Theft by corporate controllers

Abstract

The pillaging of companies by those who control them is becoming a common occurence in South Africa. The problem arises where those in control of a company are its sole shareholders and the property they are charged with stealing, though not legally belonging to them, is vested in an entity which itself belongs to them. One defence is that there can be no theft where the company consents to the appropriation of its funds. It is argued that a theft is committed only where all the criminal elements of the crime of theft are satisfied, notwithstanding the consent, or absence thereof, by the company. Case law indicates that a conviction depends on the : solvency or insolvency of the company; degree of control and victim of the appropriation. It is submitted that it is inappropriate to base a conviction on these criteria. All abuses of the corporate structure should be punished.