Corporate homicide

• Jurisdiction: South Africa
• Pages: 141-157
• Published date: 03 September 2019
• Author: Alan Rycroft
• Date: 03 September 2019
• Citation: (2004) 17 SACJ 141

ARTICLES

Corporate Homicide

ALAN RYCROFT*

Abstract

South African law treats corporate homicide in a differential manner to other forms of

culpable homicide. In particular, the limitations on delictual remedies prejudice the

dependants of a deceased employee. It is the argument of this article that a more

vigorous intervention by criminal law agencies is needed to bring about corporate

resolve to avoid workplace deaths. The current limitation of criminal sanctions to a

fine is explored and compared to other innovative sanctions which have the potential

to both deter and rehabilitate corporate offenders. Beyond punishment, there is a

need for pre-emptive measures, such as the development and adherence to Codes of

Good Practice, to create new norms and develop corporate vigilance and

responsibility.

Introduction

Standing at the intersection of criminal law, corporate law and labour law is

an abiding legal and social problem: how should the law deal with

workplace deaths caused by the negligence or recklessness of a corporate

employer? The problem is far from academic: an average of 250 000 accidents

have been reported annually for the past 5 years.' Although official statistics

fudge the precise number of workplace fatalities, it was reported that in

workplaces of exempted employers alone there were 845 fatalities.

2

In the

first quarter of 2002 there were 150 deaths in mines.

3

Despite the seriousness

of this record to the country

4

and for the families of a deceased employee,

* BA (Rhodes) LLB (Natal) LLM (London)

Professor, School of Law, University of KwaZulu-

Natal, Durban.

1



Annual Report of the Compensation Fund for the Financial Year ended 28 February 2002 at 11; the

Department of Labour Annual Report 2000/2001 reported a 9% increase in fatalities in that year.

2

Annual Report of the Compensation Fund for the Financial Year ended 28 February 2002 at 18.

3

L Blackburne 'Plan to tackle high mine fatalities'

The Sunday Independent

23 June 2002. The

2001-2002 Mine Health and Safety Inspectorate Annual Report gives a figure of 298 fatalities in

the mining industry in South Africa in 2001 —

http://www.dme.gov.za/publications/pdf

/annual_reports/executive_summary.pdf,

accessed on 28 June 2004.

4



Minister of Labour, Membathisi Mdladlana, was reported in 2001 as saying: 'A further frightening

statistic is that during 1996 alone, the cost of occupational acddents to the economy was

estimated to be about 3,5% of our gross domestic product — a staggering R17bn.'

141

(2004) 17 SACJ 141

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142



SACJ •

(2004) 17

only occasionally does a death result in a criminal prosecution.

5

Corporate

responsibility, although mainly delictual, is now firmly on the agenda: a class

action claim of $5 billion is faced by Gold Fields in the United States of

America for negligence to workers.

6

The outcome of this litigation has the

potential to rewrite the South African law on corporate employers'

liability. The most obvious reason why workplace deaths have traditionally

been viewed and treated differently from culpable homicide outside the

workplace is that they are viewed as 'accidents': somehow inevitable,

somehow the price we must pay for the mines and factories that will make

the economy thrive.

7

The acceptance of workplace deaths tends to confirm

that 'contrary to what many would claim, society does not value human life

above all; it is willing to accept a degree of hazard as the price of pursuing

other goods'.

8

And yet it has been observed that the treatment of corporate

killing by the legal system is particularly problematic in that there is a general

recognition that the law fails to satisfy public opinion when it seeks to deal

with death which is brought about by gross negligence in the exercise of a

lawful pursuit such as commerce and industry.

9

As Wells points out, drawing

a line between crime and regulation has a powerful ideological impact and

acknowledging the ideological dimension of their separation from conven-

tional crime is crucial to a productive consideration of corporations and

criminal responsibility.

10

More than this, the policing mechanism for workplace deaths is the labour

inspectorate, dealing with a possible breach of regulations, as opposed to an

investigation by the police of a crime. We are, in this way, persuaded that a

workplace death is a regrettable but understandable occurrence. In the

United Kingdom it has been commented that this marginalisation of

corporate crime is reinforced by the procedures adopted at inquests into

5



There are, of course exceptions. In January 2004, a new date was set for the trial of the owners

and operators of boats at Zoo Lake, following the accidental drowning of two pupils there in

2001. Standing trial will be the boat owners, the Lions Club of Johannesburg North, and the

boat operators, Patrick Khumalo and James Ngwenya. The charges are culpable homicide and

contravening Occupational Health and Safety Act (OHSA). It is alleged the children were not

wearing life jackets at the time of the accident (Sapa).

6

Business Report

18 May 2003.

Cf D Bergman

Deaths at Work: Accidents or Corporate Crime?

(1991); even the recognised

defences to a wilful violation of safety standards causing death in terms of the United States

Occupational Safety and Health Act 29 USC (2000) reinforce the notion of 'accident'. See

`Employment-Related Crimes' in (2002) 39

American Criminal Law Review

355 at 363 which lists

`isolated occurrence', 'impossibility of compliance', and 'greater hazard' as possible defences.

8



G K Wilson

The Politics of Safety and Health

(1985) 1; cf A J Rycroft 'Criminal sanctions and

labour relations' (1989) 2 SACJ271-85.

9

A Ridley and L Dunford 'Corporate killing — Legislating for unlawful death?' (1997) 26

Industrial Law Journal

(UK) 99 at 102.

10 C Wells

Corporations and Criminal Responsibility

2ed (2001) 21.

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