Open Letter to the Chief Inspector regarding section 31 Investigations
Dear Mr Chief Inspector
I spoke to Tibor some time ago that the practice of private interviewing / interrogating witnesses by inspectors during a section 31 Investigation is cause for concern. He advised that I make a written submission in this regard.
The concern essentially revolves around the potential flouting of the rules of natural justice as enshrined in section 33 of the Bill of Rights to the Constitution and as reflected in the audi alterem partem rule. In essence the rule is a fundamental principle of justice requiring a judicial officer, arbitrator or administrative official who must decide a dispute or make a decision that will affect someone's rights, to 'hear the other side' - to give all those affected by the decision the chance to state their case and be heard.
It must be accepted that a section 31 investigation is a quasi-judicial procedure and that the audi alterem partem rule applies. I would also argue later that the decision (inspector’s report) is an administrative action which must be reasonable and procedurally fair and that natural and juristic persons who may be adversely by the outcome of the decision have the right to written reasons. (The Inspector’s Report). In view of this, the failure to furnish the effected parties with the inspector’s report is in conflict with section 33 of the Bill of Rights.
The issue of private interviews of witnesses under the guise of a section 31 investigation came to head recently in two matters. I was involved in the one matter while, in the other, I was requested to assist a company legal advisor who had objected to such a private interview / interrogation by an inspector. In the latter matter I opined that the inspector was flouting the audi alterem partem rule as a section 31 investigation is undoubtedly a quasi-judicial procedure and, provided negative evidence was elicited that demanded a response, the employer must be allowed to rebut such evidence immediately. A standoff developed and the legal representative reluctantly capitulated since the fatal incident under investigation was so stale that a negative outcome was unlikely and because various individuals within the department justified private interrogations with reference to section 29 of the Occupational Health and Safety Act – The functions of an inspector. In particular section 29(1)(b) which reads ‘an inspector may question any person who is or was on or in such premises, either alone or in the presence of any other person on any matter to which this Act relates.’
In my view section 29 only pertains to routine inspections and not quasi-judicial procedures and should not be used to justify private interrogations. I would also argue that to use this section to justify this practice is unconstitutional and in conflict with a host of case studies on the audi alterem partem rule. It is also important to note that the Mine Health and Safety Act, a post (interim) Constitution piece of legislation, does not contain this provision and that it limits the functions of inspectors to monitoring or enforcing compliance, in other words routine inspections as opposed to quasi-judicial procedures.
OHS Act. Section 29. Functions of inspectors
(1) An inspector may -
(a) without previous notice, at all reasonable times, enter any workplace or premises which are occupied or used by an employee or on or in which an employee performs any work or any plant or machinery is used, or which he believes to be such workplace or premises;
(b) question any person who is or was on or in such premises, either alone or in the presence of any other person on any matter to which this Act relates;
MHS Act. Section 50. Inspectors' powers.
(1) An inspector may for the purposes of monitoring or enforcing compliance with this Act -
question any person on any matter to which this Act relates;
The argument was also raised by the inspector that employers will have a opportunity to challenge any negative testimony elicited during the private interrogation at the section 32 formal inquiry since a section 31 investigation precedes the formal inquiry. We know that only small fraction of section 31 investigations evolve into a formal inquiry and that section 31 is usually used to finalise the matter since that section does provide for the inspector to compile a report to the National Prosecuting Authority.
The prejudicial impact of this procedure lies in the fact that the prosecutor is provided with potentially unchallenged testimony in direct conflict with the audi alterem partem rule. I personally have had a matter recently withdrawn by the prosecutor after he heard the employer’s response to testimony obtained during a twenty minute private interview by an inspector with a witness and to which the employer was not privy to at the section 31 investigation. I don’t say this lightly but I suspect that the ex inspector schooled the witness as his evidence was glaringly contradictory – something the inspector should have addressed - and contained terminology that the witness could not posses. Words such as ‘the employer failed to provide me with an updated issue based risk assessment.’ This after the witness had already conceded that he was au fait with the recent Safe Working Procedure which obviously emanated from an updated issue based risk assessment! The employer was charged with failing to make a risk assessment based solely on this unchallenged allegation by the witness. Adherence to the audi alterem partem rule would have allowed the employer to rebut this allegation, would have ensured the inspector – suspected in this in this instance only - did not put words in the mouth of the witness and prevented the summons being served in the first place.
Naturally I would have no objection to private interrogation of a witness by an inspector if indeed a section 32 formal inquiry was subsequently held and rebuttal of adverse evidence via cross examination was allowed.
As mentioned above I am also of the opinion that the failure of an inspector to furnish interested or affected parties with a copy of the report to the National Prosecuting Authority (NPA) is in conflict with section 33 of the Bill of Rights and thus unconstitutional. I submit that it is for this reason that the Mine Health and Safety Act, which was promulgated after the enactment of the interim constitution, explicitly obliges the inspector to furnish interested parties with a copy of the recommendations prior or at the same time as submission to the NPA.
Section 33 of the Bill of Rights. Just administrative action.
1. Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
2. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
An administrative action means any decision taken, or any failure to take a decision, by-
a) an organ of state, when-
i) exercising a power in terms of the Constitution or a provincial constitution; or
ii) exercising a public power or performing a public function in terms of any legislation; or
b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect.
The inspectors’ report is in my view an administrative action and failure to provide an employer with it prior to submission to the NPA adversely affects the employer’s rights. Employers are deprived of the opportunity of using other legal mechanisms at their disposal to challenge the report and are prejudiced by the fact that the NPA may issue a summons without the benefit of legal representations on behalf of the employer which could influence the NPA’s decision. This would be particularly prejudicial in cases where a section 31 investigation only has been held and the employer is deprived of the opportunity to challenge evidence elicited during private interrogations of witnesses.
As you know I have advocated for many years that inspectors furnish employers and other interested parties with their report the moment it is finalised. I also know that the counter argument has always been that these reports enjoy some sort of inter departmental privilege. This argument is flawed in my opinion since it contrasts glaringly with the Constitution and the Promotion of Administration of Justice Act. I believe for this reason the Mine Health and Safety Act compels inspectors to furnish employers and other interested parties with a copy of their report. I also have no doubt that the Promotion of Access to Information Act could be successfully utilised to obtain a copy of an inspector’s report.
Currently we are advised that we can obtain a copy of the inspector’s report but only from the NPA. The prejudice to employers in this approach lies, as mentioned before, in the fact that employers can only access the report after a summons has been issued. Successful representations to the NPA , after a summons has been issued still necessitate a court appearance in order to have the matter withdrawn.