Dear OHS  Practitioners

I guess this will be my last newsletter to you this year. I’m starting to unwind already. Since most of you are invariably involved in internal investigations, I know that you would be interested to hear what is proposed in this regard in the National Occupational Health & Safety draft Bill of 2005. Ever since I can remember OHS legislation has required employers to internally investigate certain incidents with the aim of preventing a recurrence. Essentially these have been any incident which gives rise to medical treatment over and above first aid, dangerous occurrences and abnormal observations emanating from medical surveillance and biological monitoring. In certain cases these incidents are required to be reported to external OHS policing authorities who would then decide whether to investigate or formally inquire into the incident. The downside of these external investigations is that these authorities could recommend that corporate bodies and individuals be prosecuted for contraventions of OHS legislation and, in the event of a fatal accident, for culpable homicide. (The latter decision can only be made by the National Prosecuting Authority (NPA)). The effect of this is that, post an incident, a certain degree of paranoia descends upon persons who then resort to their (now) constitutional rights to remain silent and this could impact negatively upon the search for the truth. (Remember the furore surrounding the SASOL formal Inquiry when individuals utilised their constitutional rights to remain silent and against self-incrimination?). This has obviously frustrated the OHS authorities who, in later OHS legislation such as the MHS Act, introduced a provision whereby persons could be deprived on these rights in exchange for immunity against prosecution. They would then be compelled to answer all questions even if they are incriminatory. It is proposed to incorporate this provision into the NOH&S Bill.

In another attempt to limit the impact of selective evidence, section 29 of the Bill proposes to provide privilege to internal investigation reports. Employers will be compelled to compile a report after an investigation into every incident that is reportable, causes serious illness or results in a health-threatening occurrence and to deliver this report to the National Occupational Health & Safety Authority within 30 days or such longer period as the Authority permits. A report prepared by an employer in terms of this section may not, without the employer’s consent, be used as evidence in any civil or criminal proceedings concerning that accident, illness or occurrence. While we all know what a civil proceeding is, where persons sue for damages, it begs the question. What is a criminal proceeding? Is it a criminal trial only or does it encompass an investigation or formal inquiry by the Authority? Since there is no definition of a criminal proceeding, my knee-jerk reaction is to assume that a criminal proceeding is a criminal trial? Then, on the otherhand, it could be argued that an investigation or inquiry into an incident takes place in terms of criminal legislation and that they are therefore criminal proceedings? If investigations and inquiries are not criminal proceedings, then these reports are not privileged and they can be used in these inquisitorial procedures. And that will surely defeat the purpose of the exercise because the reports can be used to elicit evidence which could ultimately be prejudicial to the employer. For example. You play open cards in this report, waiving your rights to silence and non-incrimination because you thought the report was ‘protected’, only do discover that the inspector is using it as a basis to elicit potentially prejudicial evidence for his / her own ‘unprotected’ report to the NPA and CEO of the Authority. (The new name for the Chief Inspector).

I have always encouraged employers to compile a report after an incident to DoL or DME despite current OHS legislation not explicitly requiring it. I have also encouraged employers to have these reports ‘cleansed’ of any incriminatory evidence since it is our constitutional right to do so. If indeed a ‘criminal proceeding’ is limited to criminal trials only in the Bill, I don’t really see the point of giving such reports any particular special status. The rationale behind this privilege must surely be to encourage employers come clean without the risk of exposing themselves to prosecution or civil suits and if it is not extended to the preceding inquisitorial procedures this won’t happen. Oddly enough I cannot find a provision in the Bill pertaining to reporting of incidents.

Anyway I guess this debate is premature although us legal people always get carried away when confronted with the question of privilege. Perhaps because our advice to clients is privileged and cannot even be exposed in terms of the Promotion of Access to Information Act.

Other news. You may have read and heard on SAFM that the head of the OHS Court in Pretoria has decided that no-one can be held liable for collapse of the Injaka bridge some eight years ago. This despite the fact that the inspector recommended prosecution and ECSA (Engineering Council of SA) has decided to institute action against some of the engineers involved for negligence. Click here for more. I have a page dedicated to the incident and you can access it by clicking here.

Enjoy your holidays.

Regards

Raynard

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