Bus owners must not steer clear of accountability

INLSA

HIGHWAY HORROR: 19 bodies lie side by side at the scene of the horrific bus accident which happened last month on the R59 highway off-ramp near Meyerton. Picture: Antoine de Ras

The death of 22 people in Mpumalanga on Thursday morning in a horrific train and truck accident, which comes on the heels of a Putco bus accident in Meyerton three weeks ago, shows that indigent public transport users are very vulnerable.

Accidents involving buses are a major factor in fatalities on SA roads.

East of Pretoria, the Moloto Road has been the scene of many fatal accidents, often involving Putco buses.

There are about 3,9 million public transport commuters in SA, according to the national Department of Transport.

Of these, about 2,5 million use taxis, accounting for up to 67,9 percent of the total trips.

Bus services account for another 22 percent, with the balance transported to work by train.

The South African Bus Operators Association (Saboa) has more than 20 000 buses.

About 15 000 of those buses are used for public transport and 5 000 are used by private companies to transport their employees free of charge.

An overwhelming majority of these commuters do not have the choice of which mode of transport to use.

The taxis and buses on the roads are their only available, affordable mode of transport.

As was seen in recent high-profile accidents, most of the passengers who die on our roads do so while on their way to or from work.

Although some of the drivers have been criminally charged with culpable homicide and/or murder, it is seems that not enough importance has been given to road safety.

This has led to calls for stricter measures to enforce the safety of public road users.

While the government has introduced speed reduction measures from 120km/h to 100km/h for buses on national roads, the number of fatal accidents has not dropped.

This has led to questions about whether anything is seriously being done by the authorities to prevent the large number of fatalities on our roads.

Perhaps it is necessary to probe the extent to which transport operators and owners should carry the blame and be held liable for the death of passengers.

SA’s regulatory framework ensures that every employer must take full responsibility for the unlawful actions and conduct of employees who act within the scope of their employment.

This means that if an employee negligently harms or injures another person, that person (or the family of the deceased) may sue the employer for damages suffered.

The employer need not be at fault in any way, but the unlawful conduct of the employee is transferred or imputed to the employer.

While such fault, in the instance of civil and income liability is largely transferred to the Road Accident Fund (RAF), it is about time that jurisprudence is extended to apportion criminal liability to public transport operators, especially in instances where the drivers don’t survive the accidents.

It should be the fundamental responsibility of the owners of the bus companies to ensure that their buses are roadworthy.

After all, it is the bus owners and not the employees who derive profits and benefit from the thriving transportation business.

Owners of these companies should not be exonerated from the overriding obligations for the safe transportation of passengers.

Failure to do so constitutes gross dereliction of duty and neglect of their fiduciary responsibilities as directors of the company.

While legislative review must be conducted to give effect to this, the National Prosecuting Authority should, on the basis of evidence demonstrating negligence and recklessness, consider charging the company bosses with criminal liability on the basis of extended vicarious liability for the actions of their employees.

Although the practice of holding one person liable for the actions of another is the exception and not the rule in criminal law, our courts have the opportunity and the jurisdiction to act in the public interest. Our courts further have the authority to extend the doctrine of criminal liability in this instance.

For example, following the death of 10 schoolchildren at a level crossing in 2010, the Cape High Court convicted the taxi driver, Jacob Humphreys, of murder and not culpable homicide.

l Thabo Masombuka is a legal, socio-economic transformation practitioner and executive director of Florytouch, an empowerment advisory firm based in Roodepoort.