Strict penalties proposed for corporate homicide

Proposed new legislation that merges the Occupational Health and Safety Act No. 85 of 1993 (OHSA) and the Mine Health and Safety Act No. 29 of 1996 (MHSA) threatens to impose draconian penalties on corporations and frighten away foreign investment in the country, warns pre-eminent mining and health and safety lawyer Willem le Roux. During 2005 the Department of Labour drafted the National Occupational Health and Safety Bill (NOHSB), which has now been released to the public. If passed, this bill will establish corporate homicide as a criminal offence in South Africa. It also says that corporate homicide is not a substitute for culpable homicide, which means that corporations (companies and close corporations) may be charged with both. The NOHSB will also merge the OHSA and the MHSA, which along with the Criminal Procedure Act of 1977 currently define the extent to which corporations can be held liable for their employee's actions. "In terms of the South African common law, corporations cannot be held criminally liable. For that reason legislation had to be created for that purpose," the Brink Cohen & Le Roux director tells Mining Weekly. He explains that under section 332 of the Criminal Procedure Act, which currently regulates the criminal liability of corporations, blame can be attributed to a corporation for the intentional or negligent actions or omissions of an employee (worker of mandatory) carried out "in the exercise of his powers", or "in the performance of his duties", or "in furthering or endeavouring to further the interests" of the corporation. It is understood that corporations can only act through the agency of human beings, but the provisions of the new bill are problematic. "Corporate homicide is exactly what it says. It applies to corporate bodies," insists le Roux. Section 121 (3) read with section 125 of the NOHSB states that natural persons may not be held liable for corporate homicide. On the other hand, the penalty clause in the NOHSB makes provision for a maximum fine of R1 000 000 or ten years imprisonment in respect of a contravention. This "bad and contradictory drafting" in the penalty clause troubles Le Roux. You cannot imprison a corporate body," he says. It is unclear then whether the intention behind the ambiguous proposal is to hold executive-level managers liable for corporate homicide. Corporate criminal liability in South Africa is already much more stringent than it is, for instance, in the UK and most western world jurisdictions. Le Roux points out that, in terms of the proposed Corporate Manslaughter and Corporate Homicide Bill in the UK, a corporation will only be held liable for corporate homicide if the way in which its activities are managed or organised by its senior management constitutes a gross breach of the duty of care and resulted in the death of a person. In terms of provisions set out in the NOHSB, a corporate body has a duty to ensure the health and safety of any person. Section 121 states that a corporate body commits corporate homicide if a person dies as a result of the corporation's failure to comply with the relevant duties outlined in the bill, to take the necessary steps to control the fatal risk, or to implement a safety management system. "The problem in terms of this proposal is that it introduces a form of strict liability where the absence of negligence and intention on the part of the corporation, or the employees whose conduct is imputed to the corporation, will be no excuse. As soon as there is a breach of health and safety obligations which results in the death of an employee the corporation will be held liable," explains le Roux. With the NOHSB there is no room to avoid complete responsibility for not ensuring health and safety in the occupational environment. Le Roux says that the new bill is not only unreasonable in this respect but it is "probably unconstitutional." "The legislators went overboard here," he adds. The bill does not impose best practice as a standard but, in fact, requires a higher standard of total compliance. "It will be a very sad state of affairs if the legislation is introduced with this ultimate, very stringent, safety criterion because it will chase away most investors." Furthermore, he suspects that it will become very difficult to encourage someone to assume a managerial-level position of responsibility at a mine or a factory in the kind of legal environment that makes them personally liable to fines or imprisonment. South Africa already has a statistically higher rate of occupational accidents than Europe, for example. Numerous factors are responsible, not least language difficulties, illiteracy, environmental dangers, the skills shortage as well as less quantifiable variables such as poor education and general complacency on the part of certain employers and employees. The strict liability imposed by the NOHSB contrasts with both the OHSA and the MHSA, which incorporated the safety criterion of reasonable practicability. Le Roux insists on this criterion as a fundamental tenet of law. "Provided that a corporation takes measures which ensure safety and health as far as reasonably practicable, such measures absolve the corporation from liability," he explains. ‘Reasonableness' also forms part of the common law, in terms of which a corporation can only be held liable for culpable homicide for the conduct of an employee if such conduct deviated from what could have been expected of a reasonable person in the same or similar circumstances. "It is absolutely draconian," le Roux concludes of the proposed bill. "Most accidents occur as a result of human conduct. The proposed legislation effectively makes of people automatons, ignoring human nature and imposing liability on corporations for such conduct."