OHS Chat

I have been agonising over the content of this newsletter for quite some time. So long in fact that some of you thought you may have been removed from my Distribution List. Truth is that I was hoping that there would be some earth-shattering movements from government side vis-à-vis OHS but, as I have lamented in past, a eerie silence has descended upon us from governmental side. I guess DoL feels that the turnaround has been achieved?

So I decided to focus on the only show in town. The SASOL Formal Inquiry which has been received quite some media attention. And to be honest I am less than impressed by the behaviour of some of the participants or, for that matter, the ‘sensationalising’ of the matter by the media. Naturally my comments are based solely on media reports which have, in my opinion, also given disproportionate space to the unions and other parties to the prejudice of the employer. (Solidarity and the legal representatives for some of the families). Even the Minister has added his honourable opinion which isn’t very helpful either.

Sasol ontaard in doodsmasjien, sê Mdladlana. Die Beeld van 28 Januarie 2005. 'Sasol is besig om in 'n doodsmasjien te ontaard. Só het 'n ontstelde mnr. Membathisi Mdladlana, minister van arbeid, Donderdag tydens 'n radio-onderhoud gesê ná die gasontploffing Woensdagaand by Sasol se Natref-aanleg buite dié dorp. Mdladlana het oor RSG Sasol gewaarsku om "sy sokkies op te trek" en op te hou wegkruip agter die feit dat hy met gevaarlike chemikalieë werk. Mnr. Page Boikanyo, Mdladlana se woordvoerder, het by navraag gesê die minister het met dié uitlating bedoel dat die nywerheid juis verskerpte veiligheidsmaatreëls vir sy werkers moet instel omdat hy met gevaardike chemikalieë werk’.

Loose translation. SASOL becomes a death machine.

As most of you know a Formal Inquiry provides for participation by all interested parties, including unions, who may also all have legal representation. The law of evidence applies as if it was a court case and persons who testify are subject to the law of evidence (privilege) and enjoy certain Constitutional Rights. The founding fathers of our Constitution saw it fit to grant natural and juristic persons these rights and the exercising of these rights is fundamental in providing for the fair administration of justice. For purposes of this Newsletter I am focusing on only two of the fundamental rights that persons enjoy who testify at Formal Inquiries, namely the right to remain silent and the right to refuse to answer a question which may elicit an incriminating response. They are more-or-less the same. The excising of these rights should not be construed as an admission of culpability or something unsavoury and to brand persons who resort to one of these Constitutional Rights as persons who are hindering the administration of justice is downright naughty.

Battle to get Sasol workers to come clean on fatal factory blast. The Star of 20 July 2005. 'Tempers are rising as the inquiry into the Sasol Polymers explosion - which killed 10 workers - moves closer to uncovering the cause of the disaster. The Labour Department in Evander, Mpumalanga, almost shut down yesterday when the advocate representing a senior manager threatened to take the matter to judicial review if the presiding officer forced his client to answer questions put to him. At one stage, the victims' advocate suggested the inquiry must shut down. He said it appeared the inquiry was getting no closer to uncovering what had caused the blast and who was responsible. Two shift managers had on several occasions refused to answer vital questions that could cast light on the sequence of events that led to the explosion on September 1 last year. The legal representative for the victims became visibly irritated yesterday when the witness’s legal representative said his client refused to answer questions because he feared incriminating himself. He had asked the witness to outline a conversation he had with an outside contractor who allegedly was the person who caused the blast by accidentally releasing an explosive mixture of ethane and ethylene into the work area. When the victim’s legal representative insisted that the witness, rather than his legal representative, say why he refused to answer, the witness’s legal representative said: "The exchange between the outside contractor and my client could clearly be an incriminating question. "He was the one who removed the orifice plate. Whatever happened that morning could incriminate anyone." The victim’s legal representative shot back that it was "wrong that lawyers interfere. It's up to the witness to say why he refuses to answer the question. "The presiding officer, Labour Department chief inspector Pieter Laubscher, then told the witness to answer the question. "If that's your ruling, then we will challenge it. We will be taking it on review," the witness’s legal representative threatened.

