Access to fatal inquiry reports under the Occupational Health and Safety Act

Section 32 reports under the Occupational Health and Safety Act, 85 of 1993, as amended (OHS Act) will now be more accessible due to the Gauteng High Court's recent judgment Industrial Health Resource Group & others v the Minister of Labour and others (7 August 2015).

On 17 April 2009, a workplace fire broke out at the Paarl Print factory in the Cape. Tragically, thirteen people lost their lives. Ten of the thirteen applicants in the landmark case were the casualties' next of kin (Applicants).

The fatal inquiry was presided over by an inspector in terms of s32 of the OHS Act. In accordance with his statutory duties, the inspector heard extensive evidence in the matter and compiled a written report (Report) detailing the causes and circumstances of the accident.

In terms of s32(10) of the OHS Act, the inspector submitted the Report to the Chief Inspector and the National Director of Public Prosecutions (NDPP), the latter of which is tasked with initiating, if deemed necessary, any prosecutions.

The Applicants asked the Chief Inspector to send them a copy of the Report. In response to this request, the Applicants were informed of the blanket policy not to make such reports available to anyone except the National Prosecuting Authority (NPA). During the case, the respondents (including the Minister of Labour, the original inspector and the Chief Inspector) put forward three arguments as to why the Applicants should not be entitled to a copy of the Report:

• the OHS Act does not allow an interested party to have access to the Report;

• any disclosure of the Report would violate the principles of co-operative governance enshrined in s40 and s41 of the Constitution; and

• by virtue of s35 of the Compensation for Occupation Injuries and Diseases Act, No 13 of 1993 (COIDA), affected employees or their dependants cannot sue employers for damages arising from injuries or death caused by a workplace accident and hence the disclosure of the Report would be of no value to them.

The primary issue before the court was whether the Applicants, and similarly situated interested parties, were entitled to be furnished with a copy of the Report. The court found that the answer lay in an interpretation of s32. In coming to its decision the court acknowledged that s39(2) of the Constitution requires courts to promote "the spirit, purport and objects of the Bill of Rights" when interpreting legislation. It is trite that words in a statute must be given their ordinary grammatical meaning, unless doing so would result in absurdity.

The court found that "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. In this view, it is absurd to confer on interested parties a right to appeal against the finding of a report and at the same time deny access to the report." The court was referring to s35(1) of the OHS Act which permits an aggrieved person the right to appeal a decision of the Chief Inspector. Such a right could not be exercised without regard being had to the content of the s32 report.

The Court found that allowing interested parties access to s32 reports, would protect and promote various rights in the Bill of Rights and other important values enshrined in the Constitution.

This judgment does away with the Department of Labour's prior blanket policy to refuse anyone except the NPA access to a s32 report.