Legal accountability’s changing landscape

Anyone who has studied law over the past 30 years will likely feel uneasy when reading modern news headlines on occupational accidents. More recent entrants to the field may not notice this trend.

It is common for an announcement to follow shortly after a serious accident occurs, stating that an arrest warrant has been issued. If the story is followed later, we often see an additional announcement indicating a fine has been imposed. The process seems to progress automatically toward a demand for criminal prosecution related to the accident. In cases of serious motor vehicle accidents, it may even be suggested that the driver who appears to have caused the accident should be (and in some cases has been) charged with murder.

This creates an apparent automatic link: an accident equals prosecution equals a fine. Closely related to this is another development: it is now regularly announced that a regulatory agency has inspected a private sector company and has chosen to impose a fine – often a multi-million-rand penalty – for some transgression of the law or an agency-made rule.

What is missing in this narrative is the thorough investigation by the police and the court proceedings that traditionally followed an incident. Historically, if a prosecution was pursued, it was often followed by the accused’s acquittal; there was no automatic connection between an accident and prosecution. The reason newer law students may not feel this unease is that they have become accustomed to this new approach. 

This situation is quite fascinating. Since the mid-1600s, philosophers have grappled with the question of how human beings acquire knowledge. Thinkers such as Francis Bacon, John Locke, Isaac Newton, David Hume, Immanuel Kant, and John Stuart Mill all addressed this question in their writings.

Locke, a prolific and influential author, regarded his work, An Essay Concerning Human Understanding, as his most significant contribution to philosophy. In this text, he argued that human beings have no innate knowledge; instead, all knowledge is acquired. Thus, older and younger individuals can hold fundamentally different views depending on their experiences.

For instance, before the French Revolution, if an Englishman were asked about the law, he would likely say that Parliament, which met annually, made the laws. In England, this practice had been ongoing since the signing of the Magna Carta in 1215. If you asked a Frenchman, on the other hand, he might appear to be confused, since the French States-General had not convened for 400 years. 

The danger that society now faces is that the accident itself determines the outcome. When an accident occurs, it often leads to imprisonment or financial penalties. Generally, if an accident happens, it should trigger an investigation. If that investigation uncovers potential criminal liability, the matter should be referred to the South African Police Service, which then opens a docket. Upon completion, the docket is sent to the public prosecutor, who determines whether there is sufficient evidence to suggest a violation of established law and whether a summons should be issued in court. The prosecutor must persuade an independent judge of the case’s validity.

Historically, it was very rare for a prosecutor to conclude that a crime had been committed – for two main reasons. Firstly, the accused must have committed the crime. For example, a murderer is someone who carries out the murder, and a thief is someone who steals. In recent years, courts around the world have ruled that crimes can also be committed by omission – that is, a person can be considered a murderer if they do not intervene to prevent a murder. This complicates the definition of who the criminal truly is. 

Secondly, most common law crimes (except culpable homicide) require intention. Negligence, by itself, does not constitute a crime. As previously mentioned, culpable homicide has its own distinct history; it is not derived from Roman Law. The crime of murder existed, with capital punishment as its penalty. This put judges in a difficult position: if the accused was guilty, the death penalty had to be imposed. The alternative was to acquit the accused, which was also often considered unacceptable. As a result, the concept evolved of creating crimes that are less than murder, leading to the development of unintentional but accountable murder. Nevertheless, this was still a rare crime. Over time, the definition of criminality has expanded to include omissions, even without the intention to commit a crime.

Another significant development in the legal system is the ability to settle rather than having the court make a decision. For instance, consider the efforts by lawyers to hold cigarette companies accountable for health claims related to smoking. These companies defended against the allegations, and in the cases where they could reach a settlement, they opted to resolve the matter out of court. As a result, compensation was provided to the injured parties without any court intervention.

This raised the question: if money could be agreed upon and distributed to injured parties without court involvement, why couldn’t it also be allocated from the companies to the state outside of court? Consequently, various state attorneys general collaborated to sue tobacco companies, which led to the 1998 Tobacco Master Settlement Agreement. Under this agreement, the tobacco companies committed to paying US$206 billion. As a result, the issue was resolved without any court decision or determination under the law. 

If civil cases can be settled by agreement without involving legal decisions or court rulings, why not apply the same principle to criminal matters? In the United States, for example, the vast majority of criminal cases are resolved through plea bargaining, which is a settlement between the accused and the state, with minimal involvement from the law and courts. 

Liability of corporate executives

Historically, criminal liability was based on explicit and intentional conduct that violated established laws, and these allegations were addressed through due process in a court of law. However, the new approach has opened the door to other forms of liability for corporate executives. Traditionally, when a company engaged in an action, it was considered the company that acted, not any individual within it. Consequently, individual corporate employees and executives were shielded from personal liability. This dynamic has shifted in today’s environment of ambiguity and reduced due process. 

We are now witnessing corporate executives being held liable even for accidents. Legally, this was not previously possible. Some legal experts argue that the corporate veil protects corporate executives; however, this is not entirely accurate. The corporate veil separates shareholders from creditors, not managers from third parties. A recent example from the UK illustrates this shift: a Barclays executive was fined R42 million and banned from holding any senior executive position in the industry. The basis for this action? The allegation that he did not accurately disclose his relationship with the disgraced Jeffrey Epstein. Importantly, this fine and ban were not imposed by a court of law.

Current situation

We find ourselves in a new reality where, following a serious accident, the prevailing logic is that someone must be to blame. There is a strong belief that someone is responsible for the incident and should therefore be held accountable. Increasingly, the established legal framework and court systems are losing influence in these matters. Consequently, someone is held liable, often to the benefit of regulators worldwide. For instance, Nigerian regulatory authorities imposed a US$5.2 billion fine on MTN for allegedly failing to disconnect unregistered users from its network. Similarly, the Barclays executive faced a personal fine of R42 million. 

While this may reflect the current state of affairs, it creates a sense of unease for those who have studied the law and its traditional principles.