Witnesses hamper Sasol probe. News24 of 19 august 2005. 'The trade union Solidarity says a lack of co-operation is causing unnecessary delays in the labour department investigation into last September's blast in Secunda that killed 10 people. The investigation started in October 2004 and may not be completed this week, as Solidarity had hoped, the union said on Friday. Solidarity chemical industry spokesperson Marius Croucamp said the delays were regrettable. "Solidarity is concerned that there seems to be no co-operative effort to disclose the truth. Witnesses who exercise their right to remain silent delay the process, because other witnesses then have to be called. "Information is not offered voluntarily, which means the enquiry proceeds in dribs and drabs. "Solidarity will continue to do all in its power to ensure the truth comes out so that steps may be taken to improve safety at Sasol’.

I find it disconcerting that various informed participants at the inquiry do not reflect, before going public, on the emotional impact of their attacks on persons who resort to their Constitutional Rights. Unlike a trial, bereaved families can participate either directly or via their legal representatives and sometimes even both. Understandably presiding officers are known to give them much latitude. The result is that emotions will run high especially when the Inquiry is held soon after an incident. (This matter has been fast tracked as there are countless uninvestigated – by DoL - fatal workplace accidents which date back many years). As pointed by the legal representative for SASOL, with fatal accidents there is always a possibility that charges of culpable homicide may brought against the company and / or individuals. Culpable homicide is a very serious common law crime and a conviction, particularly of persons in their personal capacity, can be both traumatic and life changing. A criminal record which shows that a natural person killed someone in a negligent fashion could impact upon their lives in many ways least of all global travel, job applications etc. Directors of companies who are convicted may even be compelled to resign in terms of the Companies Act. Juristic persons or companies can also be convicted of culpable homicide and could face corporate governance sanctions. It is only fair that persons who may be charged with numerous counts of such a serious common law crime be afforded the unwavering right to use all legal mechanisms at their disposal - lest the inquiry degenerates into a feeding frenzy. These persons’ testimony can also result in the company (employer / user) being incriminated. Subscribers and participants at my workshops will recall the article that I wrote on ‘Corporate Privilege’. Since the Bill of Rights to the Constitution also applies to juristic persons (companies), I posed the question whether a person can refuse to answer a question which does not necessarily incriminate himself but incriminates another employee of the company and thereby potentially the company.

Sasol vows to defend workers linked to 2004 blast. SABC of 19 August 2005. 'Sasol says it has employed the country's top legal brains to ensure that workers alleged to be involved in last year's fateful explosion at the Secunda plant receive the best legal representation. Most of the workers who have testified are Sasol employees who received free legal representation. Pieter Conradie, a spokesperson Sasol, says the company feels very strongly about protecting its employees. "Peoples' lives are at stake here. People may be charged with culpable homicide and for that reason Sasol decided to employ top legal people for their employees’.

Courts use a variety of evidential mechanisms to determine fault without necessarily having to compel admissions or even confessions out of an accused person. Courts can determine the cause of an incident as well as culpability by looking at the evidence in toto and making certain reasonable possible conclusions. It is therefore regrettable that persons who utilise the right to refuse to answer an incriminating question are portrayed as villains. It is no wonder that emotions are running so high culminating even in death threats. To attack persons who refuse to answer such questions sends a disturbing signal to the bereaved family members who normally do not appreciate the legalities involved. And they have found a willing ally in the media which seems to relish in the slanging match. Perhaps with less pontificating and pandering to the media the inquiry will be streamlined and concluded?

It should be remembered that the right to refuse to answer a question which may elicit an incriminating response is not absolute. The Constitution provides for legislation to be passed which can infringe upon a persons rights as per the Bill of Rights. You may recall the ‘notorious’ Criminal Procedure Act section 205 subpoena which was used quite extensively in the past by the authorities to get / squeeze journalists to reveal their sources. (Although we did not enjoy the benefit of a Constitution in those days, the right to remain silent was afforded in terms of the law of Privilege in the Criminal Procedure Act). And section 205 is still on the statutes!

Closer to home we already have OHS legislation which essentially does the same thing. Section 63 of the Mine Health & Safety Act, under the heading, ‘Enhancing effectiveness of investigation’ reads:

(1) For the purposes of enhancing the effectiveness of an investigation in terms of section 60 the Chief Inspector of Mines of Mines, in consultation with the appropriate Attorney-General, may issue a certificate that no prosecution may be instituted in respect of any contravention of, or failure to comply with, a provision of this Act related to the event being investigated. If a certificate is issued, no fine in terms of section 55D or disciplinary action related to the event investigated may thereafter be imposed on or taken against any person.

