An application to have a Labour Department inquiry into workers’ exposure to poisonous fumes at a Cato Ridge ferromanganese smelter dismissed because of alleged bias was itself dismissed on Tuesday afternoon by the inquiry’s presiding officer.
Labour Department inspector Vuli Sibisi announced to loud cheers that he was refusing an appeal requesting that he recuse himself from the inquiry in 40 alleged cases of manganese poisoning at the Assmang ferromanganese smelter near Durban.
Earlier, Assmang was accused of trying to delay the inquiry. Richard Spoor, the attorney representing workers at the smelter, described an application to have Sibisi removed as ”a self-serving attempt to frustrate this inquiry”.
Willem le Roux, the attorney representing Assmang, had applied for the inquiry to recuse itself because there ”was a reasonable apprehension of bias” towards the Assmang management.
Addressing the inquiry, Le Roux said: ”There are good grounds that the openness and impartiality are lacking.”
The inquiry is investigating an alleged 40 cases of manganism that have resulted in workers breathing in fumes containing airborne manganese particles.
Manganism is acquired by overexposure to airborne manganese and is a disease that affects the sufferers’ central nervous system, leaving them with symptoms similar to those of Parkinson’s disease and multiple sclerosis (MS).
Spoor said: ”The position of my clients is that this application should not be granted.” He described Le Roux’s application as ”being brought for strategic and tactical reasons”.
Le Roux had earlier cited several cases, including Supreme Court and Constitutional Court judgements, which had ruled that a ”suspicion of bias” or ”an impression of predisposition” was sufficient to request that Sibisi and his panel recuse themselves.
Testimony
He also said it was highly irregular that the inquiry planned to allow testimony by a member of the panel formed to assist Sibisi. ”He would like to be a witness in the case and judge the case himself. This is a gross irregularity.”
However, Spoor argued that Sibisi alone was the presiding officer for collecting evidence. ”The application for the panel to recuse itself is nonsensical,” he said, also arguing that Sibisi would submit a report to guide the director of public prosecution in making a decision.
Le Roux complained that when he had tried to submit a report on Assmang, Sibisi allegedly responded: ”I know what manganism is.”
”It was clear to me then that you had already made up your minds,” said Le Roux.
He also said that the composition of the panel was problematic and members on the panel were being changed ”willy-nilly”. Such random changes would leave panel members with ”partial information” and would not constitute a ”fair hearing for the company”.
Le Roux also questioned the impartiality of two of the panel members who were seen to be holding discussions with workers who suffer from alleged manganism.
”This shows a lack of open-mindedness,” said Le Roux, adding that panel members should not mix with any of the parties involved in the inquiry.
”I apply for the recusal of yourself and the panel,” said Le Roux.
”This is not a trial. The presiding officer is not a judge. There are no decisions and there are no findings,” Spoor replied, saying that Sibisi’s primary role was to lead evidence. Sibisi was ”not a neutral party adjudicating. He is more in the position of being a policeman than a judge.”
In rebuttal, Le Roux said the report that would be submitted by Sibisi would contain a recommendation on whether to prosecute.
Of the 40 alleged cases, 10 persons had been confirmed as having manganism.
However, on Monday evening Assmang issued a statement saying that it wanted the 10 confirmed cases to be re-examined and that ”on the available evidence, none of the 10 people who were diagnosed as having manganism can be considered to have manganism”. It said that further investigations were needed.
On Monday, an explosion that ripped through the Assmang ferromanganese smelter on Sunday and claimed the lives of five people sparked protests by workers as the Labour Department inquiry was about to start.
A blast and subsequent fire at the Assmang ferromanganese smelter in Cato Ridge claimed the life of one person, but a further four died from wounds they sustained. Another five were on Monday still being treated at hospitals in Durban and Pietermaritzburg. — Sapa