11—1

CHAPTER 11

PROSECUTION OF COMPANIES, ETC

Section Page

1. Prosecution of corporate body or director

(1) recognition of whether body is corporate ............................................................ 11—1
(a) companies .................................................................................................... 11—2
(b) bodies incorporated under other statutes ..................................................... 11—2
(c) voluntary corporations ................................................................................. 11—2
(2) corporate body’s liability for acts of director or servant ..................................... 11—2
(3) charging a director or servant .............................................................................. 11—4
(4) evidence and presumptions
(a) proof of a body’s corporate nature ............................................................... 11—4
(b) proof that a person is a director or servant .................................................. 11—5
(c) presumptions
(i) records and documents ........................................................................ 11—5
(ii) guilt of director or servant ................................................................... 11—5
(d) admissibility of evidence ............................................................................. 11—6
(5) method of citing accused and specimen charges ................................................. 11—7
(6) pleading ............................................................................................................. 11—10
(7) punishment ........................................................................................................ 11—10

2. Charging members of unincorporated associations

(1) criminal liability ................................................................................................ 11—10
(2) evidence and presumptions ................................................................................ 11—11
(a) presumption of guilt of member ................................................................ 11—11
(b) admissibility of evidence ........................................................................... 11—11
(3) method of citing accused and specimen charge ................................................. 11—11

1. PROSECUTION OF CORPORATE BODY OR DIRECTOR

(1) RECOGNITION OF WHETHER BODY IS CORPORATE

Criminal law can affect not only individuals, but groups of individuals associated for some purpose.
Where the group itself has a legal personality distinct from its members, it is known as a universitas
personarum or corporate body. A corporate body exists as a legal identity separate from the
individuals who make it up. It is a legal person as much as is a human being. This provides a
corporate body with the ability to continue, even though individual members leave or may die
(“perpetual succession”), to hold property apart from its members, to sue and be sued in its own
name, and to commit crimes.

There are various types of corporate body recognised by our law.

11—2 Criminal Procedure in Zimbabwe

(a) Companies

A company, incorporated under the Companies Act [Chapter 24:03] or the Private Business
Corporations Act [Chapter 24:11] is the most common type of corporate body.

The name of a company will invariably appear with the word “Limited” or “Ltd” included. If it is
a private company it will appear as “(Private) Limited” or “(Pvt) Ltd” (see s 8(1)(a)(i) of the
Companies Act).

(b) Bodies incorporated under other statutes

A statutory corporation will be established under a special statute. For example, Air Zimbabwe is
incorporated under the Air Zimbabwe Corporation Act [Chapter 13:02], while the Zimbabwe
Broadcasting Corporation is established in terms of the Broadcasting Act [Chapter 12:01]. A
local authority will be established under a statute, such as the Urban Councils Act [Chapter 29:15].
General Acts are used to form other corporate bodies: for example, the Building Societies Act
[Chapter 24:02] and the Co-operative Societies Act [Chapter 24:05].

(c) Voluntary corporations

A voluntary corporation is a body, or association or society of individuals, which has acquired

personality, with or without the sanction of the state, by virtue of its having exercised, for a
substantial period, the essential characteristics of a corporation.1 As indicated above, these are
perpetual succession, and the acquisition of rights and the incurring of liabilities in its own name
and apart from its members.

To decide whether a particular voluntary association is a corporate body with distinct legal
personality, reference must be made to its constitution and to its nature, objects and activities. If
they lead to the conclusion that the association has perpetual succession, can hold property distinct
from its member, and it does not have as one of its objects the acquisition of gain, it will be a
corporate body. The type of bodies which have been recognised include churches, political parties,
library associations, social clubs, friendly societies and so on.

