Corporate accountability in South Africa: Sharpening the role of criminal law

by | Oct 13, 2019 | SACJ, SACJ V29 I3 2016

Corporate accountability in South Africa: Sharpening the role of criminal law

Authors John Paul Ongeso

ISSN: 1996-2118
Affiliations: Post-doctoral Research Fellow at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), University of Johannesburg, South Africa
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 225 – 246

Abstract

South Africa’s Criminal Procedure Act 51 of 1977 adopts a derivative model of establishing corporate liability. This article argues that this model has a number of limitations that render it ineffective for corporate accountability for serious human rights violations and crimes. It considers an alternative model of non-derivative criminal liability and discusses how this may apply to the South African context through its inclusion in the Act. This article also draws from legislative schemes in the United Kingdom and Australia that have incorporated non-derivative models for corporate criminal liability.

The raison d’être of hate-crime laws

by | Oct 13, 2019 | SACJ, SACJ V29 I2 2016

The raison d’être of hate-crime laws

Authors Kamban Naidoo

ISSN: 1996-2118
Affiliations: Senior Lecturer, Department of Criminal and Procedural Law, UNISA
Source: South African Journal of Criminal Justice, Volume 29 Issue 2, p. 158 – 172

Abstract

Hate-crime laws include laws that specifically criminalise unlawful conduct motivated by bias or prejudice towards personal characteristics of the victim and laws that allow for the imposition of harsher penalties on convicted hate-crime offenders. Such laws are often justified on the retributive basis that hate crimes cause greater harms than crimes that are not motivated by bias or prejudice. The imposition of a harsher punishment on the convicted hate-crime offender is therefore justifiable since it is proportional to the harms caused and because it is the offender’s just desert. However this retributive justification for hate-crime laws has been the subject of academic criticism. This article therefore attempts to find an alternative rationale for hate-crime laws by exploring denunciation as another justification for retribution and by considering the utilitarian theory of punishment. The South African context is considered since hate-crime laws do not presently exist in South African law. This article posits that the enactment of a hatecrime law in South Africa could be regarded as a symbolic commitment to equality since hate crimes are said to violate the right to equality.