1 See Connor CJ in Dunell, Ebden and Co v Swinburne 1876 NLR 8 at 8–10. See also R Zimmermann “Roman-Dutch jurisprudence and its contribution to European private law” (1992) 66 Tulane Law Review 1685 at 1685.

2 See B Glover “The doctrine of duress in the law of contract and unjustified enrichment in South Africa” (unpublished PhD thesis, Rhodes University, 2003) at 37.

3 The universitas personarum was an association of persons and included municipalities, various religious bodies, certain trades unions and associations of financiers (societates publicanorum). The universitas bonorum on the other hand was a complex set of assets and liabilities, including charitable foundations (piae causae) such as hospitals or almshouses. With the reception of Roman law in the Middle Ages, the universitas bonorum became part of the common law of continental Europe. However, some commentators posit that the terms are post-Roman. See Hahlo, HSouth African Company Law Through the Cases (3rd ed, 1977, Juta) at 4Google Scholar. The terms collegium and corpus were also used; see Catholic Encyclopaedia at: <http://www.newadvent.org/cathen/04387a.htm> (last accessed 1 September 2009). These terms now refer to certain voluntary associations formed under the common law. See M Tett and N Chadwick Rhodesian Company Law (1976, Typeset) at 190.

4 Tett and Chadwick Rhodesian Company Law, id at 3. For discussion of the recognition of legal personality under Roman law, see J Pretorius (general ed), Delport, P, Havenga, M and Vermaas, MHahlo's South African Company Law Through the Cases (6th ed, 1991, Juta) at 9–14Google Scholar; Maitland, F “The corporation sole” (1900) 16 Law Quarterly Review 335 at 335Google Scholar.

5 The existence of private business associations was not encouraged because of the fear that they would develop into subversive political organizations. See Tett and Chadwick Rhodesian Company Law, id at 3.

6 Ibid.

7 See Lizée, M “De la capacité organique et des responsabilités délictuelle et pénale des personnes morales” [The capacity, and criminal and tort liability of juristic persons] (1996) 41/1McGill Law Journal 131 at 134–35Google Scholar.

8 Every abbey, cloister or chapel was treated as a separate legal entity. See Hahlo South African Company Law, above at note 3 at 10.

9 See id at 4. See also Burchell, E, Hunt, P, Milton, J and Burchell, JSouth African Criminal Law and Procedure General Principles of Criminal Law (vol 1, 1983, Juta)Google Scholar at 395; R v Oudtshoorn Municipality (1908) 25 SC 257 at 261.

10 See Lizée “De la capacité organique”, above at note 7 at 136; Coffee, LizéeJ “No soul to damn: No body to kick: An unscandalized inquiry into the problem of corporate punishment” (1981) 79/3Michigan Law Review 386 at 386, note 2Google Scholar; Weismann, A and Newman, D “Rethinking criminal corporate liability” (2007) 82/2Indiana Law Journal 411 at 419, note 14Google Scholar.

11 Mestre claims that during this period kings and popes punished municipalities and provinces. See A Mestre Les Personnes Morales et le Problème de Leur Responsabilité Pénale [Juristic persons and the riddle of their criminal liability] (1899, Librairie Nouvelle de Droit et de Jurisprudence) at 34. See also Valeur, RLa Responsabilité Pénale des Personnes Morales dans les Droits Français et Anglo-Américains [The criminal liability of juristic persons in French and Anglo-American law] (1931, Marcel Giard) at 9–10Google Scholar.

12 See Hahlo South African Company Law, above at note 3 at 2; Pretorius et al Hahlo's South African Company Law, above at note 4 at 2; Wandrag, M “The distinction between private and public companies in South African company law” (1997) Transactions of Centre for Business Law 28 at 50–62Google Scholar; Wegger, G, Galcut, O and Keeton, ATopham's Principles of Company Law (3rd ed, 1953, Butterworths) at 1Google Scholar; Barlow, T and Emmett, MPrinciples of South African Company Law (6th ed, 1969, Juta) at 1Google Scholar.