(2) CORPORATE BODY’S LIABILITY FOR ACTS OF DIRECTOR OR SERVANT

Only through the agency of its directors and servants can a corporate body perform acts. These
acts may be lawful or unlawful. If they are unlawful they may constitute crimes in respect of
which the corporate body may be charged and convicted. This applies to both common law and
statutory offences.2

For criminal liability to occur, there must have been:

1 Wille p 243.
2 Thus, in R v Bennett and Co (Pty) Ltd 1941 TPD 194, a corporate body was held to have been rightfully convicted of
culpable homicide. In R v P Hall & Co (Pvt) Ltd 1966 RLR 374 (A), a conviction for contravening the Roads and Road
Traffic (Construction, Equipment and Use) Regulations, arising out of admitted defects in one of its own buses which was
being driven by its servant in the course of his employment, was upheld against the company.
Prosecution of companies, etc 11—3

• an act, with or without a particular intent, performed by or on instructions by or with

express or implied permission given by a director or servant of the corporate body; or

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

The director or servant of the corporate body, in performing the act or omitting to perform the act
he should have performed, must have done so in the exercise of his powers or in the performance
of his duties as a director or servant, or in furthering or endeavouring to further the interests of the
corporate body.3 The act, omission and intent (if any) of the director or servant is then deemed to
be the act, omission and intent (if any) of the corporate body.4 It should not be thought that,
because the act or omission by the director or servant is unlawful, the corporation cannot be held
criminally liable on the ground that the director was exceeding his authority. Provided that the
director or servant is shown to have been:

(a) acting in the exercise of his powers as a director or servant; or

(b) acting in the performance of his duties as a director or servant; or

(c) furthering or endeavouring to further the interests of the corporate body;

and is proved to have committed an offence, then the corporation, as well as the director or servant,
is guilty of that offence. The corporation can only escape conviction if it can show that (a), (b) and
(c) did not apply.

A similar provision appears in the SO(CP)A, which provides that any conduct engaged in on
behalf of a body corporate by:

(a) a director, officer, employee or agent of the corporate body in the course of his employment;
or

(b) any other person at the direction or with the consent, express or implied, of a director,
employee or agent of the body corporate, where the giving of the direction or consent is
within the scope of authority of the director, officer, employee or agent;

is deemed to have been engaged in by the body corporate. Where a particular state of mind is
necessary, it is enough to show that a director, servant or agent of the body corporate who engaged
in the conduct in question had the necessary state of mind. In this context, “state of mind” includes
the person’s knowledge, intention, opinion, belief or purpose and his reasons for that knowledge,
intention, opinion, belief or purpose.5

3 In S v Joseph Mtshumayeli (Pvt) Ltd 1970 (2) RLR 151 (A); 1971 (1) SA 33 (RA), a servant of the company, employed
as a bus driver, allowed a third person to drive the bus the servant was employed to drive. The third person overturned the
bus and a passenger was killed. It was held that as the third person was endeavouring to further the interests of the
company, his act of driving was deemed to have been performed by the company, which was, accordingly, liable.
4 CP&EA s 385.
5 SO(CP)A s 65.
11—4 Criminal Procedure in Zimbabwe

(3) CHARGING A DIRECTOR OR SERVANT

The procedure for prosecuting a corporation is that a director or servant of the corporate body is
cited, as representative of the corporation as the offender. This will be dealt with in more detail
below.

A director6 or servant of a corporation is personally liable to prosecution for an offence when the
corporation itself is so liable. He can only escape liability by showing, on a balance of probabilities,
that he did not take part in the commission of the offence and could not have prevented it. Even if
the evidence is neutral on the involvement of a director in the commission of the offence, if he
does not establish that he took no part in the commission of the offence and could not have prevented
it, he must be convicted.7 A mere statement by the accused that he could not have prevented the
commission of the offence is not enough.8

Apart from being liable in his personal capacity, he is also liable to be prosecuted in his representative
capacity.9 Where he appears in his representative capacity only, he may not be committed to prison
pending trial. He must be released on his own recognizances.10 Nor may he be punished personally.
If he appears in both capacities, he may, in his personal capacity, be treated the same way as any
other individual who is undergoing trial.

