THE HIGH COURT OF SWAZILAND
Case No. 6/96
the matter between:
Observer & 4 others
THE APPELLANTS Mr. Shilubane
THE RESPONDENT Mr Nsibande
five Appellants were charged in the Subordinate Court for the
district of Hhohho held at Mbabane on various counts arising out of
the business conducted by the first Appellant. The business of the
First Appellant is the publication of a daily and weekend newspaper
commonly known as the Observer, a well known and widely circulating
is surprising that a prosecution for relatively minor offences
involving no complex legal or evidential problems received the
personal attention of the Director of Public Prosecutions who
appeared for the Crown at the trial.
first two counts allege contraventions of 173(2) of the Criminal
Procedure and Evidence Act and section 185 bis (3)(c) of the same
act. The remaining charges allege contraventions of the Books and
Newspapers Act 20/1963 on a continuous basis from February 1984 to
the present time.
the prosecution was delayed for eleven years during which time the
first Appellant carried on its business without its alleged breaches
of the provisions of the act being brought to its attention with a
polite request to put its house in order is difficult to fathom. Why
no admission of guilt was fixed is not apparent.
first problem with which we have to deal on appeal is the citation of
the appellants. In this connection I will first consider the position
of the company THE SWAZI OBSERVER (PTY) LTD which was the first
procedure for the charging of a compary with a criminal offence in
the kingdom of Swaziland is antiquated and uncertain. The relevant
sections of the Criminal Law and procedure Act 67/1938 appear to have
remained unamended since originally enacted. Corresponding provisions
in the South African Act have been amended from time to time to
accommodate the difficulties which were experienced.
332 of the South African Act provides a detailed procedure for
bringing a company before a court to answer criminal charges which
find no parallel in the Swaziland legislation.
first section to which reference must be made is the section relied
upon by the Crown in citing the First appellant in the manner it has.
This section provides that if it is necessary in any indictment or
summons to name any company, firm or partnership, it shall be
sufficient to state the name of such company, or the style or title
of such firm or partnership without naming any of the officers or
shareholders of such company, or any of the partners in such firm or
section as will readily be seen has nothing to do with the question
as to who is to represent an accused company in court to answer and
plead to the charge. The problem was raised in the court a quo but
dismissed by the magistrate with little ado. The charges were put to
the accused and in each case accused number two was called upon to
answer for number one accused. He answered not guilty. Proof of his
authority to represent and speak for the company was not sought or
company acts through its board of directors and no individual
director has the authority to represent the company in any
transaction without the authority of the Board. In this case not only
was it not alleged that the second Defendant had the authority of the
board, no evidence was at the stage of plea, before the court to
establish that he was a director of the first Appellant, let alone
that he had authority as such to plead to the charges on behalf of
the company. In this connection a decision in the Transvaal
Provincial Division of the Supreme Court of South Africa is
instructive. I refer to S V STOJILKOVIC 1995 (2) SA 951 (T) a full
court decision, dealing with a situation similar to the present, but
where of course section 332 (2) (a) of the South African Act applied.
A conviction was set aside or review because there had been no
compliance with the provisions of that section as there had been no
proof of authority vested in the individual who pleaded on behalf of
the accused close corporation.
332 (2) provides that in any prosecution against a corporate body, a
director or servant of that corporate body shall be cited, as
representative of that corporate body as the offender, and thereupon
the person so cited may, as such representative, be dealt with as if
he were the person accused of having committed the offence in
Is no legislative provision similar to this to assist the prosecution
in Swaziland, where although a company or other body corporate may be
charged there is no way of dealing with the accused company unless
the company itself vests the authority in an individual. The
prosecution itself however has no power to cite an individual as
representative of the company and to vest In him the power to act on
behalf of the company.
South Africa this power of the prosecution to nominate a
representative comes from the provisions of Section 332 (2). In the
absence of similar provisions this power does not exist in Swaziland.
