In 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 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 inquiry 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?
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