13 See generally, Leigh, LThe Criminal Liability of Corporations in English Law (1969, Weidenfeld and Nicholson)Google Scholar; Wells, CCorporations and Criminal Responsibility (2nd ed, 2001, Oxford University Press)Google Scholar; Clough, J and Mulhern, CThe Prosecution of Corporations (2002, Oxford University Press)Google Scholar; Gobert, J and Punch, MRethinking Corporate Crime (2003, LexisNexis/Butterworths)Google Scholar.

14 It was only in the 1940s that English courts began holding companies liable for crimes of intent. See the cases of Director of Public Prosecutions v Kent and Sussex Contractors Ltd [1944] 1 KB 146; R v ICR Haulage Ltd and Others (1944) 1 KB 551; Moore v I Bresler Ltd (1944) 2 All ER 515.

15 Criminal Procedure and Evidence Act 31 of 1917.

16 Viscount Haldane in Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 713 formulated the directing mind and will theory that was later adopted by the criminal law courts to impute liability to companies. See Stessens, “Corporate criminal liability: A comparative perspective” (1994) 43 International and Comparative Law Quarterly 493 at 508–09Google Scholar; Wells, C “Manslaughter and corporate crime” 1989 New Law Journal 931 at 931Google Scholar.

17 See O'Regan, J in NK v Ministry of Safety and Security [2005] JOL 14864 (CC).

18 See Boyd v Stuttaford & Co 1910 AD 101; Mkize v Martens 1914 AD 382.

19 Vicarious liability has also been the applicable model in the United States since 1909, following New York Central and Hudson River Railroad v United States 212 US 481 (1909).

20 For some constructive criticisms, see Burchell et al South African Criminal Law and Procedure, above at note 9 at 395. See also the cases of R v Dundee Coal Mining Co (1904) 25 NLR 357; R v Shaw Patent Chilling Freezing Process Co Ltd 1921 TPD 397; R v Standard Investment Corporation 1921 TPD 415; R v Port Elizabeth Municipality 1928 EDL 49. It is important to note that it was doubtful whether criminal sanctions could be imposed on companies under Roman-Dutch law, although as mentioned earlier corporate entities and municipalities were sometimes criminally sanctioned under Roman law.

21 Some examples of cases that have dealt with acts committed in furthering or endeavouring to further the interests of corporations include: R v Van Heerden 1946 AC 168; R v Booth Road Trading Co (Pty) Ltd 1947 1 SA 34 (N); R v Phillips Dairy (Pty) Ltd 1955 4 SA 120 (T); R v Barney's Super Service Station (Pty) Ltd 1956 4 SA 107 (T); R v Banur Investments (Pty) Ltd 1969 1 SA 231 (T) 233–34.

22 Cilliers, H, Benade, M, Henning, J, Du Plesis, J, Delport, P, De Koker, L and Pretorius, JCorporate Law (2001, Butterworths) at 566Google Scholar.

23 See Tett and Chadwick Rhodesian Company Law, above at note 3 at 191.

24 R v Joseph Mitshumayeli (Pty) Ltd 1971 1 SA 33 (RA).

25 R v Markins Motors 1959 (3) SA 508 (A).

26 R v Wege 1959 (3) SA 268 (C).

27 Following the decision of the Constitutional Court in NK v Ministry of Safety and Security, above at note 17.

28 This is debatable given that acts such as theft, assault and rape are attributable to a company. However, what is important here is whether the applicable law in a given instance would allow acts that constitute the actus reus [elements of an offence] or mens rea [criminal intention] of the offence to be attributed to a corporation.

29 1972 3 SA 385 (N).

30 The courts also held in the following cases that the nature of the crime was such that it could not be committed by a company: R v City Silk Emporium (Pty) Ltd 1950 1 SA 825 (GW); R v RSI (Pty) Ltd 1959 1 SA 414 (O); R v Smith 1960 4 SA 364 (O).

31 See R v Hammersma 1941 OPD 39.

32 Nonetheless, it is not correct to summon the company in its own name. The director or servant must be summoned in his capacity as representative. See Herold NO v Johannesburg City Council 1947 2 SA 1257 (A) at 1266–67.