Where a director or servant ceases to be a director or servant, or if he absconds or is unable to

attend the trial, the court may, at the prosecutor’s request, substitute any other person who is, at the
time of substitution, a director or servant or the company.11

(4) EVIDENCE AND PRESUMPTIONS

(a) Proof of a body’s corporate nature

When a company is incorporated, the Registrar of Companies issues a certificate of incorporation

and the legal existence of the company commences from the date of issue of such a certificate.
Section 357 of the Companies Act covers proof of documents held by the Registrar of Companies.
A properly certified copy of the certificate of incorporation may be handed in by the prosecutor.
Local authorities and statutory corporations both receive their corporate nature in terms of the
statutes governing them. Proof of their corporate nature would take the form of reference to the
appropriate statutes. To establish the corporate nature of an association, evidence would have to
be led to satisfy the court that the association had perpetual succession, owned property apart from
its members, and did not have as its primary objective the acquisition of gain. Evidence could be
adduced by a member of the association, the constitution of the association being put in as an
exhibit.

6 The term means any person who governs or controls the corporate body or is a member of a body or group of persons
which controls or governs the corporate body. If there is no such body or group, “director” means any person who is a
member of the corporate body: CP&EA s 385(1).
7 CP&EA s 385(6); S v Avon Bottle Store (Pty) Ltd & Ors 1963 (2) SA 389 (A) at 391H-392A; A-G v Paweni Trade
Corp (Pvt) Ltd & Ors 1990 (1) ZLR 24 (S).
8 S v Salama Taxis (Pty) Ltd & Ors 1964 (1) SA 371 (C).
9 CP&EA s 385(3).
10 CP&EA s 385(3), proviso (iii).
11 CP&EA s 385(3), proviso (ii).
Prosecution of companies, etc 11—5

(b) Proof that a person is a director or servant

Section 357 of the Companies Act may be used to prove that a person is a director of a particular
company. Each year, the names of the directors must be submitted to the Registrar of Companies
on Form CR 14. A certified copy of this form may be handed in from the bar by the prosecutor.

When the unlawful act or omission arises from the activities of a member or servant of a corporate
body who is not a director, proof must be given in evidence that the person is a member of, or the
servant is employed by, the corporate body.

(c) Presumptions

(i) Records and documents

When a corporate body or the director or servant of a corporate body is prosecuted, there may be
difficulties in proving documents or records properly in evidence. This difficulty is alleviated by
the presumptions created by subsections (4) and (5) of s 385.

Subsection (4) provides:

“ In any criminal proceedings against a corporate body, any record which was made or kept
by a director, servant or agent of the corporate body within the scope of his activities as
such director, servant or agent, or any document which was at any time in the custody or
under the control of any such director, servant or agent within the scope of his activities as
such director, servant or agent, shall be admissible in evidence against the accused.”

Note that mere agents of the corporate body are brought within the scope of the subsection. The
first part of the subsection covers records made or kept by the director, servant or agent; the
second part deals with any document which was at any time in the custody or under the control of
the director, servant or agent. In order to make use of the provisions of this subsection, the elements
contained there would have to be proved. Any difficulties in proving these elements are resolved
by the presumption contained in subs (5), which reads:

“ For the purposes of subsection (4), any record made or kept by a director, servant or agent
of a corporate body or any document which was at any time in his custody or control shall
be presumed to have been made or kept by him or to have been in his custody or control
within the scope of his activities such as director, servant or agent, unless the contrary is
proved.”

(ii) Guilt of director or servant

The presumption12 has already been mentioned that where there is an offence for which the corporate
body is liable to prosecution, every person who was a director or servant at the time of the offence
shall be deemed to be guilty of the offence unless he proves he did not take part in the commission
of the offence. Such a director or servant is liable to be prosecuted either jointly with the corporate
body or apart from it and is liable to be punished personally. The fact that the presumption makes
every director or servant liable does not make it appropriate for the prosecutor to charge every

12 Created by CP&EA s 385(5).

11—6 Criminal Procedure in Zimbabwe

director or servant. The nature of the business may be such that certain directors or servants could
not have been involved. The prosecutor’s approach to whether to charge a director or servant
personally should be to ensure that, besides the presumption, there is some evidence to connect
the director or servant with the offence; for example, the negligence of the servant in a culpable
homicide charge.

(d) Admissibility of evidence

Any evidence which would be admissible against a company is also admissible against a director
or servant of the company who is prosecuted.13 This applies to records and documents, which have
already been discussed above.

