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[2015] ZAGPPHC 555
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Industrial Health Resource Group and Others v Minister of Labour and Others (74793/2013) [2015] ZAGPPHC 555; [2015] 4 All SA 78 (GP); (2015) 36 ILJ 2547 (GP) (7 August 2015)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO:
74793/2013
DATE:
07 AUGUST 2015
In
the matter between:
INDUSTRIAL
HEALTH RESOURCE
GROUP
...............................................................
1
st
Applicant
EDWIN
STOFFELS
...........................................................................................................
2
nd
Applicant
ISABELLA
PETERS
..........................................................................................................
3
rd
Applicant
TITUS
PIETERSEN
............................................................................................................
4
th
Applicant
WILMA
JOHNSON
............................................................................................................
5
th
Applicant
STANLEY
ADONIS
............................................................................................................
6
th
Applicant
KATERINA
DIEDERICKS
................................................................................................
7
th
Applicant
LYDIA
BLANCKENBERG
................................................................................................
8
th
Applicant
BRADLEY
ALBERTYN
.....................................................................................................
9
th
Applicant
ELIZABETH
JACOBS
.....................................................................................................
10
th
Applicant
CONGRESS
OF SOUTH AFRICAN TRADE
UNIONS
...............................................
11
th
Applicant
CHEMICAL
ENERGY PAPER PRINTING WOOD &
ALLIED
WORKERS
UNION
..........................................................................................
12
th
Applicant
NATIONAL
UNION OF METAL WORKERS
OF
........................................................
13
th
Applicant
SOUTH
AFRICA
Versus
THE
MINISTER OF
LABOUR
......................................................................................
1
st
Respondent
CHIEF
INSPECTOR, OCCUPATIONAL HEALTH
SAFETY
..................................
2
nd
Respondent
DEPARTMENT
OF LABOUR
MR
TIBOR
SZANA
........................................................................................................
3
rd
Respondent
PAARL
PRINT (PTY)
LTD
............................................................................................
4
th
Respondent
DIRECTOR
OF PUBLIC
PROSECUTIONS,
...............................................................
5
th
respondent
WESTERN
CAPE
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
.........................................
6
th
Respondent
JUDGMENT
MATOJANE
J
Introduction
[1]
This matter concerns the interpretation and application of section 32
of the Occupational Health and Safety Act. The Department
of Labour
(“the Department”) has denied the applicants access to a
section 32 report following a workplace fire at
the Paarl Print
Facility on 17 April 2009 (“the Paarl Print fire”)
[2]
The Applicants seeks a declaratory relief that they are entitled, on
request, to be furnished with a copy of the report contemplated
in
section 32(9) of the Occupational Health and Safety Act
[1]
(“the OHSA”) or alternatively in terms of PAIA. The
report aforesaid is the report into any inquiry held in terms of
section 32 of the OHSA
[3]
The Applicant also seeks an order directing the Minister of Labour,
the First Respondent, to give the second to the tenth applicant’s
access to the Presiding Inspector’s section 32 inquiry report,
into the fire that occurred at the Paarl Print Facility on
17 April
2009, within 5 days from the date of the order.
[4]
The Respondents deny that the provisions of the OHSA allow for an
interested party to have access to the Presiding Inspector’s
report into a section 32 inquiry. Respondents contends that the
disclosure of the Presiding Inspector’s section 32 inquiry
report to any person other than the Chief Inspector and the National
Prosecuting Authority, would violate the principles of co-operative
governance enshrined in sections 40 and 41 of the Constitution.
[5]
Respondents contends further that because employees injured on duty
and/or the dependants of employees, who have died as a result
of
injuries on duty, are not entitled (by virtue of the provisions of
section 35 of the Compensation for Occupational Injuries
and Diseases
Act
[2]
, to sue their employer
for damages, arising from such injury or death, such employees and/or
dependants do not require access to
the report of the presiding
inspector into a section 32 inquiry, for the protection of, or for
the exercise of, any right as they
have no right of action against
the employer.
The
Parties
[6]
The first applicant is a unit of the University of Cape Town (“UCT”)
a university with its own juristic personality
established in terms
of the Higher Education Act
[3]
.
The second to tenth applicants are dependants, parents and spouses of
employees who died in consequence of injuries suffered at
the Paarl
Print fire.
Issues
to be determined
[7]
The issue to be determined is whether the applicants and similarly
situated interested parties are entitled to be furnished
with a copy
of the report of an enquiry contemplated in section 32(9) of the OHSA
as of right. The answer to this question depends
on the
interpretation of section 32 of OHSA in particular section 32(10)
thereof.
