S v Joseph Mtshumayeli (Pvt) Ltd

• Jurisdiction: South Africa
• Judge: Beadle CJ and Greenfield AJA
• Judgment Date: 04 September 1970
• Citation: 1971 (1) SA 33 (RA)
• Hearing Date: 20 August 1970
• Court: Appellate Division

Beadle, C.J.:

The appellant, a limited liability company which operates an omnibus company, was convicted in a magistrate's court of culpable homicide and sentenced to a fine of $200. The G appellant now appeals against both conviction and sentence.

The facts of the case are these: An omnibus owned by the appellant company was on the night in question being driven by one of its drivers, who was charged with the appellant as the second accused. At about midnight the second accused showed H signs of fatigue and a passenger sitting next to him (charged with the appellant as the third accused in the case) offered to take over the driving from the second accused while the latter rested. This the second accused agreed to. The third accused was licensed to drive a heavy vehicle but was not licensed to drive an omnibus. After the third accused had driven for about a quarter of an hour he lost control of the vehicle which overturned, killing one of the passengers. The magistrate acquitted the second accused but found the third accused guilty together with the appellant of culpable homicide.

Beadle CJ

He sentenced the third accused to a fine of $30 or in default of payment 30 days' imprisonment with hard labour, suspended for three years on condition that in the period the accused does not commit any offence involving reckless, negligent or A dangerous driving, and ordered that particulars of the conviction be endorsed on his driver's licence.

It is common cause that the third accused was rightly convicted of culpable homicide on the basis that his negligent driving of the omnibus caused the death of the deceased.

The conviction of the appellant was based on the provisions of B sec. 401 (1) of the Criminal Procedure and Evidence Act, Chap. 31.

Sec. 401 (1) reads:

"(1) For the purpose of imposing upon a corporate body criminal liability for any offence under any law -

(a)

any act performed, with or without a particular intent by or on instructions or with permission, excess or implied, given by a director or servant of that corporate body; and

(b)

C the omission, with or without a particular intent, of any act which ought to have been but was not performed by or on instructions given by a director or servant of that corporate body;

in the exercise of his powers or in the performance of his duties as such director or servant, or in furthering or endeavouring to further the interests of that corporate body, shall be deemed to have been performed (and with the same intent, if any) by that corporate body or, as the case may be, to have been an omission (and with the same intent, if any) on D the part of that corporate body."

The question for determination in this appeal is whether the appellant was criminally liable, in terms of this sub-section, for the negligent driving of the third accused. This question may be answered by considering what was "the act performed" E which caused the death of the deceased. It seems to me that the act which caused the death of the deceased was the driving of the omnibus by the third accused. The third accused drove the omnibus with the permission of the second accused, who was a servant of the appellant, and the third accused undoubtedly drove the omnibus while "endeavouring to further the interests of" the appellant. This being so, the act of driving the F omnibus is "deemed to have been performed" by the appellant. This act of driving could, of course, be performed either lawfully or unlawfully. If performed lawfully no criminal liability would attach to the appellant; but if performed unlawfully, as in fact it was, criminal liability attaches to the appellant in the same way as it would if the appellant had G been a natural person who had himself driven the vehicle. This view is certainly in accord with the decisions in the Court of South Africa.

The case of R. v Bennet & Co. (Pty.) Ltd. and Another, 1941 T.P.D. 1941, dealt with sec. 384, as amended, of Act 31 of 1917 (S.A.), which is in identical terms to sec. 401, and in that case MURRAY, J. (as he then was), in a judgment in which H GREENBERG, J.P., concurred, said (see p. 200):

"In any event it seems to me that the language of sec. 384 (1) (a) and (b), as amended, is so clear that it is not competent for any court of law to refrain from giving the section the effect of its plain meaning. It is clear from the section that, where proof of any intent is necessary to constitute a crime, the intent of the physical actor, if a director or servant of a corporation, is deemed to be the intent of the...