September 14, 2017

South Africa - Culpability for Stadium Disasters

The incident that saw two fans crushed to death at South African Breweries' flagship Carling Black Label Cup on 30 July 2016 is a tragic case of déjà vu for those that recall the infamous Ellis Park Stadium Disaster. However, as the organisers and sponsors of a 2012 Linkin Park rock concert at Cape Town Stadium will attest, severe consequences may befall role-players at these events when disaster strikes.

On 11 April 2001, spectators poured into Ellis Park Stadium in Johannesburg for the famous Soweto derby football match between Kaizer Chiefs and Orlando Pirates. Organisers could not keep up with the flood of people and a crowd of frustrated fans created a stampede in which 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. A commission of inquiry recommended the urgent introduction of 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 some years to come to fruition, the Safety and at Sports and Recreation Events Act, 2 of 2010 ("the SSREA") was heralded as world class when enacted. It demands, inter alia, sophisticated event day risk assessments, risk mitigating planning, safety and security operational planning, and safety certification. 

Despite this, on Saturday 29 July 2017, history was repeated in that spectators once again poured in to watch a match between Kaizer Chiefs and Orlando Pirates, this time a special exhibition match put on by South African Breweries to promote their Carling Black Label brand, and again the day ended in tragedy. On this occasion a stampede caused the death of two fans.

In a strange twist of fate, just a day prior, 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 structure advertising the Lucozade brand erected out of scaffolding, at the instance of GlaxoSmithKline, 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 the Lucozade “activation” (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).

The Inquest Magistrate not only considered whether any of the role-players involved in the event's organisation were guilty of any of the specific offences created in terms of the SSREA, which carry potential sanctions of 5 to 20 years imprisonment. She also considered whether the failure to discharge a responsibility created by the legislation in fact caused the death that occurred.  In addition, she had to consider whether any of the parties, including the sponsor of the event GlaxoSmithKline, was criminally guilty of culpable homicide.  On the facts, GlaxoSmithKline was exonerated but three other role-players were found prima facie guilty of culpable homicide.

Event organisers of the recent Carling Black Label Cup appear to be blaming the incident on the distribution of counterfeit tickets. The Premier Soccer League has already appointed a Senior Advocate to investigate the events and in the fullness of time there will be a criminal inquest, possible criminal prosecutions and civil 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 Carling Black Label Cup and there may then also be serious consequences for those involved.

Companies and brands that involve themselves in events of this nature are, almost unwittingly, exposing themselves to a multitude of risk factors that are not easily foreseeable to those in a corporate environment. This underscores the importance of taking proper advice and cooperating closely with in-country experts.

Clyde & Co acted for the City of Cape Town which was absolved in the inquest proceedings following the death at the Linkin Park concert.

Published  in Commercial Risk Africa on 13th September 2017: http://www.commercialriskonline.com/culpability-stadium-disasters/