Where a director or servant of a corporate body is prosecuted for an offence (whether or not the
corporate body is or was liable to prosecution for that offence), any document, memorandum,
book or record which:

(a) was drawn up, entered up or kept in the ordinary course of business of that corporate
body’s business; or

(b) which was at any time in the custody or under the control of any director, servant or
agent;

is prima facie evidence of its contents. It is admissible in evidence against the accused director or
servant. This applies unless the accused director or servant is able to prove that at all material
times he had no knowledge of the particular document, memorandum, book or record, in so far as
its contents are relevant to the offence charged, and was in no way party to the drawing up of the
document or memorandum or the making of any relevant entries in such book or record.14

The scope of the provision is wide and places a considerable onus on the accused. For the prosecutor
to rely on it, however, he must, in addition to proving the existence of the corporate body and the
fact that the accused was a director or servant, call evidence to show that (a) the documents were
made in the ordinary course of business or (b) that they were under the accused’s control. Once
that is done, the person who drew up, entered up or kept the document, memorandum, book or
record need not be called as a witness.

An example of where the subsection might be used would be where the cashier of a corporate
body is charged with the theft of a sum of money. The theft involves a scheme whereby letters are
sent to customers demanding payment of sums in excess of those owing by the customers. In each
case the excess is stolen by the cashier. The letters of demand are sent on the instructions of the
cashier but are typed and signed by servants who are no longer in the employment of the corporate
body. It would be competent for the State to tender in evidence copies of the letters from the
company’s records without calling the persons who typed them on the accused’s instructions or
the persons who signed them. It must be stressed that proof must be tendered of the ordinary
course of the corporate body’s business, if this method of proof is adopted. The onus would then
be on the accused to prove that at all material times he had no knowledge of the letters and, in

13 CP&EA s 385(7)(a).
14 CP&EA s 385(7)(b).
Prosecution of companies, etc 11—7

addition, was in no way party to the drawing up of such letters. Unless and until the accused
discharges this onus on a balance of probabilities the copies of the letters are prima facie evidence
of their contents and are evidence against him.

Similarly, where the director of a company is charged and documents are found in his custody or
under his control, there is no need to call the servant who typed them or evidence that they were
made in the ordinary course of business. The fact that the documents were in the custody or under
the control of the director in his capacity as such renders the documents prima facie evidence of
their contents and evidence against him.

It should be noted that the provisions of s 385 are additional to, and not in substitution for, any
other legislation which provides for criminal proceedings against corporate bodies and their directors
or servants.15

(5) METHOD OF CITING ACCUSED AND SPECIMEN CHARGES

To bring a corporate body (which is a legal person but not a real one) before the court, some
person must appear. This aspect is covered by s 385(3), under which the State cites a director or
servant to represent the corporate body. Normally a director is cited because he has a very strong
interest in what his company is alleged to have done. There is no reason why the director or
servant cited may not be charged in his personal capacity as well. This would mean there would be
two accused persons, the company and the director, although only one individual will appear in
court.

Where a director or servant is cited as a representative of the corporate body, but is not being
charged in his personal capacity, it is not usual to make him sit in the dock. Where the director or
servant is cited in his representative capacity and, in addition, is charged personally, then the court
may require him to sit in the dock.

SPECIMEN CHARGES

Some specimen charges follow. Note that the head of the charge is set out fully and clearly so that
there can be no doubt as to who is being charged.

(a) Company charged alone by citing a director or servant

Name of accused: X (Private) Limited.

(A decision would have been made, in this example, not to prosecute the director in his personal
capacity, although he could have been charged.)

THE STATE

versus

A, a director of X (Private) Limited, and as such representative of that company

(the company being hereinafter referred to as “the accused”), charged with the
crime of …, in that on the … 19 … and at … the said A, being then a director or

15 CP&EA s 385(11).
11—8 Criminal Procedure in Zimbabwe

servant of the accused, in the exercise of his powers or in the performance of his
duties as a director or servant of the accused or in furthering or endeavouring to
further the interests of the accused, unlawfully … [set out particulars]

(b) Company and a director or servant charged jointly

Accused No. 1: X (Private) Limited.

