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LEGAL TIMES
Friday October 21 | 2011
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LEGAL TIMES
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KNOW YOUR RIGHTS / KNOW THE LAW
WESSEL BADENHORST
I
N THE late 1980s, two Russian words came to epitomise
Mikhail Gorbachev’s vision to
rebuild his country’s economy
and its relations with satellite nations and the West. Glasnost (openness or transparency) and perestroika (restructuring) soon became
household words representing the
arduous struggle of change facing
the Soviet leader.
These words have meaning for
the mining industry too.
Since the implementation of the
Mine Health and Safety Act, No 29
of 1996 (MHSA) some 14 years ago,
inquiries into fatal accidents on our
mines have become commonplace.
In recent years, responsible mining
companies have insisted on legal
representation during these inquiries and, if I may say so, for good
reason. Consequently, health and
safety representation has become
a specialist and recognised field of
legal practice.
The ideal of the MHSA is that
the Department of Mineral Resources (DMR) should investigate and inquire into every serious accident or
death. Such inquiries serve several
purposes. Firstly, they are designed
to uncover the reasons for the accident. Secondly, they provide the
platform for both the mine and the
mining industry as a whole to learn
from the accident and, in so doing,
to introduce measures to avoid the
risk or failure that resulted in the
accident. Thirdly, those persons
who hold statutory responsibility
for the safety of mineworkers are
held accountable. This accountability may ultimately result in criminal
conviction of those responsible.
As so often in life, there is a gaping chasm between the ideal and the
reality. In an industry where there
are, on average, 11 fatal accidents
per month, one understands that
the inquiry process receives its fair
share of political attention. As she
did last year, the minister again, in
her budget speech in June, spoke of
ways to “enhance the possibility of
prosecutions” in the mining industry. To this ideal, the minister indicated that the DMR will soon have
specialist investigation teams and
legal advisors in regional departmental offices.
But does this political fascination
with prosecution really help us?
South Africans have struggled
for and are proud of our constitution – one which holds its own with
the most developed in the world.
Enshrined in this is a developed
criminal justice system, which has,
at its foundation, the right against
self-incrimination.
During the investigations conducted by the DMR following a serious accident or fatality, as well as in
the more formal inquiry process, the
MHSA compels persons to answer
MINE HEALTH AND SAFETY ACT
GLASNOST AND
PERESTROIKA
WHAT DOES THE FUTURE HOLD FOR FATALITY INQUIRIES IN THE MINING INDUSTRY?
all questions posed by the DMR inspectors, save where such answers
may be self-incriminating. The right
against self-incrimination is meaningless if required to stand in isolation. Effective legal representation
contextualises this right and gives
meaning to it. This explains the insistence by most mining companies
of legal representation at fatality inquiries. All good and well then?
Not quite. Firstly, legal representation at inquiries is not absolute and, secondly, is insisting on
legal representation only at the inquiry stage not leaving it too late?
In the Free State DMR June
2011 newsletter, the DMR has, for
the first time since the advent of the
MHSA, publicly taken the view that
lawyers do not have an automatic
right to represent clients at fatal inquiries. You see, these inquiries are
not courts of law, and in the murky
world of trying to draw distinctions
between quasi-judicial and pure
administrative action, one cannot
really argue for an automatic right
to representation by your lawyer of
choice.
Although the MHSA grants persons the right to be represented, it
does not expressly elevate this right
to legal representation. The highest courts in South Africa have pronounced that in similar situations,
like disciplinary inquiries convened
by universities, or in arbitration proceedings before the Commission for
Conciliation, Mediation and Arbitration (CCMA), there is no automatic
right to legal representation. Indeed,
it seems the DMR has adopted similar arguments to those which were
made by the CCMA when it successfully argued against the automatic
right to legal representation.
It follows that, should it become
DMR policy not to automatically allow legal representation at mining
inquiries, we soon will see investigating officers requiring lawyers
to justify their presence. Although
there are several “in principle” arguments that can be made for legal
representation, such as the effective application of the right against
self-incrimination and that an in-
WESSEL BADENHORST,
mining expert
“
Is insisting
on legal
representation
only at the
inquiry stage
not leaving it
too late?
quiry record may be used against a
person in subsequent criminal proceedings, the hiatus of an unchallenged right to legal representation
may soon come to an end.
This holds certain implications
for mining companies. In making a
case to be legally represented, one
will have to go further than the “in
principle” arguments. The complexity of the matter, the importance of
the particular investigation and the
ability of persons to properly participate in the inquiry may all have to
form part of a substantive argument
to allow legal representation at the
commencement of the inquiry. And
if legal representation is disallowed,
the investigating officer will have
the right to proceed with the inquiry, which will require the mines to
deal with several possible outcomes
instantly.
The first phase of the investigation process often results in a preliminary investigation report issued
by the DMR. This first phase starts
with the in loco inspection attended
by the DMR and includes the presentation made by senior mine executives to the principal inspector
to uplift any section 54 stoppage order, which are these days invariably
issued after fatal accidents. The
presentation is not privileged and
may be relied upon by the DMR in
its investigation.
Ill-considered statements made
to the DMR may come to haunt
executives. In this first leg of the
process, interviews take place and
statements are collated before the
report is issued. If legal representation is not insisted on during
this phase of the process (where
the right against self-incrimination
is the same as during the inquiry
phase), why insist on legal representation in the subsequent inquiry
phase only? Such belated requests
for legal representation attract the
risk of a counter-argument that the
DMR already obtained answers to
incriminating questions during the
investigation and, even worse, that
the right to legal representation
during the DMR investigation may
have been waived.
Do not fall victim to procrastination. It is a luxury which will soon
pass. It is best to have legal representation from the onset of the
investigation process and not only
during selected parts thereof. Onthe-ground legal representation at
short notice may soon become an
operational requirement of mining in South Africa. It would seem
the minister has begun to ready
the DMR for this by identifying the
need to station legal advisors in
DMR regional offices.
The primary focus of any forensic investigation into an accident
must be to find out what happened
and how it can be avoided. “Who is
to blame” must play second fiddle.
Put differently, focusing on the former of these ideals does not mean
that we need the threat of criminality to incentivise proper investigations and implementation of remedial action.
The mining industry has embraced the ideal of zero harm. Unsafe mining and accidents, without
fail, punish the mining industry and
the individual mines. With an average cost of about R4m per day, the
financial punishment of section 54
stoppage orders far outstrips the
value of any administrative fine
which can be imposed, or fine imposed by a criminal court.
Serious accidents and fatalities
cost the mines irrecoverable financial harm, and the careers of those
who cause this will inevitably be
transient. This, in itself, brings a
real economic incentive to ensure
that health and safety are continually improved. It is the proverbial
carrot which, in real terms, outperforms the stick of criminal sanction.
With all of this, it becomes plain
that the obsession with criminal
prosecution and the insistence on
maintaining criminality as a primary tool to discourage errant behavior at mines eclipse the primary
ideals of the process. How can there
be an open and transparent investigation when the smell of criminal
sanction hangs acidly in the air?
Perhaps it is opportune, when
reassessing the MHSA, to reconsider the wisdom of hunting for illusive
criminal convictions. It may (regrettably) require the relinquishing of
an opportunistic political platform,
so often unfairly used in the aftermath of accidents, but an unwavering emphasis on and commitment to
the primary goals of the MHSA will
be more salutary.
In a spirit of glasnost and perestroika, should we not candidly admit that the only meaningful goals
can be to uncover the facts and to so
enhance best practices in pursuit of
the saintly ideal of continuous improvement to health and safety?
Wessel Badenhorst is a director in
ENS’s mining department.