33 See R v Mucheche Bus Service (Pty) Ltd 1969 (2) RLR 392 (AD); and R v Richardson NO 1951 (4) SA 284 (T).

34 (2002) unreported judgment, High Court of Lesotho held at Maseru, available at: <http://www.odiousdebts.org/odiousdebts/index.cfm?DSP=subcontent&AreaID=157> (last accessed 1 September 2009). It should be noted that the laws of the Kingdom of Lesotho generally follow the laws of the Republic of South Africa. See F Darroch “The Lesotho corruption trials: A case study”, available at: <http://www.ipocafrica.org/cases/highlands/funding/darroch.pdf> (last accessed 1 September 2009).

35 Kriegler, JHiemstra: Suid Afrikaanse Strafproses [Hiemstra: South African criminal procedure] (6th ed, 2001, Butterworths) at 875Google Scholar.

36 (2002) unreported judgment, above at note 34.

37 See Schreiner JA and Steyn JA's contentions in R v Lambada and Others 1958 (2) 481 (A) 484 G–H. See also R v Van den Berg 1955 (2) SA 338 314 A–B; and S v Klopper 1975 (4) SA 773 (A) at 780.

38 Tett and Chadwick Rhodesian Company Law, above at note 3 at 192. See also the cases of R v Milne and Erleigh 1951 1 SA 791 (AD) and S v Avon Bottle Store (Pty) Ltd 1963 (2) SA 389 (AD).

39 Tett and Chadwick, ibid.

40 The presumption of guilt and a ludicrous reverse form of vicarious liability where the servant was called upon to answer the master's case.

41 1997 (4) BCLR 437 (CC).

42 Together with sec 245 of the same act dealing with false representation.

43 Following the abolition of the doctrine of common employment.

44 It was however made clear in the leading case of Huggins (1730) 2 Stra 883 that there was to be no parallel development in English criminal law.

45 See generally: Heaton, RCriminal Law (2004, Oxford University Press)Google Scholar; Hawke, NCorporate Liability (2000, Sweet & Maxwell)Google Scholar.

46 Reedie v London and North West Railway (1849) 4 Exch 244.

47 Heaton Criminal Law, above at note 45 at 18.

48 Vose and Lancs v Yorks Railway (1958) 27 LJ Ex 249 per Pollock CB.

49 See Ranger v Great Western Railway Co (1854) 5 HLC 72 at 86–87 per Lord Cottenham LC.

50 [1912] AC 716 HL.

51 Id at 738. See also Atkins LJ in Griffiths v Studebaker [1927] 1 KB 102. See also T Bernard “The historical development of corporate criminal liability” (1984) 22/1 Criminology 3 at 3.

52 This doctrine has the effect that the actions or deeds of a duly incorporated company may not exceed the substance of the powers granted to it by applicable legislation, that is, the objects as defined in the objects clause of the company's constitution. See the English case of Ashbury Railway Carriage and Iron Company Ltd v Richie (1875) LR 7 HL 653.

53 See the cases of Bezuidenhout NO v Eskom 2003 (3) SA 83 (SCA); Minister of Law and Order v Ngobo 1992 (4) SA 822 (a); Hirsch Appliance Specialists v Shield Security Natal (Pty) 1992 (3) SA 643 (D). See also Neethling, J, Potgieter, J and Visser, PLaw of Delict (4th ed, 2002, Butterworths) at 331 and 357Google Scholar.

54 It must however be noted that the acts of employees or managers may be considered to be within the scope of their authority if they could be said to have been impliedly authorized or are reasonably incidental to matters expressly authorized by applicable legislation. See the English cases of Baroness Wenlock v River Dee Co (1885) 10 App Cas 354 HL; Attorney General v Great Eastern Railway (1880) 5 AC 473 per Lord Selbourne; and Attorney General v Fulham Corporation [1921] 1 Ch 440 per Sargant J.

55 It must also be noted that the importance of the ultra vires doctrine has been significantly lessened in the United Kingdom with the application of sec 9(1) of the European Communities Act 1972, whereby a third person dealing with the company in good faith can enforce an ultra vires contract against the company if he can show that he was acting in good faith and the ultra vires contract was entered into by the directors of the company or upon their instructions. Moreover, sec 38(1) of the Companies Act 2006 (c 46) provides that the validity of an act done by a company shall not be called into question on the ground of lack of capacity by reason of anything in the company's constitution. See also sec 40 of the Companies Act 2006 (c 46).

56 2001 (1) SA 372 (SCA) 378.