Factual
background
[8]
On 17 April 2009 a fire incident broke out in a printing factory
owned and operated by Paarl Print (Pty) Ltd (“Paarl Print”).
The fire spread rapidly through the facility, destroying much of it
and killing 13 people and injuring 10 more.
[9]
The Second Respondent (“the Chief Inspector”) appointed
the third respondent, Mr. Tibor Szana, who was the Senior
Inspector
in the Department at the time to conduct a formal inquiry in terms of
section 32 of the OHSA, and to prepare a report
into the inquiry.
[10]
The inquiry was held in public and was attended by members of the
public and the media. The inquiry ran for some 20 days,
between the
1
st
of March 2010 and the 15
th
of June 2010.
Some 30 witnesses were called to testify and approximately 3000 pages
of evidence were submitted as evidence in the
inquiry.
[11]
The following parties were represented and actively participated in
the enquiry by leading evidence, cross examining
witnesses and making
their submissions both orally and in writing.
11.1
The twelfth applicant and the families of the second to the tenth
applicants.
11.2
Paarl Print and Paarl Media, the parent company of Paarl Print
11.3
The Drakenstein local Municipality;
11.4
The engineers and architects responsible for the construction and
design of the facility;
11.5
The manufactures of the product “Kulite” which is used
for roof insulation.
[12]
According to the deponent to the answering affidavit of the first,
second and third respondents, the inquiry was directed
at
establishing causes for the fire and also making a recommendations
that maybe helpful either during the prosecution in terms
of the
Criminal Procedure Act or conducting an inquest in terms of the
Inquest Act.
[13]
The applicants urged the Presiding Inspector to make a findings that
included the origin and cause of the fire, the reason
for its rapid
spread through the premises, preventative steps that could have been
taken by Paarl Print and whether any parties
ought to be held
criminally and/or civilly responsible for the resultant injuries and
death.
[14]
The twelfth applicant contends that the original fire in the kitchen
ignited the “Kulite” thermal roof insulation,
which
burned furiously and provided the fuel for the fire as it raced
through the facility
[15]
Applicants raised concerns regarding the safety of the design and
construction of the factory. These included inadequacies
in the alarm
and fire detection system, inadequate fire training and the absence
of
physical
fire
divisions in the building.
[16]
The Presiding Inspector completed
his report in late
2010 and submitted
it
to the Chief Inspector and the Director of Public Prosecutions
pursuant to section 32(10) of the OHSA. In January 2011 families
of
the deceased requested the Chief Inspector to furnish them with the
copy of the Presiding Inspector’s report. Applicants
were
informed of the blanket policy not to make section 32 reports
available to anyone other than the NPA.
[17]
The Applicants wrote the Director of Public Prosecutions requesting a
copy of the report and an update on the progress
of the
investigations. The Director of Public Prosecutions informed the
families of the deceased that he was not at liberty to
disclose the
contents of the report by virtue of section 36 of OHSA and that the
reports are submitted to him marked “confidential”.
[18]
On 16 May 2013, the Director of Public Prosecutions decided that no
prosecutions would be instituted arising out of the
Paarl Print fire
and the matter was referred to an inquest.
[19]
On 31 May 2013 the Department refused the Applicant’s PAIA
request stating that the reports have been submitted
to the Senior
Public Prosecutor and in terms of section 39(1)(b)(iii)(aa) of [PAIA]
the department was unable to release the report.
[20]
On 24 April 2014, the National Prosecuting Authority informed the
applicants that it would not be instituting any prosecutions
arising
from the incident.
The
statutory framework
[21]
The purpose of the
Occupational Health and Safety
Act
as set out in the preamble is:
“
to
provide for the health and safety of persons at work and for the
health and safety of persons in connection with the use of plant
and
machinery; the protection of persons other than persons at work
against hazards to health and safety arising out of or in connection
with the activities of persons at work; to establish an advisory
council for occupational health and safety; and to provide for
matters connected therewith”.
