Abstract

FARISANI, Dorothy Mmakgwale. Corporate criminal liability in South Africa: what does history tell us about the reverse onus provision?. Fundamina (Pretoria) [online]. 2017, vol.23, n.1, pp.1-19. ISSN 2411-7870.  http://dx.doi.org/10.17159/2411-7870/2017/v23n1a1.

An inevitable outcome of the coming into being of the Constitution in South Africa was the existence of a number of statutes or provisions within statutes that infringed some of the constitutionally entrenched rights. This led to the Constitutional Court finding itself faced with the responsibility of determining whether such provisions were in line with the Constitution or not. Many matters of this nature were heard during the period immediately after the promulgation of the Constitution. In South Africa corporate criminal liability is regulated by section 332 of the Criminal Procedure Act 1977. With regard to corporate criminal liability, the Constitutional Court heard a matter in which a reverse onus provision contained in section 332(5) of the Criminal Procedure Act was successfully challenged and declared invalid as it infringed the accused person's right to presumed innocent until proven guilty. Twenty years later, section 332 of the Criminal Procedure Act continues to exist with a sub-section that contains wording that is analogous to the invalidated section 332(5). In section 332(7) the reverse onus provision exists, albeit against members of associations that do not have legal personality. The sub-section has not been constitutionally challenged. However, the Constitutional Court, shortly after the coming into existence of the Constitution, heard several cases in which the validity of reverse onus provisions that infringed upon the right to be presumed innocent were successfully challenged. This article will examine some of these decisions in an attempt to show that history shows us that section 332(7) does not belong to the era we are in and if it was to be constitutionally challenged it is unlikely that it would survive. Emphasis will be put on the fact that we should not wait for a court challenge, but rather, the legislature should make a move towards the reform of corporate criminal liability and in so doing, eliminate reverse onus provisions that infringe upon the presumption of innocence.

Keywords : Corporate criminal liability; criminal liability of members of associations; constitutional right to be presumed innocent; reverse onus; common law regulation of criminal liability of directors.

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