57 See also the case of Lister v Hesley Hall Ltd [2001] 2 All ER 769 at para 28 in the United Kingdom where the House of Lords established the correct test to be “whether the employee's acts were so closely connected with their employment that it would be fair and just to find the employer liable”. Equally, the Court of Appeal in Irving and Irving v Post Office [1987] 1 IRLR 289 at 290 advanced that the employer would be liable provided the acts of the employee are so connected with acts which the employer has authorized “that they might rightly be regarded as modes - although improper modes - of doing them”. See also the cases of Chapman v Oakleigh Animal Products Limited (1970) 8 KIR 1063; Mattis v Pollock (t/a Flamingos Nightclub) [2003] 1 WLR 2158.

58 (2005) (3) 179 (SCA).

59 See also Feldman (Pty) Ltd v Mall 1945 AD 733 at 741.

60 See Tindall JA, id at 756–57. See also Minister of Police v Rabie 1986 (1) SA 117 (A) at 130.

61 See the Supreme Court of Appeal in NK v Ministry of Safety and Security, above at note 58 at para 4; Minister of Police v Rabie, ibid.

62 See NK v Ministry of Safety and Security, above at note 17. See also sec 39(2) of the South African Constitution.

63 See also Moseneke J in S v Thebus 2003 (6) SA 505 (CC).

64 See also Media 24 Ltd & Another v Grobler [2005] JOL 14595. These cases are discussed in Nana, C “Sexual harassment in the workplace in South Africa: The unlimited vicarious liability of employers?” (2008) 52/2Journal of African Law 245Google Scholar.

65 See also Minister v Khoza 1966 1 SA 410.

66 See Grogan, J “The elusive employee: New twists in the statutory definition” (2005) Employment Law Journal 1 at 3Google Scholar.

67 This is similar to the imposition of liability for acts that were contra bonos mores [contrary to morals] under Roman law. See Monti, G “A reasonable woman standard in sexual harassment litigation” (1999) 19/4Legal Studies 552 at 555CrossRefGoogle Scholar.

68 Although the CPA 1977 uses the term “servant”, the terms “employee” and “worker” are commonly used by judges and commentators.

69 See also The Employment Appeal Tribunal of the United Kingdom in Chief Constable of Lincolnshire Constabulary v Stubbs [1999] IRLR 81. Compare with Sidhu v Aerospace Composite Technology Ltd [2001] ICR 167.

70 ABSA Bank Ltd v Born Equipment (Pretoria) (Pty) Ltd, above at note 56.

71 See Burchell et al South African Criminal Law and Procedure, above at note 9 at 392. See also R v English (1916) 37 NLR 232; R v Van Schalkwyk 1921 CPD 84; and Hoosain NO v Johannesburg City Council 1948 (1) SA 564 (T) 568. It follows from the above that any record which was made or kept by a director or servant of a corporate body within the scope of his activities as such and any document which was at the time in the possession or control of any such director, servant or agent within the scope of his activities are admissible against the accused corporation. See Tett and Chadwick Rhodesian Company Law, above at note 3 at 192–93.

72 It has been contended that this definition applies only for the purposes of this section. See Cilliers et al Corporate Law, above at note 22 at 567. See the cases of R v Theron 1960 (3) SA 331 (T); S v Marks 1965 (3) SA 834 (W) 842; R v Vandenberg 1979 (1) SA 208 (D); and R v Alex Carriers (Pty) Ltd 1985 (3) SA 79. The Code of Corporate Practices and Conduct of 1994 from the first King Report of 1994 categorizes an executive director as an individual who is involved in the day-to-day management and/or is in full time salaried employment of the company; see paragraph 2.4.3 of the code. Also important is sec 11(1) of the National Occupational Health and Safety Bill 2005 which defines the duty of the “chief executive officer” as the person that is responsible for ensuring that the employer, business or undertaking complies with its obligations in terms of the bill.

73 A number of reasons may be surmised: the legislators intended that focus should be on the acts of the directors, given that they control and manage the affairs of the company and influence its policies; the legislators thought that the terms could be used as synonyms for the purposes of this law, given that a company is liable for the acts of both directors and servants.

74 See the definitions in the Basic Conditions of Employment Act 75 of 1997, the Machinery and Occupational Safety Act 15 of 1992, the Wage Act 19 of 1992 and the Manpower Training Act 32 of 1993.