(2) The Chief Inspector of Mines must communicate in writing the protection afforded under subsection (1) to all persons questioned during the investigation.

(3) Persons questioned during the investigation who are afforded protection under this section must answer every question to the best of their ability and may not refuse to answer any question on the grounds that the answer may be self-incriminating.’

It begs the question. If this indemnity against prosecution was written into the OHS Act could it perhaps have been used to diffuse the situation? After all the lament has been that persons refusing to answer certain question are hampering the endeavours to find the root cause of the accident and thus learn from that experience and prevent a recurrence. Those who have been complaining about it have not indicated that they specifically want this right to be waived so as to have persons ultimately prosecuted and convicted?

In the end those who profess to want the inquiry to move forward are in actual fact obstructing its progress. It is no wonder that SASOL’s legal representative has threatened a pullout by SASOL. Constant interjections disrupt the flow of an inquiry. According to a media report SASOL’s legal representative is also on record for being frustrated by constant objections to leading questions put to witnesses. Leading questions are not prohibited. Parties can agree to allow leading questions, leading questions may be put to witnesses where they pertain to something that is common cause or to lay a certain foundation in evidence. And, most importantly one can put leading questions to witnesses that are called by other parties i.e. not one’s own witnesses. Now surely most witnesses at an inquiry are called by the presiding officer – like court witnesses – and thus leading questions may be put to them?

Sasol explosion probe postponed to January. SABC of 20 August 2005.'The Commission of Enquiry into last year's Sasol blast in Secunda has been postponed to January next year. Ten people died in the explosion and more than 300 others were injured. The Commission is expected to call two more witnesses when it resumes. Chris Eloff, the Sasol lawyer, has expressed concern that the commission has not yet reached a decision. Sasol's legal counsel earlier threatened to withdraw from the Commission of Enquiry into last year's blast in Secunda because of, what they say is the unruly behaviour of a lawyer for trade union, Solidarity. Advocate Chris Eloff says he will withdraw his legal team and witnesses if Commissioner, Peter, Loubsher, does not call Richard Spoor to order. Eloff became increasingly agitated after Spoor interjected during the line of questioning to a Sasol employee.

Solidarity urges Sasol not to pull out of probe. SABC of 22 August 2005. 'The trade union Solidarity has called on Sasol to reconsider its threatened withdrawal from the department of labour investigation into last year's fatal blast at its Secunda plant. "It would simply make no sense to withdraw at this stage," said Marius Croucamp, Solidarity's chemical industry spokesperson. Sasol's legal team made the threat during a heated debate with Solidarity's legal representative Richard Spoor at the fifth session of hearings in Evander last week, he claimed. It came after Spoor objected to what he contended were leading questions being put to witnesses, and amid several threats by the Sasol team of court actions and interdicts. The purpose of the probe was to uncover the cause of the incident. "A withdrawal will not serve this purpose," said Croucamp. Accusing Sasol of keeping secret the findings of its own, internal investigation, he said the department of labour probe had made progress last week with evidence "which brought us closer to the real causes of the incident." Croucamp said Sasol's threat had extremely distressed the families of those who died in the blast and who had made several complaints in this regard to the union. They were also upset at not yet having received the R5.8 million compensation reportedly being awarded by Sasol. The probe has been postponed till January next year'.

Through the haze one is clear. It could be you at receiving end. As things stand I often feel that we are becoming complacent about the ramifications or implications of incidents. We see no real improvement in DoL’s performance as regards the policing of the Act and sermons delivered by persons like myself begin to sound very hollow. The sad truth about the SASOL Formal Inquiry is that it is the exception to the rule. Most dependants of deceased workers - if one focuses on fatal accidents – never have proper legal representation. Most are kept waiting for years on end without knowing the truth. Within DoL OHS is the poor cousin to other more popular ‘labour legislation’. Another sad truth. COSATU, and perhaps unions in general have a poor record vis-à-vis OHS. Reactive point-scoring after a tragic accident is the not the way forward. The question in my mind. Why do unions always lament the lack of safety AFTER an incident? Surely they could participate in the health & safety committees and any other forums creating to improve workplace safety in a proactive manner? I rest my case.

Click here for more on the Formal Inquiry.

As Always

Your Devil’s Advocate