochstedler (ed) Corporations as
Criminals (1984) at 69 ff). See also Brent Fisse & John Braithwaite ‘Corporate Offences:The Kepone
Affair’ in: RaeWeston (ed) Combating Commercial Crime (1987) 31 at 31-2.
344
(2009) 21 SA Merc LJ 344
© Juta and Company (Pty) Ltd
requiring mens rea.
4
Although Malawi was free to develop its own unique and
comprehensive theory or basis for corporate criminal liability, it did not do so
but slowly followed developments in English law.
5
The Malawian develop-
ments are set out below after a survey of corporate criminal liability in
English law. Thereafter the new concepts of corporate criminal liability will
be outlined and, with a comparative-law discussion, suggestions will be made
on reforming corporate criminal liability in environmental matters in Malawi.
2 The Position under English Law
The criminal liability of a corporation as an entity with artif‌icial personality
may be considered at two levels: offences requiring strict liability and
offences requiring mens rea.
6
2.1 Crimes of Strict Liability
Few conceptual difficulties arise with respect to crimes of strict liability.
The weight of learned opinion is that the corporation is liable where the actus
reus committed by an employee can be imputed to the corporation or can be
regarded as the act of the corporation.
Whether this amounts to vicarious liability is disputed. Wells maintains that
the corporation is liable vicariously.
7
But Simester and Sullivan assert that the
corporation is liable directly;
8
they contend that in legal terms ‘companies
will commit offences of strict liability directly: the company, of itself, will
fulf‌il the offence specif‌ications of regulatory crimes (in terms of selling,
leasing, possessing, using etc) if done in the course of business of the
company’.
9
2.2 Crimes Requiring Mens Rea
In crimes requiring mens rea the central conceptual difficulty lies in
attributing mens rea (an entirely human capability) to a corporation which
4
LH Leigh The Criminal Liability of Corporations in English Law (1969) at 15-24.
5
Thus in Lennard’sCarrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705, the English case in
which the doctrine of identif‌ication f‌irst appeared (AP Simester & GR Sullivan Criminal Law: Theory
and Doctrine 3 ed (2007) at 259), the element of personal fault on the part of Lennard’s Carrying Co Ltd
was supplied by Mr Lennard, its Managing Director: he was the directing mind of the company, his
action the very action of the company itself. Malawi followed suit, as will be demonstrated below. The
most recent statement on this point was made in Naidoo v Mazi Import & Export Ltd and Tchongwe
Civil Cause no 706 of 1985 (unreported): the liabilities incurred by one of the directors in the name of
the company were held to be the liabilities of the company itself, and the director had incurred them
as the ‘directing mind and will’ of the company (see Cassim Chilumpha Introduction to Company Law
of Malawi 2 ed (1999) at 55-6).
6
This neat division encounters difficulties with ‘hybrid’regulatory offences that either allow a due
diligence defence or a defence based on lack of knowledge or where constructive knowledge forms part
of the def‌inition of the offence (Celia Wells ‘Corporate Liability for Crime:The Neglected Question’
(1995) 14 International Banking & Financial Law 42).
7
Idem at 43.
8
Simester & Sullivan op cit note 5 at 257.
9
Ibid.
CORPORATECRIMINAL LIABILITY IN ENVIRONMENTALPROTECTION 345
© Juta and Company (Pty) Ltd

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