75 See also sec 83A of the Basic Conditions of Employment Act 75 of 1997. See also the following cases: Woolworths (Pty) Ltd v Whitehead [2000] 6 BLLR 640 (LAC); Wyeth SA (Pty) Ltd v Manqele & Others [2003] 7 BLLR 734 (LC); Khanyile v CCMA & Others [2005] 2 BLLR 138 (LC).

76 Sec 6(1)(b) of the National Occupational Health and Safety Bill 2005 provides a similar definition, to the effect that a worker is any individual who “undertakes working activities for any employer or person who conducts a business or undertaking, regardless of the form of the contractual agreement in terms of which those working activities are performed”. Due to the fact that this bill proposes the creation of an offence of corporate homicide, it is very likely that courts will mostly refer to this section (if the bill is passed into law) for the definition of an employee or worker for the purposes of corporate criminal liability. This is because the bulk of cases on the criminal liability of corporations involve occupational health and safety.

77 It is also quite difficult to ascertain whether a director could be considered an employee or not. In the English case of Re Exchange Banking Co, Flitcroft's Case (1882) 21 ChD 519 (CA), Bacon VC said at 525 that they are trustees and nothing else. However, this description is inappropriate in South African law, given that the trustee is the owner of the trust property. Nonetheless, other legal terms such as quasi-trustee, agent, managing partner and paid servant have been held to be inadequate to cover all the legal relationships to which the director may be a party. Other commentators posit that it is necessary to identify the positions in which a director may find herself. See Cilliers et al Corporate Law, above at note 22 at 116.

78 It may be more appropriate to designate individuals with specific responsibilities such as a “chief executive officer” or “person conducting a business” or “health and safety director.” See, for example, secs 9, 11 and 12 of the National Occupational Health and Safety Bill 2005.

79 CPA 1977, sec 332(2). The exception is cases of minor crimes where a fine may be paid as admission of guilt. See R v Lark Clothing (Pty) Ltd 1973 1 SA 239 (C). It is however unclear who or which organ of the corporation should authorize that plea.

80 The principle of vicarious liability can also be found in South African customary law, where a kraalhead [head of homestead] is liable for all the delictual acts of inhabitants of the kraal [homestead]. See Bennett, AA Sourcebook of African Customary Law for Southern Africa (1991, Juta) at 351Google Scholar; Seymour, BSeymour's Customary Law in Southern Africa (1989, Juta) at 82Google Scholar.

81 Vicarious criminal liability has been the subject of harsh criticism because it presupposes the imposition of liability on a person for a crime committed by another. See Burchell et al South African Criminal Law and Procedure, above at note 9 at 386.

82 See the cases of Cadwell v Inspector of Nuisances, Durban (1903) 24 NLR 181; R v Fish (1904) 21 SC 183; R v Wunderlich 1912 TPD 1118; Goldstein v Johannesburg Municipality 1926 TPD 176; R v Walton 1928 EDL 236; R v Hilder 1930 EDL 45; R v Cronin 1935 TPD 328.

83 Burchell et al South African Criminal Law and Procedure, above at note 9 at 388.

84 The idea was that the absence of the requirement of proof of criminal intent meant liability could be transferred from one person to another.

85 Burchell et al South African Criminal Law and Procedure, above at note 9 at 388. It has also been pointed out that, where statutes impose liability directly on the corporation, whether such liability is strict or requires proof of intent or provides for a defence of due diligence, it is direct liability and not vicarious liability. Thus, vicarious liability and strict liability cannot be bedfellows. See C Clarkson “Corporate culpability” (1998) 2 Web Journal of Current Legal Issues, available at: <http://webjcli.ncl.ac.uk/1998/issue2/clarkson2.html> (last accessed 1 September 2009). See also the case of Seaboard Offshore Ltd v Secretary of State for Transport [1994] 2 All ER 99.

86 See the statement of Channell J in Pearks, Gunston and Tee v Ward (1902) 2 KB 1 at 11: “By the general principles of the criminal law, if a matter is made a criminal offence, it is essential that there should be something in the nature of mens rea, and therefore, in ordinary cases a corporation cannot be guilty of a criminal offence”. See also Raymond CJ in the case of Huggins (1730) 2 Stra 883. See also Brambell B's dictum in R v Stephens (1886) 1 QB 709; and Moussell Brothers Ltd v London and North-Western Railway Company [1917] 2 KB 836 per Viscount Reading CJ and per Atkin J.

