Culpability for stadium disasters in South Africa
By Max Ebrahim, Consultant and Thomas Henstra, Associate
Clyde & Co
Culpability for stadium disasters in the era of the Safety at Sports & Recreational Events Act, 2 of 2010
On 11 April 2001, spectators poured into the iconic Ellis Park Stadium in Johannesburg for the world famous Soweto derby football match between Kaizer Chiefs and Orlando Pirates. Apparently some 80 000 fans arrived but the venue had a capacity of 60 000. Organisers could not keep up with the flood of people and issued an announcement that tickets had been sold out as the stadium was full. The announcement went unheeded and a crowd of frustrated fans surged to view the action on the pitch. In a resultant stampede, 43 people were tragically crushed to death.
The Ellis Park Stadium disaster, as it came to be known, was the worst sporting accident in South African history. At the time, President Mbeki appointed a judicial commission of inquiry that recommended the introduction of urgent need specialist legislation to regulate safety at high risk, mass events. National Government put together a team tasked with drafting the legislation and, although it took many years to come to fruition, when enacted in 2010 the Safety at Sports and Recreation Events Act, 2 of 2010 ("the SSREA") was heralded as world class. It demanded, inter alia, sophisticated event day risk assessments and risk mitigating planning, safety and security operational planning and safety certification.
Despite this, on Saturday 29 July 2017, history repeated itself. Spectators once again poured in to watch the Soweto derby and again the day ended in tragedy. A stampede caused the death of two fans despite all of the strict protocol and best practice introduced by the SSREA.
In a strange twist of fate, just a day prior to the latest tragedy, the Inquest Court for the District of Cape Town handed down the first judicial pronouncement of how the SSREA operates practically and how culpability may be apportioned under the legislation. The inquest followed from another stadium tragedy that occurred on 7 November 2012 when the US rock band Linkin Park performed at the Cape Town Stadium. At the time, a temporary advertising structure erected out of scaffolding collapsed in high winds killing one concert goer and injuring several others.
The Linkin Park concert was organised under the auspices of the SSREA which, at the time, had been in force for just over two years. In a wide-ranging finding, the inquest Magistrate found evidence of prima facie criminal culpability on the part of three of the role-players involved in organising that event (i.e. the company that put up the scaffolding; the company that designed the banner that was used to wrap the scaffolding and the company tasked with designing the concept and project managing it).
In her finding, the inquest Magistrate confirmed that the SSREA applies to anyone who is a controlling body, an event organiser or a stadium or venue owner and consequently cast roles of responsibility on the South African Police Services (which has specific duties in terms of the Act), the City of Cape Town as the stadium owner, Big Concerts (the concert organiser and its appointed safety manager.
The Inquest Magistrate had to consider not only whether any of the role-players involved in the event's organisation were guilty of some of the specific offences created in terms of the SSREA, all of which carry potential sanctions of between 5 and 20 years imprisonment, but also whether the potential failure to discharge any responsibility under the legislation caused the death that occurred alternatively, whether any of the parties were guilty of culpable homicide. Those exonerated were able to show that either the legislation contemplated some lesser role for them or that they took reasonable steps to comply with their obligations under the legislation.
Event organisers of the recent Soweto derby match appear to be blaming the incident on the distribution of counterfeit tickets. The Premier Soccer League has already appointed a Senior Counsel to investigate the events which led to the deaths and in the fullness of time there will be a criminal inquest, possible criminal prosecution and potential delictual actions. Just as in the inquest into the Linkin Park concert death, a large and complex web of role-players will have their conduct scrutinised against the prescripts of the SSREA.
Organisers, sponsors, local authorities and their indemnity insurers should be aware of the exacting standards demanded by the SSREA and understand the implications of lack of compliance. In the case of the Linkin Park concert, three role-players underestimated what was required of them and the consequences are serious. In time, we will no doubt learn more of what transpired at the match between Kaizer Chiefs and Orlando Pirates and there may then also be serious consequences for those involved.
Clyde & Co acted for the City of Cape Town which was absolved in the inquest proceedings following the death at the Linkin Park concert.
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