Introduction
‘Compliance’ can mean many things. For those involved in health care, for example, it relates to whether a patient is taking his medication according to the regimen prescribed by the health practitioner and/or the pharmaceutical manufacturer. In many areas of commerce there are industry regulations, and corporates will have their own internal protocols. There is also the King Reports on governance. These all circumscribe ‘compliance’ as well.
This book is about the compliance demanded by our national statutes – in other words, their provisions which establish the boundaries for law-abiding conduct in all walks of life. Staying on the right side of the law is compliance. Cross the line? You might be in trouble with the law; worse, you could find yourself charged with a criminal offence.
The way that it works, for you to be found guilty of a crime, is basically this. The State – the prosecution – must first prove that you perpetrated the conduct in question; in other words, as a matter of fact, that you did the deed. Let’s say, for example, that you dumped oil at sea. The next essential thing the State must prove is that you had mens rea – translated from Latin this means ‘guilty mind’, and constitutes the intention to commit the crime. If the prosecution fails to prove (beyond reasonable doubt) that you had this frame of mind, then you will not be found guilty of the crime.
Here is where it can get a bit tricky. Different crimes require different standards of mens rea before (a) the doing of the deed will result in (b) a criminal conviction. In Law Made Simple: Compliance for Business, Citizens, and for our Government, we are dealing with statutory offences, and the position is not always the same. Sometimes, the country’s legislature (i.e. Parliament) considers that the particular crime is one where your mental frame of mind does not matter. In other words: if, as a matter of fact, you did the deed, and even if you had no idea that what you were doing was prohibited, you will be guilty. Selling diamonds without a permit might be a good example. This is what is called ‘strict liability’. However, a significant proportion of the statutes referenced in this book stipulate that the offence is committed by ‘wilfully’ doing this, or ‘knowingly’ doing that. In other words, the legislature has decreed that it is not a crime, in the particular case, unless you have the necessary mental awareness – mens rea.
This is not a reference work on criminal law. Law Made Simple: Compliance for Business, Citizens, and for our Government is designed to inform, and publicise the quality of behaviour our country expects of its citizens. So there is no distinction drawn between statutory prohibitions which impose strict liability, and those which require there to be mens rea (in some form or another).
There are other things to bear in mind. First, I have avoided repetitive textual references. Everything in this book concerns prohibited conduct. Next, if doing a certain deed contravenes a statute, then attempting to do so, or assisting, inciting or conspiring with another to do the deed is also a crime. I have not spelt this out in the book all the time. (Sometimes I have used a representative or compendious definition – for example, ‘assist’. This term is for convenience only.) Thirdly, in the statutes, a deed is (often) exempted from being an offence if there is ‘sufficient cause’, or ‘good cause’. In legal terms, this means there must be an adequate and substantial reason for doing the deed. To continue with dumping oil at sea as an example: it is not an offence if you were compelled to do it to save the boat, or human life. I have not considered it necessary to identify and isolate these instances for separate treatment.
Many statutes have provisions which are drafted somewhat murkily, to say the least. For example, the Births and Deaths Registration Act 1992 makes it an offence to fail to furnish any notice, information, statement or certificate required by this Act. It is left up to the reader to try and fathom what notice etc. is required – and sometimes this is not altogether clear. In other instances of legislation, it is worse. In these situations, I have diligently attempted to incorporate what can be deduced as constituting the prohibited conduct in question. I suppose an apology is due, where I have omitted anything, but I am not sure whether that due falls on me or the legislator. Criminal provisions should be nothing but precise, and worded with sparkling clarity.
In most chapters I have introduced the statute in question with a topical or anecdotal referencing, just to give some context. In some instances, interesting information is given, be it of statistics or whatever. I cannot promise – and nor hold out to provide – the latest or most detailed information. The introduction is really just that – to give context.
There are some words used frequently throughout the book which have legal significance. For example, a ‘subpoena’ (pronounced ‘suppeena’) is a formal document served by the sheriff of a court ordering you to be present at some legal proceedings. Also to ‘anticipate’ the outcome of proceedings means to make a statement which predicts the outcome. A last word on interpretation. The terminology ‘he/she/it’ is avoided. My use of the articles ‘he’ and ‘she’ is gender-free. The offences apply to all persons – and, where appropriate, to juristic persons as well; i.e. companies.
And a last word altogether. It is as well to emphasise that, although great care has been taken in the interpretation, rephrasing and compilation of Law Made Simple: Compliance for Business, Citizens, and for our Government, it is not intended to constitute legal authority; nor to restate the law; nor to consist of advice in any shape or form; nor to take the place of proper legal advice where it is required.
The statutes are dealt with as at March 2020. An exception is POPI, which came into force on 1 July 2020. It is also included.