Dear Subscribers
I hope this mail finds you well and gearing up for my workshops on, inter
alia, the draft National Occupational Health & Safety Bill.
I am continuing to dissect the Bill and know that Chapter 7 entitled
“Offences & Penalties’ will be of particular interest. As you may know from
a previous newsletter, the Bill does introduce the new criminal offence of
Corporate Homicide.
Section 121 states :
A corporate body which is under a duty to ensure the
health and safety of any person in terms of any provision of Chapter 2 of
this Act commits the offence of corporate homicide if a person dies and the
death was due to the failure of the corporate body –
(a) to comply with a duty in terms of Chapter 2; or
(b) to take the necessary steps to control the risk that caused the death;
or
© to implement a safety management system.
(2) It is not a defence to a charge in terms of this section that the person
died as a result of an act or omission of any individual.
(3) Sections 124 and 125 do not apply to a prosecution in terms of this
section.
(4) This section does not exclude the prosecution of any person for the
offence of culpable homicide and a charge in terms of this section is a
competent alternative charge in a prosecution for culpable homicide.
Obviously from the title of this new crime we know that it is limited to
corporate bodies or companies as opposed to natural persons or individuals.
Furthermore that it is not a crime of intention (such a murder) and that it
can only be imposed if someone dies. The question is. How does it differ
from the crime of culpable homicide (the negligent killing of a person)
which, in terms of
section 332 of the Criminal Procedure Act, may be imposed upon a
corporate body? We know that it does not substitute the common law crime of
culpable homicide in view of subsection (4) (above) which essentially makes
corporate homicide a competent alternative charge to culpable homicide.
Corporate homicide does not apply if
Section
124 is invoked. This section is similar to
section 37 of the OHS Act. It potentially
imputes liability onto employers for the crimes of their employees or
mandataries. It makes sense that an employee (natural person) cannot
be charged with corporate homicide but a mandatary could be a corporate
body? The same argument applies to
Section
125 of the Bill.
Corporate homicide will be a statutory offence, a less serious offence than
the common law crime of culpable homicide. It will carry a maximum penalty
of R1 000 000 (one million Rand) or ten years in jail. There is no set
penalty for culpable homicide and the jurisdiction of the court determines
the maximum penalty. Prosecutors are duty bound to charge an accused with
the most serious possible offence and, in the event of a fatal
workplace-related accident, albeit due to the negligence of an employer in
failing in a duty imposed by the Act, suppliers of articles or substances,
persons in control of workplaces or machinery etc, they (the prosecutors)
must charge corporate bodies with culpable homicide, alternatively corporate
homicide and then alternatively or additionally, charges under the National
Occupational Health & Safety Act. (Normally these charges pertain to the
failure to discharge a duty similar to
sections 8,
9 or
10 of the OHS Act. Sections 5 to 13 of the
MHS Act. Naturally a person, representing the corporate body, will have to
stand in the dock and plea and / or testify on behalf of the corporate body.
If a corporate body is charged with culpable homicide and the evidence is
loaded against the accused, the corporate body, via its representative in
the dock, may wish to offer a guilty plea of corporate homicide as a plea
bargain since it is less serious than the main charge. (Normally the
corporate body accused is charged as represented by the CEO but he / she may
be substituted via a Board Resolution which is submitted to court). Then
someone else stands in for the corporate body. This happens routinely where
corporate bodies are charged.
If corporate homicide is not a crime of intention then it must be a crime of
negligence. (Failure to act as a reasonable person). We know that the
offence is triggered if a person dies and the death was due to the failure
of the corporate body to :
(a) to comply with a duty in terms of Chapter 2; or
(b) to take the necessary steps to control the risk that caused the death;
or
© to implement a safety management system.
In my view failure to comply with a statutory duty or to control a risk that
caused the death would normally be sufficient to build a case of negligence
against a corporate body but (c) is questionable. All crimes have elements.
Fault, in the form of intention or negligence, an act or an omission,
unlawfulness and a casual connection. Or are we looking at strict liability
where, if a person dies at the workplace and there is no safety management
system, the corporate body is automatically guilty of corporate homicide? In
other words there need not be a link to an act or omission of the part of a
corporate body and the fatality - but the mere fact that health and safety
representatives / committees weren’t in place would be sufficient to trigger
this crime?
