BILL OF HEALTH - JSE MAGAZINE

BILL OF HEALTH

Since the end of apartheid there has been an expansion of medical oversight and a focus on accountability in the relationship between miners and their employers

BILL OF HEALTH

For almost a century the disease risks facing black mineworkers were often discussed only tangentially – an afterthought to the problems encountered by white miners. But in the last two decades medical researchers, lawyers and others have increasingly drawn attention to the long-term health of all former miners, and shortcomings in previous compensation mechanisms. In the gold mining sector thousands of former workers have been afflicted by work-related silicosis and this has translated into a surge of recent legal action against mining houses.

Silicosis is one of several occupational diseases caused by inhaling fine mineral dusts, alongside asbestosis and the colliers’ ‘black lung’. The historic prevalence of silicosis among SA’s gold miners stems from a failure to adequately limit mineworkers’ exposure to silica particles in the crushed rock of the goldfields. SA was at the forefront of research and legislation regarding the disease. The country passed early laws controlling dust exposure, hosted the first international silicosis conference in 1930 and remains one of few countries to operate a statutory system that gathers data on lung autopsies of former workers.

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In the past these measures were applied unevenly. White miners were examined by a national bureau reporting on occupational disease, while black miners were examined locally at mines and much of the information was not provided to national bodies.

The incidence of silicosis among SA’s gold miners has continued to rise, despite improvements in dust control measures and general working conditions. A study published last year by researcher Gillian Nelson at the University of the Witwatersrand, found a significant increase in the number of recorded cases of silicosis since 1975. Back then it was calculated that 18% of white and 3% of black miners were affected by silicosis at autopsy. By 2007 these totals had risen to 22% and 32% respectively.

Actual rates may be higher, as the disease is not necessarily recorded at death among miners who have ceased employment years earlier and may have returned to their rural homes across Southern Africa. An untreatable disease that can take up to 15 years to develop, silicosis is an important aggravating factor in the current epidemic of tuberculosis (TB) across the region.

The Department of Health has suggested that SA’s gold mining sector now has the highest rate of TB in the world, at 3 000–7 000 cases per 100 000 miners per year. The World Health Organisation considers anything above 250 per 100 000 a health emergency. The sector has also been identified as a key driver of TB outside the mining workforce, with a study in 2011 arguing that a 10% increase in mining production gives rise to a 1% increase in TB infection across the SADC region.

Given the recent movements towards class-action litigation against the gold sector, it’s worth looking at the role of existing compensation mechanisms in addressing the crisis of occupational health. There are two pieces of legislation covering current and former mineworkers, with most silicosis claims falling under the Occupational Diseases in Mines and Works Act (ODMWA).

Signed into law in 1973, and amended in 1994, the act pays lump sum compensation to those who can demonstrate they have contracted occupational respiratory disease causing a lung function loss of 35% or more. But its relatively dated provisions have run into trouble – with little publicity regarding the act. It’s likely that a significant number of former workers were unaware they could claim.

The compensation fund established by the act – with set contributions from each mine operator – has also run into difficulty. In 2003, the shortfall between its assets and liabilities was estimated at R610 million, although contribution levels have increased since then. The fund was the subject of a judgment in the Supreme Court of Appeal in 2012, with the court finding that the state was not liable to cover any shortfall in contributions from the private sector. The adequacy of the current compensation assets remains unclear.

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‘I would hope these cases send out a salutary warning to business that failure to protect the health of workers will be more costly reputationally and financially than taking effective preventative measures’

RICHARD MEERAN, PARTNER, LEIGH DAY

But another judgment in 2011 opened the way for some of the current litigation. The Constitutional Court found that affected miners who received some compensation under the old ODMWA would still be able to pursue claims against their former employers under SA common law.

These would not be precluded by provisions of the ODMWA, requiring workers to relinquish their right to claim outside the established mechanism or by similar provisions in the Compensation for Occupational Injuries and Diseases Act, passed before the 1994 elections. This meant companies were now liable for direct claims from generations of mineworkers affected by occupational disease.

There are a number of groups presently involved in litigation on behalf of former miners with silicosis. Some cases have been heard in the UK where the law firm Leigh Day has brought claims against Anglo American SA on behalf of more than 3 000 miners. In July last year, Britain’s High Court ruled that it did not have the jurisdiction to hear the case.

Leigh Day’s representative Richard Meeran said the firm planned to appeal the UK ruling. In conjunction with local firm Mbuyisa Neale it also registered over a hundred individual cases with the Pretoria High Court in case time limits preclude the claimants’ ability to pursue a settlement in the UK.

He said: ‘I would hope that these cases send out a salutary warning to business that failure to protect the health of workers will be more costly reputationally and financially than taking effective preventative measures.’

Mineworkers represented by Leigh Day have recently succeeded in a separate action in SA, where Anglo American SA agreed to settle with 23 former employees in a case that began in 2004. The settlement comes alongside the consolidation of three large potential class actions, advised by local law firms Richard Spoor and Abrahams Kiewitz, and by the non-profit Legal Resources Centre. According to Richard Spoor the suits presently comprise around 25 000 affected mineworkers or dependents. Court papers requesting a consolidation of the claims note that the lawsuit is directed against 32 mining companies, including Harmony Gold, AngloGold Ashanti, Gold Fields, Anglo American SA, Randgold and African Rainbow Minerals.

There has been much speculation about the size of any future settlements and the potential impact of these on the mining industry. In the event of an industry-wide settlement – the goal of the current class-action suits – estimated costs to the gold sector have ranged from $146 million to $100 billion. For some public figures this poses a significant risk to the industry’s stability. Former Director General of the Department of Minerals and Energy Sandile Nogxina told MiningMx the success of initial claims could ‘open a floodgate of litigation’, while economist Dawie Roodt suggested in comments to City Press that litigation would be ‘a kick in the stomach’ for an industry passing through a difficult period.

The Chamber of Mines has taken a relatively neutral stance on the issue, arguing for reform of the existing compensation framework in a way that ‘eliminates anomalies in the application of the legislation, but does not threaten the viability of the mines concerned, the jobs of the people employed at the mines and those who depend on them for their livelihood’.

At present there is little good evidence from which to estimate the potential value of silicosis claims in the SA context or their impacts on the sector. The terms of Anglo American SA’s recent settlement have remained confidential and recent activity suggests that more cases will be registered before any industry-wide agreement is reached.

Litigation may spread to other sectors. A medical study discovered limited instances of silicosis and asbestosis among former workers on platinum as well as diamond mines. While the financial implications of the recent litigation remain to be seen, the most pressing issues remain those connected to occupational health. The extent of silicosis among all mineworkers has become increasingly clear, with little countervailing medical evidence.

Mining companies have made great gains in improving the working environment, and the state’s programme to eliminate new cases of silicosis by 2030 is admirable. But such programmes take years to generate tangible results and do little to alleviate the concerns of former employees. Without a broad settlement, litigation is likely to continue.

By David Bannister
Image: Andreas Eiselen/HSMimages