Accused No. 2: A (a director or servant, who actually committed the offence).

THE STATE

versus

1. A, a director of X (Private) Limited, and cited in terms of section 385(3) of

the Criminal Procedure and Evidence Act [Chapter 9:07] as representative
of that company (the company being hereinafter referred to as “the first
accused”).

2. A, cited in his personal capacity (hereinafter referred to as “the second

accused”).

Charged with the crime of …, in that on the … 19 … and at …, the second

accused, being then and there a director or servant of the first accused and acting
in the exercise of his powers or in the performance of his duties as a director or
servant of the first accused or in furthering or endeavouring to further the interests
of the first accused, unlawfully … [set out particulars]

Note:

(1) As there are two accused, two pleas must be recorded when the accused are called upon
to plead. If the plea is recorded from the individual in only one capacity, the proceedings,
as far as they relate to his other capacity, are a nullity.16

(2) It would be permissible to have another director or servant to represent the company
and, in some circumstances, this may be preferable.

(c) Company and director and servant charged jointly

Accused No. 1: X Limited.

Accused No. 2: A (a director of the company).
Accused No. 3: B (a servant of the company, who actually committed the offence).

THE STATE

versus

(1) A, a director of X Limited, and cited in terms of section 385(3) of the Criminal

16 R v Factors & Engineers (Pvt) Ltd & Ors 1966 RLR 431 (A).
Prosecution of companies, etc 11—9

Procedure and Evidence Act [Chapter 9:07] as representative of that

company (the company being hereinafter referred to as “the first accused”);
and

(2) A, cited in his personal capacity (hereinafter referred to as “the second

accused”); and

(3) B, cited in his personal capacity (hereinafter referred to as “the third

accused”).

Charged with crime of …, in that on the … 19 …, and at …, the third accused,

being then and there a servant of the first accused, and acting in the exercise of
his powers or in the performance of his duties as a servant of the first accused or
in furthering or endeavouring to further the interests of the first accused, unlawfully
… [here set out particulars]; the second accused being then a director of the first
accused and liable in terms of section 385(6) of the Criminal Procedure and
Evidence Act [Chapter 9:07].

Note:

(i) There are three accused and a plea must be recorded in respect of each.

(ii) The presumption laid down by s 385(6) requires that the director and servant must
prove non-participation.

(iii) The charge makes it clear that the State is seeking to rely on s 385(6) of the CP&EA in
the prosecution of the director, but it would not be fatal to omit this if there was not
resultant prejudice to the accused.17

(iv) Once again vicarious responsibility is imposed on the company and, on the conviction
of servant and/or director, the company must be convicted. The converse applies to this
extent, that the acquittal of both servant and director must lead to the acquittal of the
company. If only one is acquitted, the company is still liable to conviction.

(d) Director charged alone with a common law offence

THE STATE

versus

(hereinafter called the accused)

Charged with the crime of …, in that on the … 19 … and at …, the accused,

being a director of X (Private) Limited, a limited liability company incorporated in
terms of the Companies Act [Chapter 24:03], unlawfully … [here set out particulars]

17 S v Bledig & Anor 1974 (1) RLR 100 (A); 1974 (2) SA 613 (RA); A-G v Paweni Trade Corp (Pvt) Ltd (supra) at
40-41.
11—10 Criminal Procedure in Zimbabwe

Note:

The object of specifically mentioning that the accused is the director of a limited liability
company is to make it clear to the court (and the defence) that the State intends making use of
the provisions of s 385(7)(b) of the CP&EA relating to documents, etc, under the custody or
control of the accused.

(6) PLEADING

A director or servant appearing in his personal capacity can plead as he wishes. When he is appearing
in his representative capacity, he may not tender a plea of guilty unless he produces a resolution of
the company authorising him to plead guilty. Without such a resolution, the court must enter a plea
of not guilty.18 The form of authority by an individual director to admit guilt should take the form
of a certified extract from the company’s minute book, containing a resolution which authorises
the director to plead guilty. If the company is wholly controlled by one individual, a certificate
from the individual concerned is sufficient.19

(7) PUNISHMENT

The sentence imposed by the court on a corporate body must be a fine only. This applies even
though the punishment stipulated is imprisonment only.20 However, where a director or servant is
charged alone or jointly with the corporate body, the director or servant may be sentenced to any
appropriate punishment. He must be sentenced to imprisonment if this is the only punishment
provided for the offence.