[22]
Section 8 of the Act imposes positive duties on employers and third
parties to their employees in respect of workplace
safety. The
duties includes
inter alia:
"
the
provision and maintenance of systems of work, plant and machinery
that, as far as is reasonably practicable, are safe and without
risks
to health;( section 8(1) taking such steps as may be reasonably
practicable to eliminate or mitigate any hazard or potential
hazard
to the safety or health of employees, before resorting to personal
protective equipment; (section 8(2)(b)) making arrangements
for
ensuring, as far as is reasonably practicable, the safety and absence
of risks to health in connection with the production,
processing,
use, handling, storage or transport of articles or substances;
(section(2)(c)(d) establishing, as far as is reasonably
practicable,
what hazards to the health or safety of persons are attached to any
work which is performed, any article or substance
which is produced,
processed, used, handled, stored or transported and any plant or
machinery (section 8(2)(d).”
[23]
Section 10 imposes general duties on manufacturers of articles and
substances for use at work and state that:
“
(1)
Any person who designs, manufactures, imports, sells or supplies any
article for use at work shall ensure, as far as is reasonably
practicable, that the article is safe and without risks to health
when properly used and that it complies with all prescribed
requirements.”
[24]
Failure to comply with these duties constitutes a criminal offence in
terms of section 38(1) of the OHSA.
[25]
The Act defines an “incident” as each incident
occurring at work or arising out of or in connection with the
activities
of persons at work, or in connection with the use of plant
or machinery, in which, or in consequence of which-
"(a)
any person dies, becomes unconscious, suffers the loss of a limb or
part of a limb or is otherwise injured or becomes
ill to such a
degree that he is likely either to die or to suffer a permanent
physical defect or likely to be unable for a period
of at least 14
days either to work or to continue with the activity for which he was
employed or is usually employed;
(b)
a major incident occurred; or
(c)
the health or safety of any person was endangered and where-
(i)
a dangerous substance was spilled;
(ii)
the uncontrolled release of any substance under pressure took place;
(iii)
machinery or any part thereof fractured or failed resulting in
flying, falling or uncontrolled moving objects; or
(iv)
machinery ran out of control, shall, within the prescribed period
and in the prescribed manner, be reported to an inspector
by the
employer or the user of the plant or machinery concerned, as the
case may be."
[26] The
Act defines “major incident” as “an occurrence of
catastrophic proportions, resulting from the
use of plant or
machinery, or from activities at a workplace”.
[27]
Section 32 governs any incident occurring at work or arising out of
or in connection with the use of plant or machinery.
The chief
Inspector is required to direct an inspector to conduct an inquiry
into any incident in terms of section 32 of the OHSA
when presented
with prima facie evidence of an offence
[4]
.
Section 32(4) provides that an inquiry must be held in public.
[28]
Section 32(5)(b) identify persons who have an interest in the issue
of the formal enquiry and limits their rights to
participating in the
inquiry through putting questions to a witness to such an extent as
the Presiding Inspector may allow. Section
32(5)(b) provides:
“
(b)
Any person who has an interest in the issue of the formal inquiry may
personally or by representative, advocate or attorney
put such
questions to a witness at the inquiry to such extent as the presiding
inspector may allow.
(c)
The following persons shall have an interest as referred to in
paragraph (b), namely
(i)
any person who was injured or suffered damage as
a result of the incident forming the
subject of the inquiry;
(ii)
the employer or user, as the case may be, involved in the incident;
(iii)
any person in respect of whom in the opinion of
the presiding inspector it can
reasonably be inferred from the evidence that he could be held
responsible for the incident;
(iv)
a trade union recognized by the employer concerned or any trade union
of which a person referred to in subparagraph (i) or
(iii) is a
member;
(v)
any owner or occupier of any premises where the said incident
occurred;
(vi)
any other person who, at the discretion of the presiding inspector,
can prove such interest.”
[29]
Section 32(9) requires the Presiding Inspector at the conclusion of
the inquiry to compile a written report thereon. Section
32(10)
provides:
“
The
evidence given at any inquiry under this section shall be recorded
and a copy thereof shall be submitted by the presiding inspector
together with his report to the chief inspector, and in the case of
an incident in which or as a result of which any person died
or was
seriously injured or became ill, the inspector shall submit a copy of
the said evidence and the report to the attorney-general
within whose
area of jurisdiction such incident occurred”.
[30]
Section 32(13) provides that an inspector presiding at any formal
inquiry shall not incur any civil liability by virtue
of anything
contained in the report compiled in terms of subsection (9).
[31]
Section 35 affords a right to any person aggrieved by any decision
taken by the inspector to appeal against such a decision.
