Groundbreaking High Court Ruling
SIX years after a fire at the Paarl Print Factory that left 13 people dead and 10 injured, the victims’ families may finally know justice and have their dignity restored.This follows Judge Elias Matojane’s groundbreaking ruling paving the way for many others in similar situations.
In the North Gauteng High Court, he ordered that interested parties may in future receive a copy of an inquiry report into workplace accidents, on request to the presiding inspector of the Department of Labour.The department had refused to hand over the report into the blaze at the factory on April 17, 2009 – until now.
The fire at the factory spread rapidly and four hours later, about 90 percent of the warehouse, which operated as a printing factory for about 30 years, was destroyed. An initial investigation concluded that heat from cooking oil in a chip fryer caused the fire. The oil apparently self-ignited.
The department stated that the Occupational Health and Safety Act (OHSA) did not allow for interested parties to have access to the report into the inquiry. It said disclosure to anyone other than the chief inspector and the National Prosecuting Authority (NPA) would violate the principles of co-operative governance enshrined in the constitution.
It was further said that because employees injured on duty, or the dependants of those who died as a result of injury on duty, were not entitled to sue their employer for damages arising from the incident, they did not need access to the report.
The families, together with the Industrial Health Resource Group (IHRG) of UCT, turned to the high court in Pretoria to force Labour Minister Mildred Oliphant to make public inquiry reports regarding findings into workplace accidents.
Judge Matojane said the government’s interpretation of the OHSA undermined constitutional values of transparency and accountability.He said the constitution provided that everyone had the right of access to information held by the state. In withholding the information, the state had deprived interested parties of their right 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 these reports.
“Without access to the reports, employers and trade unions are also hampered in their ability to ensure health and safety. 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 receiving these reports would allow employees and unions to hold employers accountable by ensuring they complied with the recommendations and findings contained in the report.
Under the OHSA, aggrieved parties may appeal the findings of these reports. But the judge said it was “absurd” to say parties may appeal, while at the same time they were denied access to the report.
Judge Matojane declared that the department’s policy of refusing access to a section 32 inquiry report in all instances, and without regard to the circumstances of each case once the report was referred to the NPA, was inconsistent with OHSA and the Promotion of Access to Information Act.
The actual order:
- It is declared that the person 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.
- 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.
- 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.
- 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