Any fine imposed on a corporate body may be recovered by the attachment and sale of the corporate
body’s property in terms of s 348 of the CP&EA.21

2. CHARGING MEMBERS OF UNINCORPORATED ASSOCIATIONS

(1) CRIMINAL LIABILITY

Partnerships are most frequently seen in small businesses and in the professions. Other
unincorporated associations are usually found in the form of small social clubs. Partnerships and
other unincorporated associations do not possess a legal identity separate from that of the members.
Accordingly, when debts are incurred or crimes are committed in furthering or endeavouring to
further the interests of the partnership or association, liability falls upon the members themselves,
not on the association. Members of partnerships and other unincorporated associations will be
treated in the same way as any other offender, due regard being had to the degree of participation
in the criminal conduct.

18 CP&EA s 385(3), proviso (i).

19 R v Fruit Growers Distributors (Pvt) Ltd 1966 RLR 103 (G).
20 CP&EA s 385(3), proviso (iv).
21 This is dealt with in Chapter 25, below.
Prosecution of companies, etc 11—11

(2) EVIDENCE AND PRESUMPTIONS

As in the case of prosecution of companies and directors or servants of companies, there are
evidential provisions which aid the prosecution.

(a) Presumption of guilt of member

Where a member of an unincorporated association has, in carrying on the business or affairs of the
association or in furthering or endeavouring to further the interests of the association, committed
an offence, any person who was, at the time of the offence, a member of the association, is deemed
to be guilty of the offence, unless it is proved that he did not take part in the commission of the
offence. Where the business or affairs of the association are conducted by a committee or other
similar governing body, this presumption does not apply to any person who was not a member of
the committee at the time of the offence.22

(b) Admissibility of evidence

Provisions similar to those relating to the admissibility of evidence against directors or servants of
corporate bodies are provided in the CP&EA.

Where a member of an unincorporated association is prosecuted for an offence committed in

carrying on the business or affairs of the association or in furthering or endeavouring to further the
interests of the association:

(a) any record which was made or kept by any member, servant or agent of the association
within the scope of his duties as such; or

(b) any document which was at any time in the custody or under the control of any member,
servant or agent of the association;

is admissible in evidence against the accused member.23 Any such record or document is presumed,
until the contrary is proved, to have been made or kept or to have been under the custody or
control of the member, servant or agent within the scope of his activities as such.24

In order to make use of the provisions of the Act in the prosecution of members of unincorporated
associations, the prosecutor will have to lead evidence that a number of individuals (including the
accused and the person who committed the offence, if that person is not the accused) are in
partnership, or that the governing of the association is in the hands of a committee.

(3) METHOD OF CITING ACCUSED AND SPECIMEN CHARGE

In order for the prosecution to make use of the provisions contained in s 385(8), the charge must
aver the commission of the offence by one member of an association and the vicarious liability of
the member being charged. Unless the charge is drafted in such a manner the prosecutor will have

22 CP&EA s 385(8).
23 CP&EA s 385(9).
24 CP&EA s 385(10).
11—12 Criminal Procedure in Zimbabwe

to prove the actual participation of the second partner.25 A suggested form of charge follows. It
will be seen that the charge is against one or more individuals, not against the association.

THE STATE

versus

(1) A (hereinafter referred to as “the first accused”); and

(2) B (hereinafter referred to as “the second accused”).

Charged with the crime of … , in that on the … 19 … and at … , the first accused,
being then a member of an association carrying on business under the name of
… and in carrying on the business or affairs of that association or furthering or
endeavouring to further its interest, unlawfully … [set out particulars], the second
accused being then a member of the said association and liable in terms of section
385(8) of the Criminal Procedure and Evidence Act [Chapter 9:07].

25 R v Lobenstein 1947(4) SA 362; R v Govind & Ors 1947(4) SA 782 (N).