S V CHIKUKU 2016 (2) ZLR 276 (H)

S v CHIKUKU 2016 (2) ZLR 276 (H)

Flynote

Criminal law: " c general principles " liability " director or employee of a company " vicariously liable for criminal acts of other directors or employees

The appellant was employed by a company as a clerk. A director of the company, together with the appellant's co-accused (who had since died), bought maize from the complainant, purporting to act on behalf of a company. The maize was delivered to the company's premises and an invoice was issued. The appellant undertook to have the complainant paid, but no payment was made. When the complainant called to see the appellant, he was told that the appellant was elsewhere in the country. The appellant was convicted of fraud. On appeal, the issue of his liability for the offence was raised.

Held, that in terms of s 277 of the Criminal Law Code [Chapter 9:23], any conduct on the part of a director or employee of a corporate body who is acting in the exercise of his or her power or in the performance of his or her duties as such, or in furthering or endeavouring to further the interests of the corporate body, shall be deemed to have been the conduct of the corporate body. In terms of s 277(3), any conduct, which constitutes a crime for which a corporate body is or was liable to prosecution, is deemed to have been the conduct of every person who at the time was a director or employee of the corporate body. However, where it is proved that a director or servant took no part in the conduct, such criminal liability shall not apply to him or her. The onus is on the director or servant to prove on a balance of probabilities that he did not take part in the commission of the offence and could not have prevented it. Here, although the appellant was not the one who initially made representations to the complainant, he subsequently made common cause with the director and his co-accused. This he did by making assurances that payment would be made.