This does not mean that a company cannot be charged in the sense of
being cited in a summons or indictment. All it means is that having
been served with a summons or indictment there is little the
prosecution can dc to secure a conviction if the company itself
ignores the document and does not appoint and authorise a
representative to appear on its behalf at the trial.
however is the reason for the provisions of section 339. While the
company itself may because of this be incapable of being convicted,
certain officers of the company may be cited together with the
company and liable to be punished unless it is proved by the party so
cited that he did not take part in the commission of the offence and
could not have prevented it. This is the purpose and effect of
Section 339 (1) of the Swaziland Criminal Law and Procedure Act.
that section does not do, is to provide that the prosecution in
citing the company may name one or more of its officers to represent
the company. The only way in which this difficulty can be overcome is
for an amending act to be passed by which section 339 is substituted
with a new section in the same terms as Section 332 of the South
follows from the above that the first appellant was not properly
before the court. The convictions and sentences imposed upon it
cannot stand and will have to be set aside. This conclusion to which
I have come finds support in the decisions
v Darwin Supply Stores (Pty) Ltd 1957 (2) SA 519 (SR)
v STOJILKOVIC* 1995 (2) SA 951 (T)
v Lark Clothing (Pty) Ltd 1973 (1) SA 239 (K)
turn now to the remaining appellants who are individuals as opposed
to a corporation.
who as servants of a company and by their own acts commit any crime
within the scope of their employment and while about the business of
the company which is their employer, incur criminal liability
personally, and their employer may be vicariously criminally liable
338 (1) of the Criminal Procedure and Evidence Act 67/1938 provides:
any criminal proceedings under any statute or statutory regulation or
at common law against a company, the Secretary and every director or
Manager or Chairman thereof in Swaziland may, unless it is otherwise
directed or provided, be charged with the offence and shall be liable
to be punished therefore unless it is proved that he did not take
part in the commission of such offence, and that he could not have
provision widens the scope of liability. An individual may in terms
of the section quoted be criminally liable and punished for criminal
acts carried out by other individuals who were servants or officers
of the company notwithstanding that he himself took no active part
therein. This is the converse of the vicarious criminal liability
observed in the preceding paragraph.
examining the charges in this case the distinction must be borne in
company, accused No. 1, was charged eo nomine simply as "THE
SWAZI OBSERVER" both in the summons and in the amended charge.
There was no allegation that any individual represented the company.
Indeed it does not appear that any individual was authorised to
represent the company or act on its behalf in relation to the
prosecution. For this reason we have seen the prosecution against the
company has to fail as it was not before the court.
of the other accused persons was "cited both in his personal and
his representative capacity as......" of the company. The
capacity of Ace 2 was said to be that of Managing Director and the
other accused 3 through to 6 were said to be servants of the company.
This method of citation reveals a complete lack of appreciation on
the part of the draftsman of the distinction between direct and
of the individuals was in fact a representative of the company, one
wonders whether these alleged representative were to consult each
other or the directors as to how the case was to be defended. There
was no resolution of the Board of Directors appointing any of the
persons concerned to represent the company.
far as vicarious liability of the individuals is concerned Section
338 applies only to "the Secretary and every director or Manager
or Chairman........" Only Accused No. 2 is alleged to be one of
these namely a "Managing Director". The remaining
individual accused as mere servants are not brought into the ambit of
the operation of sec 338(1).
has been held in South Africa S v Freeman 1970 (3) SA 700 (N) that
Section 381 (5) of act "56 of 1955, which is the equivalent
counterpart of S338(l) can only be relied upon by the prosecution if
it is conveyed to the accused in the charge sheet that vicarious
liability is relied upon, with particulars thereof. We see no reason
to differ from this view.
only did the prosecution omit and fail to make any such mention but
it also refused to furnish the particulars which were requested.
view of this inept prosecution not only must the company accused No.
1 succeed in its appeal but the remaining individual accused must
convictions of all the accused on all the charges on which they were
found guilty and the fines and sentences imposed are set aside.
SAPIRE J.M. MATSEBULA