Approach
to statutory interpretation
[32]
Section 39(2) of the Constitution obliges courts to promote “the
spirit”, purport and objects of the Bill
of Rights when
construing legislation. Although the text is often the starting point
of any statutory construction, the meaning
it bears must pay due
regard to the context. This is so even when the ordinary meaning of
the provision to be construed is clear
and unambiguous. See
Department
of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty)
Ltd
[5]
.
It
is trite that words in a statute must be given their ordinary
grammatical meaning, unless doing so would result in an absurdity,
added to this general principle is the rider that (a) a statutory
provision should always be interpreted purposively, (b) the relevant
statutory provision must be properly contextualized and (c) all
statutes must be construed consistently with the
Constitution.
See
Cool
Ideas v Hubbard
[6]
[33]
Therefore in construing section 32, we are obliged to consider the
statute within the context of the related provisions
and the statute
as a whole including its underlying values bearing in mind that we
should avoid an interpretation that is contrary
to the Bill of
Rights.
[34]
Respondents submit in their heads of argument and in court that
section 32 expressly mentions the individuals who must
be provided
with the report, namely the Chief Inspector and in some instances,
the Director of Public Prosecutions. Respondents
argue that section
32(10) does not provide for access to the report by interested
parties listed in section 32(5). Respondents
argue that it prescribes
specifically that the report shall be submitted to the people
mentioned in section 32(10) only.
[35]
Section 32 inquiry is not limited to incidents involving employees
only, but may be convened whenever “
any person”
suffers the consequences referred in section 24(1)(a) of the
OHSA.
[36]
Section 32(5) of the OHSA affords interested parties the right to
participate is section 32 inquiries.
[37]
Section 35(1) confers a right of appeal to the Chief Inspector to
“
Any person”
aggrieved
by any
decision taken by an inspector under a provision of this Act”
.
The section provides that “
after the Chief Inspector has
considered the grounds of the appeal and the inspector's reasons for
the decision, he shall confirm,
set aside or vary the decision or
substitute for such decision any other decision which the inspector
ought to have taken
.
[38]
If the reports are not made available to interested parties, they
could never become aggrieved by anything contained
in it, as they
would not have had sight of its contents. It is absurd, in my
view, to confer on interested parties a right
of appeal against the
finding of a report and at the same time deny them access to the
report.
[39]
Section 32(13) of the OHSA confers a statutory indemnity on the
inspector in respect of the content of the report. This
indemnity
would be redundant if the only recipients of the inspector’s
report are the Senior Inspector and the Prosecuting
authority only.
In my view the right of access of interested parties to section 32
reports
follows from the express language
of the order.
[40]
It is clear from the reading of section 8
[7]
and section 10 that the purpose of the section 32 inquiry is to
determine whether any duties imposed on employers and manufacturers
have been breached and whether any party ought to be held criminally
liable hence the referral of the report to the Prosecuting
Authority.
Civil liability on the part of the employers or manufactures is not
catered for in the Act. The family members and dependants
of
employees, who are killed in an industrial accident have a legitimate
interest in the outcome of any section 32 inquiry into
such accident
as they may have a claim for loss of support against any third party,
who might be held liable under common law.
[41]
The findings and recommendations of the Presiding Inspector in any
section 32 inquiry are of direct relevant to employers
who are under
a duty in terms of section 8 of the Act to establish the hazards to
the health and safety of persons in the workplace
and to take all
measures reasonably required to eliminate the risk posed by such
hazards. By denying employers and employees sight
of the presiding
inspectors report into the causes of the accidents and their
recommendations on means to prevent future occurrences,
they will be
deprived the knowledge they require to ensure safe and healthy
workplace.
[42]
The respondents submit that applicants do not need the inspectors
report to enforce any right against the employer as
the Compensation
for Occupational Injuries and Diseases Act
[8]
(“COIDA”) provides for compensation for disablement
caused by occupational injuries or death resulting from such injuries
during the cause of employment. The difficulty with this submission
is that COIDA does not have application to persons who are
not
employees of the party whose negligence is the cause of their
disablement or death. In the present matter, COIDA will not apply
if
the presiding inspector finds that third parties like the
manufacturers of Kulite, the engineers who designed the premises or
the contractor who operated the canteen where the fire broke out were
responsible for the fire and the ensuing deaths and injuries.
[43]
It follows that the finding of the presiding inspector are relevant
to the rights of the dependants of the deceased and
those of the
injured workers to recover damages from third parties who may be held
responsible for the deaths and injuries.
[44]
For the above reasons, I find that OHSA itself interpreted
purposively entitles persons in the position of the applicants
to
access section 32 reports.
