Following the Chief Inspector of Mines’ publication of a guidance note on Medico-Legal Investigations of Mine Deaths, which aims to provide certainty about the processes to be followed in the event that the cause of a death at a mine is not immediately clear, law firm Webber Wentzel partner Kate Collier has highlighted some of the basics employers should be aware of.
The guideline should be used to assist in determining whether mining-related activities at a mine may have contributed to the cause of death in the event of a fatality. Of particular relevance to employers are several principles, she noted, which are reinforced in the guideline.
The timeous reporting of any death on a mine site and the start of an investigation in terms of Section 11(5) of the Mine Health and Safety Act (MHSA) is key, as is the proper barricading of the area where the accident occurred or the deceased person was discovered, as well as the timeous recording of names of witnesses and other relevant details.
She advised that the employer should note, in writing, the observations at the accident scene, as well as take photographs of the undisturbed scene and to make a note of environmental conditions.
The need to bring the death to the attention of the occupational medical practitioner (OMP), or any medical practitioner as soon as possible, who must certify the death, is also of relevance to employers.
The medical practitioner, who may also be the OMP, is required to examine the body of the deceased person and to indicate if the likely cause of death was natural or unnatural, Collier noted, adding that, if a death is certified as natural, taking into account the factors listed in the guideline, no further investigation is required.
However, in cases of uncertain or unnatural causes, a medical practitioner must submit the body of the deceased and all relevant information for a medico-legal examination as soon as possible.
Notably, Collier pointed out that, according to the Act, “no medical practitioner may perform a post mortem examination on the body of a deceased person unless it is specifically done in terms of the Inquests Act”.
This includes “the full involvement [of] and consent from” the South African Police Service (SAPS), unless in the case of a death as a result of natural causes, with the consent of the next of kin or consent of the deceased before death.
Attendance at the post mortem examination remains regulated by the provisions of Section 3(5) of the Inquests Act, Collier said.
The OMP must also arrange for the removal of cardiorespiratory organs in accordance with the Occupational Diseases in the Mines and Works Act, Collier added, reiterating that it is important to ensure that consent from the employee, prior to death, or relatives, after death, has been obtained.
Further, the duties of the various role-players from the Mine Health and Safety Inspectorate are also reinforced in the guideline. Inspectors are advised to take sworn statements from witnesses, wherever possible, during the Section 60 MHSA investigation.
Any suspected irregularities outside of the scope of the MHSA must be reported to the SAPS, Collier pointed out.
“Inspectors are also advised to make arrangements and coordinate inspections in loco with the mine manager, union representatives and other experts to avoid delays or duplication,” she noted.
The Mine Health and Safety Inspectorate must also vigorously follow up on recommendations and remedial actions under Section 64 and Section 71 of the MHSA, she added.
The inspectorate is expected to work with the SAPS to ensure that all deaths are investigated and that there is no gap in these investigations owing to a claim that a death is not related to mining, while also ensuring that, if the findings of the post mortem examination link the death to activities and conditions at the mine, these activities and conditions are considered during statutory investigations and inquiries under the MHSA.
The inspectorate should also assist the National Prosecuting Authority, SAPS and magistrate in any inquest that may follow.
“Notably, the medical inspectors can communicate with the OMP for required medical information and may request a copy of the post mortem examination report from the SAPS and communicate with the forensic pathologist for relevant information,” Collier highlighted.
She added that the post mortem report must be used for purposes of completing the Section 60 MHSA investigation report.
Additionally, access to and confidentiality of the post mortem examination report is also addressed in the guideline and provides that the completed examination reports are to be handed to the SAPS investigating officers, and that no copies of the completed relevant documentation relating to the post mortem examination may be divulged to any persons except government officials who may require this information to perform duties in terms of specified legislation, such as the MHSA.
All other requests for completed reports must be referred to the SAPS investigating officer or magistrate.
Collier pointed out that, according to the MHSA, "… attorneys are not government officials and must obtain a copy from the magistrate".