EFF members building the house for S'thandiwe Hlongwane in Nkandla in January.
At 4am on April 17 2009, Eric Peters (60) told his wife he would see her later. It was supposed to be his day off but he had agreed to stand in for a colleague at the Paarl Print factory, about 60km from Cape Town.
Four hours later he would be dead, killed in a blaze that destroyed 90% of the warehouse where he had worked as a printer for 30 years. The building was razed to the ground in minutes.
Nearly six years later, the families of the 13 people killed and the 10 injured in the fire still do not know the cause of it and have never had access to the findings of an inquiry, which the department of labour has refused to hand over despite a Promotion of Access to Information Act (Paia) application.
The National Prosecuting Authority (NPA) has declined to take criminal action based on those documents and the director of public prosecutions has yet to decide whether to hold an inquest.
A legal challenge has been launched in the high court in Pretoria by the Industrial Health Resource Group (IHRG) of the University of Cape Town and the families, citing the minister of labour, the department’s chief inspector of occupational health and safety and Paarl Print as respondents. The parties are attempting to force the ministry to make public the inquiry reports, with findings and recommendations, covered by section 32 of the Occupational Health and Safety Act.
It is hoped that this will set new case law that will compel the department of labour to make public its findings into workplace accidents. The applicants argue that, without public disclosure, there is no pressure on companies to improve safety conditions or be held accountable.
‘I want justice’
Eric Peters’s son, Chris, who has led the fight for the documents, said this week: “I want justice. I want someone to be held accountable. When I saw the CCTV footage of the fire, I saw my father. He was working; he had no idea that there was a fire in the building.”
The Chemical, Energy, Paper, Printing, Wood and Allied Workers’ Union and the National Union of Metalworkers are also supporting the action, which has been set down to be heard on February 5 next year.
Although the labour department has disclosed its findings in some cases, it has been rare, and generally related to criminal matters.
Despite an official probe, Eric Peters’s son Chris still doesn’t know what happened. (David Harrison, M&G)
The IHRG’s court papers say there are other families and unions that have asked for access to documents and waited in vain for answers about how other industrial tragedies occurred or what steps had been taken to prevent future tragedies.
Among these, the founding affidavit lists the 1997 fire at the Sasol petrochemical plant in Secunda in which 15 employees died; 10 cases of manganese poisoning at the Assmang manganese smelter in Cato Ridge in April 2007; the death of five employees at the same smelter after a furnace erupted in 2008; and the death of two workers after another furnace erupted in October 2008 at the Highveld Steel and Vanadium Corporation’s steelworks in Witbank.
Formal inquests
The IHRG’s director, Nick Henwood, said: “Formal inquests are the rare exception and oral testimony is rarely heard. In the vast majority of cases the inquest magistrate makes a finding on the basis of the section 32 inquiry record, supplemented by such further evidence as the director of public prosecutions has directed the police to obtain.”
The labour department rejected the Paia application, saying that the report had been forwarded to the provincial director of public prosecutions for consideration and action, which meant they could not hand over information pertaining to possible criminal action.
“But the NPA has now said that it does not plan to prosecute and the documents have still not been provided to the families or the unions represented at the factory,” Henwood said.
In his court papers, he said the possibility of a criminal inquest or trial is no consolation. “In the experience of the applicants, criminal prosecutions are rare and successful ones even more rare. This is, in part, because there is no body of legal or other precedents against which the general duty of care owed by employers to their employees can be measured.”
The applicants will argue that there is nothing in the Occupational Health and Safety Act that prevents the department from handing over its findings, and that failure to make public information relating to the causes of a workplace accident is inconsistent with the Occupational Health and Safety Act, Paia and the Constitution. The Act obliges the department to disclose the inspectors’ reports to “affected parties”, which the court papers argue are the family members.
Secret reasons
A public interest lawyer, Richard Spoor, who represented applicants at the inquiry, said: “The purpose of section 32 is both forward-looking, namely to determine the cause of the accident, and backward-looking, in that it seeks to ensure the adoption of preventative measures to avoid similar accidents in the future.”
Spoor said the consequence of failing to provide access to the accident reports “has the consequence of keeping the reasons for major workplace accidents a secret”.
Another argument put forward by the department for not handing over the documents is that employees cannot sue their employers in terms of South African law, because the Occupational Injuries and Diseases Act determines the amount of compensation that must be paid.
But Spoor said employees are not prevented from suing other parties who might be identified in the report, such as engineers, local municipalities, manufacturers or installers of equipment or roofing. “Without inquiry findings, it’s almost impossible to bring any kind of action,” he added.
The department of labour’s failure to provide the report also makes it difficult for victims or their families to approach the compensation commissioner for additional support. They must prove that the employer has been negligent.
The Paarl Print fire is believed to have started in the canteen at 7.45am. Questions asked at the hearing about the sprinkler systems and lack of partition doors were not answered.
Rapid blaze
Henwood said it is clear from video footage that “the fire spread rapidly, accompanied by clouds of dense smoke, reducing visibility almost completely. An explosion of gases caused the blast. It appears the people who died in the inferno were trapped by flames and blinded by the smoke and could not find their way out.”
Edwin Stoffels, who lost his wife Patricia in the blaze, leaving him with their two children, then aged three and seven, said: “I want to be able to tell my children one day that their mother did not die for nothing – that we changed a law so that this would not happen to other families.”
Stephen van der Walt, the chief executive of Paarl Media, which owns Paarl Print, said their application for access to the inquiry report was also denied by the department.
Paarl Media will not oppose the high court application.
The department did not respond to questions this week.