87 See the arguments put forward by Todarello, V “Corporations don't kill – people do: Exploring the goals of the United Kingdom's Homicide Bill” (2002) 46/8New York Law School Law Review 851Google Scholar.

88 Laufer, W “Corporate bodies and guilty minds” (1994) 43/2Emroy Law Journal 647 at 654Google Scholar. See also Ragozino, A “Replacing the collective knowledge doctrine with a better theory for establishing corporate mens rea: The duty stratification approach” (1996) 24/2Southwestern University Law Review 423Google Scholar.

89 Given that the alter ego doctrine in civil law [under which the law disregards the limitation on an individual's personal liability, where a corporation is used as a mere conduit for the conduct of personal business] was readily imported into criminal law, vicarious liability could equally have been imported.

90 Vane v Yiannopoullos [1965] AC 486 at 506 per Lord Morris.

91 The decisions in Mackay Brothers and Company v Gibb (1969) JC 26 and Tesco Stores Ltd v Brent London Borough Council [1973] 2 All ER 718 can be interpreted as meaning that, where the statute would be otherwise ineffective, vicarious liability can be implied even where there is a mental element present in the definition of the offence or in the nature of any defence.

92 Coppen v Moore (No 2) [1898] 2 QB 295 per Russell CJ; Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 BCLC 126 per Lord Hoffmann; Re Supply of Ready Mixed Concrete [1995] 1 AC 456 per Lord Templemann. See also Clarkson, C “Kicking corporate bodies and damning their souls” (1996) 59/4Modern Law Review 557 at 564–65Google Scholar; Sullivan, G “The attribution of culpability to limited companies” (1996) 55/3Cambridge Law Journal 551 at 522–23Google Scholar.

93 See Clough and Mulhern The Prosecution of Corporations, above at note 13 at 81.

94 The model that obtains in the United Kingdom for statutory and common law crimes excluding corporate manslaughter or corporate homicide.

95 Bingham LJ distinguished between both models as follows: “[a] company may be vicariously liable for the negligent acts and omissions of its servants and agents, but for a company to be criminally liable for manslaughter it is required that mens rea and actus reus should be established not against those who acted for or in the name of the company but against those who were identified as the embodiment of the company itself”: R v HM Coroner for East Kent ex parte Spooner (1989) 88 Cr App R 10 at 16. See also the distinction made between the two concepts in Hawke Corporate Liability, above at note 45 at 125.

96 See Ragozino “Replacing the collective knowledge doctrine”, above at note 88 at 437; Sullivan “The attribution of culpability”, above at note 92 at 523.

97 Clarkson argues that, if a “maverick employee” decides to “go it alone” in spite of clear policies and express instructions, it hardly seems justifiable to blame the company for those actions or inactions. See Clarkson “Corporate culpability”, above at note 85. See also Laufer “Corporate bodies and guilty minds”, above at note 88 at 659.

98 Even in the United States where vicarious criminal liability equally obtains, courts have a tendency to impose hefty sanctions only where senior officers who influence policy in one way or the other were involved. See Khanna, V “Corporate criminal liability: What purpose does it serve?” (1996) 109/7Harvard Law Review 1477 at 1491CrossRefGoogle Scholar.

99 See R v Meltzer 1946 TPD 597; Hoosain NO v Johannesburg City Council 1948 (1) SA 564 (T); R v Robertson 1948 (1) SA 582; R v Chee 1957 (2) SA 289 (SR).

100 R v Austermulhe 1910 CPD 324; R v Schmitz 1912 CPD 507.

101 R v Bear 1912 TPD 246; R v English (1916) 37 NLR 227; R v Ashton and Taylor (1918) 39 NLR 224. This is also the position adopted by the National Occupational Health and Safety Bill 2005. Nonetheless, sec 124(2) of this bill makes it difficult for employers to prove that they took all reasonable steps to avoid the occurrence of the crime, given that it will not be enough to show that they gave clear instructions prohibiting such act or omission.

