Du Plessis v S (A232/2017) [2018] ZAGPJHC 607 (29 October 2018)

Du Plessis v S (A232/2017) [2018] ZAGPJHC 607 (29 October 2018)

The court held that section 332(5) of the Criminal Procedure Act imposes criminal liability on directors or servants of a company for offences committed by the company unless they can prove they did not participate and could not have prevented the offence. The appellant, as financial director and previously as employee, was responsible for submitting VAT returns and ensuring payment to SARS. The evidence showed that the appellant participated in the submission of VAT returns and was aware of the decision to use VAT funds for other debts, with the intention to pay SARS later. The court found that this internal arrangement did not constitute impossibility of performance and did not absolve...

Citation
[2018] ZAGPJHC 607
Parties
Appellant: Johannes Christopher Du Plessis; Respondent: The State
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 October 2018
Case Number
A232/2017
Procedural Posture
Criminal Appeal / Appeal Against Conviction
Outcome
Appeal dismissed; conviction and sentence confirmed.
Judges
Twala, Matsemela
Legal Topics
Director Criminal Liability, Value Added Tax Act, Failure to Submit Vat Returns, Personal Liability of Directors
Criminal Law Tax Law Director Criminal Liability Value Added Tax Act Failure to Submit Vat Returns Personal Liability of Directors

Case Brief

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Parties

Johannes Christopher Du Plessis

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction

Legal Issues

  1. 1 Whether a director or servant of a company can be held criminally liable for the company's failure to submit VAT returns and pay VAT to SARS.
  2. 2 Whether the appellant, as financial director or employee, falls within the ambit of section 332(5) of the Criminal Procedure Act.
  3. 3 Whether the appellant's conviction on count 1 should be set aside due to his appointment date.

Ratio Decidendi

The court held that section 332(5) of the Criminal Procedure Act imposes criminal liability on directors or servants of a company for offences committed by the company unless they can prove they did not participate and could not have prevented the offence. The appellant, as financial director and previously as employee, was responsible for submitting VAT returns and ensuring payment to SARS. The evidence showed that the appellant participated in the submission of VAT returns and was aware of the decision to use VAT funds for other debts, with the intention to pay SARS later. The court found that this internal arrangement did not constitute impossibility of performance and did not absolve...

Court Disposition

Appeal dismissed; conviction and sentence confirmed.

Orders

  • The appeal is dismissed.