[45]
Section 32(1)(a) of the Constitution provides that everyone “
has
the right of access to any information held by the state
”
This right gives effect to the founding constitutional values of
openness and accountability in public affairs. The founding
values in
s 1 include the pursuit of “accountability, responsiveness and
openness”.
[46]
Section 39(1)(a) provides that the courts must promote the values
that underlie “
an open and democratic society
”.
Section 41(1)(c) of the Constitution requires all spheres of
government and all organs of state to provide “transparent
and
accountable” government.
[47]
Section 195(1)(g) provides that “transparency must be fostered
by providing the public with timely, accessible
and accurate
information.
[48]
The Respondents’ interpretation of section 32, in my view,
undermines the constitutional values of transparency
openness and
accountability in that it deprives interested parties their right to
information held by the state. The refusal
to disclose section
32 reports violates the right to human dignity provided for in
section 10 of the constitution, in that families
and next of kin of
workers killed in industrial accidents do not receive an
authoritative report on the cause of their loved one’s
death to
enable them to find psychological closure.
[49]
Without access to the reports, employers and trade unions are
hampered in their ability to ensure health and safety in
the
workplace. It is also not possible for unions to adequately protect
their members’ interest by advocating for reform
and
improvement of safety in the workplace which infringes the workers
right to fair labour practice provided for in section 23
of the
Constitution.
[50]
It follows in my view, that an interpretation that entitles
interested parties to access section 32 reports respects,
protects
and promotes various rights in the Bill of Rights and other important
values enshrined in the Constitution. It allows
employees and unions
to hold employers accountable to past and future conduct by ensuring
that they comply with the recommendations
and findings contained in
the report.
[51]
The Respondent contend that PAIA is not applicable because the OHSA
specifically excludes disclosure to interested parties
and that PAIA,
being a “general stature”, cannot override the provisions
of OHSA.
[52]
Section 46 of the Promotion of Access to Information Act
[9]
makes
access to the inpector’s report mandatory. It provides:
Despite
any other provision of this Chapter, the information officer of a
public body must grant a request for access to a record
of the body
contemplated in section 34 (1), 36 (1), 37 (1) (a) or (b). 38 (a) or
(b). 39 (1) (a) or (h). 40, 41 (I) (a) or (b).
42 (1) or (3). 43
(1).or (2), 44 (1) or (2) or 45, if -
(a)
the disclosure of the record would reveal evidence of-
(i)
a substantial contravention of, or failure to comply with, the law;
or
(ii)
an imminent and serious public safety or environmental risk; and
the public interest in the disclosure of the
record clearly outweighs the harm contemplated in the provision in
question.
[53]
The order:
1.
It is declared that the persons referred to in section 32(5)(c) of
the Occupational Health and Safety Act 85 of 1993 (“OHSA”),
are entitled, on request to the presiding inspector, to be furnished
with a copy of the report contemplated in section 32(9) of
OHSA,
into any inquiry held in terms of section 32 of OHSA.
2.
It is declared that the policy of the Department of Labour 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 National Prosecuting Authority is inconsistent
with OHSA, the
Promotion of Access to Information Act 2 of 2000
, and the
Constitution of the Republic of South Africa, 1996, and is
accordingly unlawful and invalid.
3.
The Minister of Labour is directed to provide, within five (5) days
of this court order, the second to tenth applicants with
access to
the presiding inspector’s section 32 inquiry report, into the
fire that occurred at the Paarl Print facility,
in Paarl, on 17 April
2009.
4.
It is directed that the costs of this application are to be paid by
the first respondent and such other respondents who opposed
this
application, jointly and severally, the one paying the other to be
absolved.
K
E MATOJANE
JUDGE
OF THE HIGH COURT
[1]
Act
85 of 1993
[2]
Act
130 of 1993
[3]
Act
101 of 1997
[4]
Section
32 reads:
(1) The chief inspector may, and he shall when so requested by a
person producing prima facie evidence of an offence, direct
an
inspector to conduct a formal inquiry into any incident which has
occurred at or which has resulted, or in the opinion of
the chief
inspector could have resulted, in the injury, illness or death of
any person.
[5]
[2007]ZACC
12;2007(6)SA 199 CC;2007(10)BCLR 1027 (CC) at para 53
[6]
2014(4)SA
474 at 484 para 28
[7]
supra
[8]
Act
130 of 1993
[9]
ACT
2 OF 2000