102 Sec 332(5) of the CPA 1977 instead provided this defence for directors or servants prosecuted for a crime for which the corporation was charged. The burden of proof was on the directors and servants and not on the prosecution; as noted at note 41 above, the Constitutional Court in S v Coetzee declared the subsection unconstitutional.

103 Sec 124 of the National Occupational Health and Safety Bill 2005 still employs the mechanism of vicarious liability to impute liability to the corporate employer for the purposes of the new crime of corporate homicide, but it provides a due diligence defence to the employer. The latter can thus show that it took all reasonable steps to prevent the act or omission that resulted in the offence. However, as mentioned earlier, it will be difficult for the employer to invoke this defence successfully.

104 The “test” seems to depend on whether the employee acted to “further the interest” of the corporation. However, as shown earlier, the question of what constitutes the “interest” of the company has created ground for much controversy in South Africa and around the world. See generally Dodd, E “For whom are corporate managers trustees?” (1932) 45/7Harvard Law Review 1145CrossRefGoogle Scholar; T Norwitz “‘The metaphysics of time’: A radical corporate vision” 46/2 Business Lawyer 377.

105 See however the decisions in R v Sutherland 1972 3 SA 385 (N); R v City Silk Emporium (Pty) Ltd 1950 1 SA 825 (GW); R v RSI (Pty) Ltd 1959 1 SA 414 (O); R v Smith 1960 4 SA 364 (O).

106 It must be noted that a number of statutory provisions impose duties on the employer. See for example, sec 60(3) of the Employment Equity Act 55 of 1998; secs 14–17 of the National Occupational Health and Safety Bill 2005; and item 6 of the Amendment to the South African Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace of August 2005. In the event of harm or injury, the employer in such instances is personally liable for breach of duty rather than vicariously liable for the acts of its employees that caused the breach.

107 See Lehohla J in the Lesotho case of R v Acres International, above at note 34. See also Burchell et al South African Criminal Law and Procedure, above at note 9 at 389.

108 See Williams, GTextbook of Criminal Law (1978, Gordon, Stevens & Sons) at 285–86Google Scholar.

109 See Darroch “The Lesotho corruption trials”, above at note 34.

110 There is however much uncertainty regarding the appropriate test to be used to determine whether the defendant corporation's liability for negligent risk assessment should be derived from a particular individual or from the way the corporation's activities were managed. See Wells, C “Corporations: Culture, risk and criminal liability” (1993) Criminal Law Review 551 at 551–55Google Scholar.

111 That is why Archibald, Jull and Roach advance that, if there were to be “no outer limit on the reach of the doctrine, the common law would have established corporate criminal liability by the doctrine of respondeat superior” [let the master answer for his employee's actions]. See Archibald, T, Jull, K and Roach, K “The changed face of corporate criminal liability” (2004) 48/3Criminal Law Quarterly 367 at 371Google Scholar.

112 The UK Corporate Manslaughter and Corporate Homicide Act 2007 (which is designed to capture corporate failings in the management of risk, as well as the gross failings by an organization's senior managers, either individually or collectively) shows the tendency of moving away from the problematic concept of identification. Equally, in enacting the Criminal Code 1995, Australia moved away from vicarious criminal liability and the identification doctrine to the “corporate culture” model which is more tailored to the corporate criminal. See generally, Stuart, D “Punishing corporate criminals with restraint” (1995) 6/2Criminal Law Forum 253 at 253CrossRefGoogle Scholar.

113 See for example sec 12.3 of the Australian Criminal Code 1995 and sec 1 of the UK Corporate Manslaughter and Corporate Homicide Act 2007.

114 The National Occupational Health and Safety Bill 2005 for example designates the persons who have the duty to ensure that the company complies with the rules of the bill. See secs 9, 11 and 12, referenced at note 78 above. However, the bill still imputes the acts of individual employees or managers to the company.

115 Providing for example clear and concise definitions to terms such as “scope of employment”, “company policy”, “practice or course of conduct”, “create” and “tolerated”.

116 See for example sec 125 of the National Occupational Health and Safety Bill 2005.

117 Including for example regarding the admissibility of evidence. See sub-secs 332(3), (4), (6) and (9) of the CPA 1977.

118 See for example, sec 12 of the National Occupational Health and Safety Bill 2005.