Dear OHS Folks

Many of you may have seen in the media and on my website that recently a joint inquest / inquiry was held into the multiple fatal accident at Northam Platinum mines. The accident occurred on 20 September 2004 and resulted in the death of nine mineworkers. Although the media clouded the matter somewhat with its inaccurate reporting, it was refreshing for me to see the Mine Health & Safety Inspectorate of the Department of Mineral & Energy utilise an important mechanism in the Mine Health & Safety (MHS) Act namely the joint inquiry / inquest to inquire into the incident. Ultimately the OHS specialised prosecutors should be lauded for making the decision.

Section 74 of the MHS Act states under the heading ‘Inquiry and inquest may be conducted jointly’:

(1) An inquiry in terms of this Act into the death of a person may be held jointly with an inquest in terms of the Inquests Act, 1959 (Act No. 58 of 1959).

(2) The judicial officer contemplated in the Inquests Act, 1959 (Act No. 58 of 1959), must preside at a joint inquiry referred to in subsection (1) and the person instructed to hold the inquiry in terms of this Act must be deemed to be an assessor appointed in terms of the Inquests Act, 1959.

(3) The provisions of the Inquests Act, 1959 (Act No. 58 of 1959), apply to a joint inquiry.

(4) The assessor referred to in subsection (2) must -

(a) prepare a report contemplated in section 72(1)(b); and

(b) submit the report and the record of the joint inquiry to the Chief Inspector of Mines.

This provision would naturally only apply to fatal incidents and is designed to do away with often unnecessary duplication where separate formal inquiries are held in terms of section 65 of the MHS Act followed by an inquest in court. An inquest is nothing more than a formal inquiry in court into an unnatural death. It can be formal, with evidence being led or informal, where a magistrate studies the docket in his / her office and makes a finding. It’s task is to determine the cause of death and whether, on a balance of probabilities, someone was negligent or committed an offence. The negligence could be either in terms of the common law where a potential charge of culpable homicide may be brought or in terms of a statute such as the MHS or OHS Acts. If an inquest does make a finding of negligence it remains for the National Prosecuting Authority (NPA) to determine whether there is sufficient prima facie evidence to institute a prosecution taking into account that the onus of proof rests with the State to prove a case beyond a reasonable doubt. So it does not automatically follow that a prosecution will be instituted post an inquest or that employers and individuals will be charged with the negligent causing of the death of persons. Even unrelated charges in terms of the MHS or OHS Acts may follow. And sometimes no charges will be brought even after a magistrate has found that the death was due to the negligence of someone.  An inquest is not a trial and there is no verdict as claimed by NUM according to an article in the Mail & Guardian…’The National Union of Mineworkers said on Friday in a statement that the chief magistrate of Thabazimbi had found platinum miner Northam Platinum guilty of negligence regarding the accident’. The effectiveness of the joint inquiry / inquest also impressed the Minister of Mineral & Energy and she is quoted as saying…’ "Minister Sonjica wishes to express her sincere condolences to the families and relatives of those who lost their lives as a result of this accident. "In addition, the minister wishes to thank Mr DC Torlage, the prosecutor, the legal representatives who acted on behalf of the unions, associations and management as well as the witnesses who participated for the cordial manner in which the inquest was conducted," the Department of Minerals and Energy said. These findings were a culmination of a joint inquiry held in terms of the Inquest Act and the Mine Health and Safety Act to determine the cause of death of nine miners who died in an underground fire, the department added. "The findings reiterated that a formal risk assessment was not conducted to determine the consequence of a frictional fire or the effectiveness of the escape strategy. "It was stressed that the commissioning, operation, maintenance and decommissioning of belt conveyors should be such that mine employees can perform their work without endangering their health and safety or that of any other persons," the department concluded'. Bear in mind that Northam Platinum mines disputes these allegations. Click here for the relevant media articles.

The OHS Act makes similar provision for a joint inquiry / inquest in section 33 and I bemoan the fact that it is so seldom used. It is an ideal way to explore – properly – the cause of an incident utilising the services of a judicial officer who is schooled in the law of evidence. It would be particularly beneficial as a training exercise for inexperienced inspectors, the majority of which are employed by the Inspection & Enforcement Service of the Department of Labour. Inspectors would act as assessors and would be guided by the magistrate who would lead the proceedings. All parties would be entitled to legal representation and, although slightly more rigid, an inquest court would be guided by the same evidence that would be led at a formal inquiry. It would avoid all the unnecessary evidential objections which plagued the SASOL formal inquiry which was essentially the result of a presiding officer being a qualified engineer as opposed to an experienced judicial officer. (He would have been ideal as an assessor).

While not wishing to sound like a whinger lest I be advised to pack up my meagre belongings and emigrate, I bemoan, again, the lack of specialised OHS courts outside Gauteng.(As well as Mpumalanga, Limpopo and North West which falls within their jurisdiction).  Prosecutors make the call as to whether a joint inquiry / inquest should be held and it is highly unlikely that a non-specialist prosecutor would even know of these provisions in the OHS and MHS Acts. I also fail to understand why the SASOL formal inquiry was not held jointly with an inquest in terms of section 33 of the OHS Act. Perhaps it is because a magistrate’s time is at a premium these days?

This newsletter has been based solely on articles as they appeared in the media. Any suggestion that Northam Platinum mines is guilty of an offence is misleading and indicative of a failure to understand the nature of an inquest. Of late there has also been an irritating tendency by politicians to flout the sub judice rule and to make political capital out of workplace incidents.

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Regards

Raynard