Klass Looch Associates

Employer OHS Champion since 1986 

Accident report on workers must be disclosed – court. 11 August 2015.

Cape Town - Eighteen years ago, 15 workers at the Sasol Secunda plant were burned to death in what was described at the time as a "catastrophic fire". What caused the blaze that killed them, how did they die and could they have been saved? These were questions the next of kin and their union wanted to know and felt they had a right to know. Over the years where workers have died in the industrial environment the labour ministry has refused access to reports following official investigations into such tragedies. Now, and thanks to a judgment on Friday in the Gauteng Division of the High Court, they and many other relatives and colleagues of workers who died while at work may at last find closure.  The judgment orders the ministry of labour to make available reports under the Occupational Health and Safety Act (OHSA) that are written after investigations into fatal industrial incidents. One of the grounds that the ministry has advanced for not making the reports available is that they are sent to the Directorate of Public Prosecutions (DPP) to decide on whether there should be any prosecutions.   As campaigning lawyer Richard Spoor has pointed out, there are seldom any prosecutions. More worrying is the fact that the DPP is on record as having expressed “serious concern” about the standard of these reports. The poor quality apparently makes further action difficult, if not impossible. Such unexplained tragedies continued to pile up when, in April 2009 a fierce blaze destroyed much of the Paarl Print Works. Thirteen workers died and more than ten were injured.  The Industrial Health Resource Group (IHRG) of the University of Cape Town, were particularly concerned about the possibility that a widely used polystyrene roofing insulation might have played a part in the tragedy. IHRG director Nicholas Henwood noted:  “The fire spread rapidly, accompanied by clouds of dense black smoke, reducing visibility almost completely. It appears that the persons who died in the inferno were trapped by the flames and blinded by the smoke and could not find their way out of the premises in time to prevent their own deaths.” In a statement, he pointed out that this form of roof insulation was involved in a warehouse fire at the Duncan Dock in Cape Town in 1993.  “It was ignited by a stray firework set off in the harbour,” he added. IHRG, the families, and representatives of Cosatu-affiliated unions at the Paarl plant tried for two years to obtain copies of the report into the blaze before being told it had “not yet been finalised”.  And when, in July 2009, the report was finalised, it was sent to the DPP that was “not at liberty to disclose” the contents. Two more years of frustration followed, including an unsuccessful attempt to gain access to the report using the Promotion of Access to Information Act.  Frustrated, IHRG, together with representatives of nine families, represented by Spoor, Cosatu and two affiliated unions last year took the matter to the high court.  One of the unions involved, the Chemical Energy Paper Printing Wood and Allied Workers' Union, is the union still awaiting the report from the Secunda fire of 1997. Papers submitted to the court by the applicants also listed examples such as the manganese poisonings at the Assamang smelter in Cato Ridge in 2007 and the furnace eruptions at Assamang and Highveld Steel a year later that together claimed seven lives. All may at last gain at least some inkling of what happened and whether such loss of life and limb could be avoided in future. 

Judge rules against ‘absurd’ non-disclosure

Firefighters battle the last flames in the pre-press section of the Paarl Print Factory, in the Western Cape that was gutted by fire in April, 2009. Thirteen people died. MORE than six years after a devastating fire at the Paarl Print Factory in the Western Cape, which left 13 people dead and 10 injured, the victims’ families will at last have access to the findings of an inquiry into the blaze. The Department of Labour up to now refused to hand over the report, saying the Occupational Health and Safety Act did not allow for interested parties to have access to the report. The department contended that disclosure of the report to any person other than the chief inspector and the National Prosecuting Authority would violate the principles of co-operative governance enshrined in the constitution. It was further said that, because employees injured on duty or the dependents of those who had died as a result of injury on duty were not entitled to sue their employer for damages, they did not need access to the report. The families, together with the Industrial Health Resource Group of the University of Cape Town, turned to the Pretoria High Court to force the Minister of Labour, Mildred Oliphant, to make public inquiry reports regarding findings into workplace accidents. Judge Elias Matojane, in a groundbreaking judgment which will pave the way for others in a similar situation, ordered that interested parties may in future, on request to the presiding inspector, receive a copy of an inquiry report. The judge said the government’s interpretation of the act that it did not allow for a report to be handed over to interested parties, undermined the basic constitutional right of transparency and accountability. He said the constitution provided that everyone had the right of access to any information held by the State. In withholding the information, it also deprived interested parties of their rights to dignity. The judge said the families and next of kin of workers killed in industrial accidents would never be able to find closure if they were not able to gain access to the reports. “Without access to the reports, values also of employers and trade unions were also hampered in their ability to ensure health and safety in the workplace. “It will not be possible for unions to adequately protect their members’ interests by advocating for reform and improvement of safety in the workplace.” Judge Matojane said the reports would allow employees and unions to hold employers accountable for past and future conduct by ensuring that they comply with the recommendations and findings. In terms of the act, aggrieved parties may appeal against the findings of the reports. The judge said it was “absurd” to say parties may appeal, while at the same time they were denied access to the report. The judge declared that the policy of the department to refuse access to a Section 32 inquiry report, in all instances and without regard to the circumstances of each case once the report is referred to the NPA, was inconsistent with the Occupational Health and Safety Act and the Promotion of Access to Information Act.