Minister of Labour Mildred M Oliphant. Photo from Government website.
17 August 2015
The South Gauteng High Court has delivered a judgment that promotes openness and helps people injured at work, or the families of people killed at work, realise their rights.
In Paarl on 17 April 2009, a fire broke out in a printing factory killing 13 workers and injuring a further ten. Although the law provides for a mandatory public investigation by an inspector appointed by the Department of Labour (DoL), and the production of a full written report, until recently the family members of the fallen in Paarl were robbed even the pretence of justice in the form of the inspector’s report.
The South African Constitution contains a specific right to fair labour practices. The work environment has protective laws such as the Labour Relations Act, the Basic Conditions of Employment Act and the Occupational Health and Safety Act (OHSA).
The OHSA places obligations on employers and workers alike to contribute to the creation and maintenance of a safe working environment. It puts mechanisms in place to ensure the investigation of “incidents” in which “any person dies, becomes unconscious, suffers the loss of a limb or part of a limb or is otherwise injured…”. The process should be transparent and the OHSA allows for the involvement of a wide range of parties in the inquiry process including employers, employees, family members and other interested stakeholders.
The DoL-appointed Chief Inspector allocates an inspector to conduct a “formal inquiry” to determine whether any offences in terms of the Act have taken place. It specifically requires that formal inquiries of this kind “shall be held in public” and that on conclusion of the inquiry a written report is produced by the inspector.
In the case of the Paarl printing factory, this inquiry ran for 20 days between March and June 2010. The investigations appear to have been thorough — 30 witnesses testified during this period and approximately 3,000 pages of evidence were submitted. The families of those who died in the fire participated in the proceedings, which were held in public and well attended by the media.
The OHSA stipulates that an inspector is required to send a complete record of evidence to the Chief Inspector and the National Prosecuting Authority (NPA). It is silent, however, on whether this report, which is based on a public inquiry, should be made available to the participants.
The inspector in the Paarl printing factory inquiry concluded his report late in 2010 and submitted it to the DoL and the NPA. In January 2011, the families of the deceased requested a copy of the report. This was denied, not on the basis of the circumstances of the incident pending criminal prosecution or a balanced consideration of the merits of doing so — they were merely informed that it is a “blanket policy” of the DoL not to provide access to the reports to anyone except for the NPA marked “confidential”. The NPA also denied the families access to the report on the same basis. It had also decided not to initiate any prosecutions as a result of the fire.
The families of the deceased approached the South Gauteng High Court for an order directing the department to provide them with access to the inspector’s report. In Court, the families received support from the Industrial Heath Resource Group — a labour support organisation that specialises in occupational health and safety, the Congress of South African Trade Unions, National Union of Metal Workers of South Africa and the Chemical Energy Paper Printing Wood & Allied Workers Union.
In a judgment delivered on 7 August, Judge Elias Matojane found that provisions of the OHSA, including the right to appeal if “aggrieved” by an inspector’s decision, are rendered “redundant”” and “absurd” by the DoL’s interpretation of the Act.
Noting that the Constitution contains a right of access to information held by state entities and is premised on values of “accountability, openness and responsiveness”, Judge Matojane observed that in the context of inspectors’ inquiries the information contained in the report may also be needed to protect workers’ rights to fair labour practices and the family members’ right to dignity:
The judge held further that denying employers and employees access to inspectors’ reports also has the effect of depriving them of “the knowledge they require to ensure safe and healthy workplace.” In addition, the content of the report would be necessary for the families to determine whether to initiate civil claims, such as claims for loss of support, against third parties whose negligence may have contributed to or caused the deaths of the workers.
He ordered the DoL to provide the families with access to the report within five days of his order.
As the DoL’s approach of denying access to inspector’s reports violated constitutional rights, Judge Matojane declared the department’s blanket policy of refusing access to be “unlawful and invalid”.
Importantly, this decision opens the way for workers, their families and their trade unions to access inspectors’ reports with the aim of protecting their rights and discovering the truth about what happened to their loved ones who died or were injured while working.
Hodgson is a social justice activist and human rights lawyer. He tweets at @TimFish42 and works as a Legal Researcher for SECTION27. The views expressed here are his own.