ANALYSIS | SOUTH AFRICA 

Silicosis: Laduuuma! But who moved the goalposts?

Mining companies prepare a new strategy

Photo of widow of Zwelakhe Dala, who died of silicosis.
Zwelakhe Dala passed away on 30 March 2015. His death certificate just states that he died of natural causes. He was 55 years old and was suffering from silicosis. He worked on the gold mines for 28 years and received no compensation when he got sick from exposure to the silica dust. “It is too painful. If my husband was not working on the mines, he would still be alive.” says his wife, Nosipho. Mrs Dala raised their five children on her own, for the most part. She is now left with no income except for a small pension. Photo: Thom Pierce
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The chief executives of the gold mines who are appealing against the historic silicosis judgement are extremely rich and globally powerful men, and what they say and do will have a major impact on who bears the cost of this disease, writes Pete Lewis.

Last Friday, the six companies which are members of the Occupational Lung Disease Working Group, announced that each had applied for leave to appeal to the Supreme Court of Appeal against the silicosis judgment in the South Gauteng High Court on 13 May. The companies are African Rainbow Minerals, Anglo American South Africa, AngloGold Ashanti, Gold Fields, Harmony and Sibanye Gold.

The issue affects between 250,000 and 500,000 former gold mineworkers suffering from work-related TB and/or silicosis from all over Southern Africa, and their dependents if they died or die between 2012 and the date of settlement.

On 25 June 2016, the High Court allowed the mining companies leave to appeal against the court’s decision to allow dependents of the mineworkers to benefit from any settlement (the “inheritance ruling”), but not against the class action certification itself. The six mines duly lodged the permitted appeal. In the past few days, they have filed leave to appeal the entire certification to the Supreme Court of Appeal.

The class action offers mineworkers hope for two reasons. First, any out-of-court settlement must be approved by the court “in the interests of justice”. This means that anything the industry offers the mineworkers must be proportionate to the true financial losses that the sick, and getting sicker, mineworkers have sustained, in many cases over decades, due to the burden of their disease. Such losses are far and away greater than any payouts they may have received, or are entitled to, from the official compensation system under the Occupational Diseases in Mines and Works Act, (ODIMWA), because they include income lost through their inability to work due to their disease.

Futhermore, the calculation of these damages must take into account the individual circumstances of every claimant, including how much he has already received through ODIMWA (usually nothing), the severity of the disease, uninsured medical costs he has had to pay, and his calculated loss of income over years, and in some cases, over one or even two decades.

Second, if the class action goes ahead, the mines must launch and pay for a huge information campaign at the mines, and in specified newspapers and radio across the subcontinent, to inform both former and current sick mineworkers that the class action exists, and that they are included in it unless they opt out. Not a single one will opt out.

This would greatly increase public pressure on the gold industry to settle fairly, in and beyond South Africa.

If the pronouncements of of the mines’ working group and the track record of the gold industry are any indication, the industry’s appeal process on the inheritance ruling will go all the way to the Constitutional Court if necessary. Anglogold Ashanti previously took the matter of the mineworkers’ right to sue for civil damages all the way to the Concourt – and lost.

The current round of appeals remove the immediate threat and cost to the industry of the public information campaign which the court ordered on 13 May. The threat of huge time lags of litigation might also further tempt the miners into a negotiated settlement without judicial oversight, which the mines would prefer.

If the mining companies do find themselves defending the class action in court on its merits, they will argue that they took all legally required steps to prevent silicosis and/or TB (ventilation, wetting down, training, blasting intervals, dust control and monitoring underground etc), and that they treated TB when it arose (in the mine hospitals). Silicosis is untreatable.

They will argue, as they have in the past, that they never sent workers home with silicosis and/or TB without informing them of their condition and its cause and that they were entitled to compensation. They will deny failing to offer workers assistance in getting compensation, and they will lay the blame on poor public health services in the areas the mineworkers came from. They will also cite administrative problems in the state compensation system and say they didn’t know about the epidemic of compensable respiratory disease amongst African gold mineworkers until fairly recently.

In reply, lawyers for the mineworkers will argue that the industry took no steps to find out about the vast burden of disease. They will point out that independent scientific research was ignored, belittled, or denied. They will offer affidavits from former mineworkers telling how dust was not controlled underground, ventilation didn’t work, blasting intervals were not observed, personal protective equipment and training on dust and disease prevention were not given, hostels and work clothing were full of silica dust, making the many regulations in the century-old Mines and Works Act not worth the reams of paper they were written on. They will argue that dust monitoring was only done to maintain the appearance of compliance rather than for any serious disease prevention program.

Every single head of argument put forward by the industry to deny its liability for the epidemic of silicosis and/or TB will be challenged if the merits of the class action case are finally heard in court, until something like the truth will emerge, and appropriate damages awarded. In identical cases in the past, with much smaller numbers of claimants, the mining industry has been content to settle out of court after years of litigation with no additional conditions attached. In Blom vs Anglo American, the company even conceded the “inheritance principle” that it is now appealing in the class action case.

In the current “big bang “class action case, however, with its enormous financial implications, the mines are going one giant step further. They want to settle not just out of court, but beyond judicial oversight. The mines’ appeal strategy is designed to block the legal remedy that mineworkers have pursued for years, in favour of “negotiated stakeholder agreements”.

And in the meantime, to set up a whole new compensation system which will lock in mineworkers and other workers for years to come. We will examine this strategy in the next article.

Pete Lewis is is a former senior researcher at the Industrial Health Research Unit at the University of Cape Town. This is the first of two articles on the implications of the silicosis court judgement in June. The views expressed in this article do not necessarily reflect those of GroundUp.

Letters

Dear Editor

Thank you for a balanced and clear report on the latest moves by the mining houses facing a massive class action. I look forward to your second report.

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