S v WEALE & ANOR 2014 (2) ZLR 252 (H)

Flynote

Criminal law — offences under Criminal Law Code — culpable homicide — liability — accident on boat — master of vessel responsible for ensuring compliance with regulatory provisions and for driving the boat — whether other members of crew can be held liable for deaths caused by master's breaches

Statutes — Inland Waters Shipping Act [Chapter 13:06] — master of vessel — responsibility for loading of vessel and ensuring compliance with regulatory requirements — accident resulting in deaths of passengers deaths due to failure to comply with requirements — master liable

Headnote

The two appellants had been jointly charged, along with two other persons, with culpable homicide, following an accident in which a boat capsized and 11 of the passengers drowned. The boat was overloaded, carrying three times as many passengers as it was allowed to. No life jackets were carried on the boat. The particulars of negligence relied on by the State were that: (a) the passengers were not supplied with life-saving appliances; (b) the boat was carrying more passengers than required (over-loaded); and (c) failure to keep the boat under proper control.

The appellants worked for the owner of the boat, but contended that neither was in command of the boat, and the second appellant was not even on the boat when the accident occurred. The first appellant had, it was a found, announced to the passengers that he was the captain, although in fact he was not the driver of the boat. The second appellant was found liable on the basis that he had helped overload the boat.

Held, that the simple question was whether, other than the captain or master of a boat or ship, anyone else could be held criminally liable for a boating accident. The principle nullum crimen sine lege, which underpins the principle of legality in our criminal law, has gradually crystallized into an immutable principle of law in every civilized society. This principle, which has been adopted in the criminal codes of several countries, is aptly captured in the statement that "a deed can be punished only if its criminality had been lawfully provided prior to its commission." Any decision on whether the appellants are guilty of a crime ought to be madewithin the strict confines of the applicable law at the time. The State preferred charges of culpable homicide, relying on specific particulars of negligence. The State did not refer to the Inland Waters Shipping Act [Chapter 13:06] or the regulations made thereunder.

Held, further, that in terms of s 2 of the Act, the definition of "master" is a person having command or charge of a vessel. A person employed in a vessel, other than a master, is termed "crew". In view of the length of the boat, s 42 of the Inland Shipping Regulation 1971 (RGN 832 of 1971) required one life jacket to be carried for each person legally on board. The responsibility of ensuring compliance with the loading capacity lay with the person in charge, who, in the present case, was the master or captain of the boat. This person was the person sailing or driving the boat. Naturally, he would be liable for any failure to keep it under proper control. The allegation of failure to keep the boat under proper control applied to him, but could not apply to the appellants.

Held, further, that besides considering the common law concepts on culpable homicide, the magistrate ought to first have regard to the law governing inland shipping vessels. The statutory provisions would have directed him as to who was primarily responsible for what, as set out in the Act and regulations, and then apply, if he had to, the concepts governing negligence against those individuals who bore the legal or criminal responsibility in such situations. Had he carried out this exercise, he would have realised that, as the law stands, only the master or captain or person in charge is criminally liable for any mishap on a water body. The person in charge is legally obliged to ensure that the number of people carried did not exceed the legal limit (s 39 of the Regulations). He decides if there has been compliance with the law before the boat sets sail. He is knowledgeable on the law governing the vessel. Such a vessel would not venture into the water without his permission. If he is not, for any reason, satisfied about the mechanical fitness of the vessel, he has the power to cancel the trip onto the water. Therefore he, and only he, bears all the responsibility for the safety of both the passengers and the crew. The concept of foreseeability in negligence could hardly be applicable where it could be intertwined with the nebulous concept of common purpose. These two concepts have different requirements in respect of mens rea. There would have been a requirement to allege common purpose, if all crew members were criminally liable, in order to secure a conviction for culpable homicide in a boating accident. This would be near impossible. Even upon a proper application of the concept of foreseeability, the court a quo had to be satisfied that it was reasonably foreseeable to both appellants that their conduct would result in the death of the deceased persons. In other words, there had to be a causal connection between the acts or omissions of the appellants and the death of the deceased persons. The evidence was just not there.