The National Occupational Health & Safety Draft Bill, 2005

Section 101. Initiating inquiries

(1) The Chief Executive must direct an inspector to conduct an inquiry into any accident or occurrence at a workplace in respect of which an inquiry is required by regulation.

(2) The Chief Executive may direct an inspector to conduct an inquiry into -

(a) any accident or occurrence at a workplace, or in connection with working activities, that results in the death, injury or illness of any person;

(b) any occurrence, practice or condition concerning health or safety of persons at one or more workplaces;  or

(c) any actual or suspected contravention of, or failure to comply with, any provision of this Act.

(3) If the Chief Executive is satisfied that there is a cause for concern on health or safety grounds, the Chief Executive must direct an inspector to conduct an inquiry into any matter referred to in sub-section (2) if requested in writing to do so by –

(a) a registered trade union with members at the workplace or workplaces;

(b a health and safety representative or health and safety committee at the workplace;  or

© if there is no health and safety representative at the workplace, a worker.

(4) This section does not limit any other law regulating the holding of an inquest or other inquiry into the death of a person.

(5) It is not a requirement for the holding of an inquiry that –

(a) the subject matter of the inquiry has already been investigated in terms of this Part;

(b) that any investigation into the subject matter of the inquiry has been concluded.

Section 102. Inquiry in respect of matter that has been investigated

(1) A person is not prevented from being appointed to preside or assist at an inquiry because that person participated in an investigation into the same accident, incident or occurrence.

(2) Any statement, document or other evidence adduced during the investigation may, within the discretion of the presiding inspector, be presented at the inquiry.

(3) Any person instructed or summoned to give evidence at an inquiry is not entitled to refuse to give evidence only on the grounds that a statement had previously been given, or documents previously been adduced, during the investigation.

Section 103. Chief Executive may designate assistant in inquiry

At any time before or during an inquiry, the Chief Executive may designate one or more persons to assist in the inquiry or to preside at the inquiry.

Inquiry to be public

Section 104. Inquiry in Public

(1) An inquiry must be held in public.

(2) Despite sub-section (1), the person presiding at an inquiry may of that person’s own accord or at the request of a witness exclude members of the public or specific persons or categories of persons from attending the proceedings or part of the proceedings when the proper conduct of the inquiry requires such exclusion.

(3) The person presiding at an inquiry may make any order necessary to ensure that employees and members of the public have access to the premises in which the inquiry is held.

Section 105. Right to participate in inquiry

The persons listed in this section may participate in an inquiry and, either personally or through a representative, may put questions to witnesses and inspect any book, plan, record or other document or item presented at the inquiry.  The persons entitled to participate are –

(a) any person who has a material interest in the inquiry;

(b) a representative of any registered trade union with members at the workplace in respect of which the inquiry is being held;  and

© any health and safety representative responsible for the working place in respect of which the inquiry is being held.

Section 106. Powers of person presiding at inquiry

The person presiding at an inquiry may –

(a) instruct or summon any person to appear at any specified time and place;

(b) question any person under oath or affirmation;

© instruct any person –

(i) to produce any book, plan, record or other document or item necessary for the purposes of the inquiry;  or

(ii) to perform any other act in relation to this Act necessary for the purposes of the inquiry.

Section 107. Duty of persons summoned or instructed

(1) Subject to sub-section (2), every person giving evidence at an inquiry must answer any relevant question.

(2) The law regarding a witness’s privilege in a court of law applies equally to any person being questioned at an inquiry

(3) The person presiding at an inquiry may direct that any evidence given by a person during an inquiry may not be used for the purposes of any criminal or disciplinary proceedings against that person, except in criminal proceedings on a charge of perjury against that person.

(4) When a directive has been issued under sub-section (3), the person involved is not entitled to refuse to answer any relevant question only on the grounds that the answer could expose that person to a criminal charge or disciplinary proceedings.

(5) A person instructed in terms of section 106(c) must comply with that instruction unless the person has sufficient cause for not doing so.

Section 108. Inquiry records and reports

(1) A person presiding at an inquiry must –

(a) record the evidence given at the inquiry, including any evidence given with the assistance of an interpreter;

(b) at the conclusion of the inquiry, prepare a written report of the findings, recommendations and any remedial steps undertaken or proposed;

© submit a copy of the report and the record of the inquiry to the Chief Executive;

(d) supply a copy of the report and the record of the inquiry to the employer, any other responsible person concerned and to any health and safety representative, health and safety committee or registered trade union that requested the inquiry;

(e) submit a copy of the report and the record of the inquiry to the appropriate investigating authority; and

(f) on request, supply a copy of the report and the record of the inquiry to any person who has a material interest in the inquiry.

(2) An inspector may instruct the employer or the responsible person concerned to prominently and conspicuously display a copy of the report or any portion of it for employees to read.

Section 109. Chief Executive may order further inquiry

Upon considering the evidence and the report referred to in section 108, the Chief Executive may require that the matter be inquired into further.

Section 110. Enhancing effectiveness of inquiry

(1) For the purpose of enhancing the effectiveness of an inquiry, the Chief Executive, in consultation with the appropriate  Prosecuting Authority, 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 that is the subject of an inquiry.

(2) If a certificate is issued, in terms of sub-section (1), no administrative penalty or disciplinary action related to the event being investigated in the inquiry may thereafter be imposed on or taken against any person questioned during the inquiry in terms of this Part.

(3) The Chief Executive must communicate in writing the protection afforded under sub-section (1) to all persons questioned during the inquiry.

(4) Persons questioned during the inquiry 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.

Section 111. 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 58 of 1959).

(2) The judicial officer contemplated in the Inquests Act, 1959 (Act 58 of 1959), must preside at a joint inquiry referred to in sub-section (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 58 of 1959), apply to a joint inquiry.

(4)The assessor referred to in sub-section (2) must –

(a) prepare a report contemplated in section 108(1)(b);  and

(b) submit the report, the finding of the inquest and the record of the joint inquiry to the Chief Executive.

Section 112. Review of decision

Any decision by the Chief Executive, an inspector or any other person conducting an investigation or inquiry in terms of this Part is reviewable to the extent provided for in the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2002).