South Africa

ANALYSIS

Does the class action silicosis settlement go far enough?

Motlalepula Mokoena, 71 years old from Maseru in Lesotho. He worked on the gold mines for 38 years as a loco driver and a team leader at Freestate Saaiplaas and Free State Geduld mines. He was retrenched in 2002 and paid R36,000 in compensation for his silicosis. He now receives an old age pension and lives alone as his wife has died and his 4 children have left home. Photo by Thom Pierce

Phthisis, silicosis, or simply “underground disease”: it’s a condition which has robbed South African gold miners of their health and livelihood for over a century. Now, finally, some measure of justice has been achieved. On Thursday, it was confirmed that six gold mining companies are contributing money towards a R5-billion trust to pay out compensation to miners who contracted silicosis on the job. It’s a settlement being hailed as “historic” – but is it really a game-changer for the affected miners?

What has been called South Africa’s largest class action lawsuit has finally reached a settlement – bringing to an end legal processes which began, in some cases, as long as 14 years ago.

On Thursday, the Occupational Lung Disease Working Group – consisting of mining houses African Rainbow Minerals, Anglo American SA, AngloGold Ashanti, Goldfields, Harmony and Sibanye-Stillwater – announced a settlement reached with lawyers representing mineworkers who contracted silicosis or TB while working underground.

The companies involved are all gold miners, because silicosis is primarily a disease of the gold mines. Drilling, blasting and mechanical loading are the dustiest jobs on the mine, and all are critical to producing gold. When silica dust is inhaled, it can scar the lungs and leads to the respiratory condition called silicosis.

In terms of the agreement, affected workers will be eligible for one-off payments ranging in amount from R70,000, for early stage silicosis, to R500,000 for “silicosis class 4 with defined special aggravated medical condition”.

In its most acute form, silicosis can lead to death. In its chronic variety, it causes chest pain, weakness and respiratory failure – making other forms of manual labour for former gold miners hard to undertake. Silicosis also makes lungs more vulnerable to TB, which is why the incidence rate of TB among South African mineworkers is estimated as the highest in the world.

Using funds from the mining houses, a trust will be set up which will have the resources to pay out R1.4-billion in benefit payments for the first two years.

On the surface, there appears to be much cause for celebration here. Dig a little deeper, however, and some concerns remain.

There is no doubt that the settlement – which still needs to be finalised by the South Gauteng High Court – represents an important, principled victory when it comes to holding big companies accountable for diseases contracted by workers in the course of their employment.

Because silicosis can develop as long as 20 years after exposure to silica dust, mining houses historically have been reluctant to pay compensation for what is seen as the sins of the forefathers.

But when Daily Maverick embarked on an in-depth investigation of silicosis in 2014, we discovered that the South African mining industry has had a very long time to get its house in order with regards to the occupational disease. In fact, the original commission of inquiry looking into the problem was set up in 1902.

Elsewhere in the world – in the USA and Australia, for instance – effective dust limits underground have been in place for almost a century, and this has drastically lowered silicosis rates. It was only in 2003 that a “target” was set for South African mines to restrict silica dust to less than 0.1mg per cubic metre of air by 2008 – an exposure level which, evidence suggested, might not even protect against silicosis. New targets set in 2014 mean that it is only by 2024 that silica dust has to be restricted to 0.05mg per cubic metre of air.

Mines have implemented techniques to reduce workers’ exposure to dust: requiring workers to wear dust masks, for instance, and watering underground areas. Both are unreliable – the former because workers reportedly often do not wear them due to heat, and the latter because it increases humidity while maintaining dust particles in the air.

In other words, it’s possible that even while mining houses are finally gearing up to pay proper compensation for silicosis, workers currently mining for gold are still going to contract the disease.

That’s one issue. Another is to do with the way in which the payouts for sick miners will be administered.

As things stand, miners with silicosis are already eligible to claim compensation – and have been for decades.

They can do so under the Occupational Diseases in Mines and Works Act (ODIMWA), managed by the Department of Health. But the reason why relatively few former miners have been able to access the compensation they are eligible for is due to the bureaucratic nightmare of the process.

The body responsible for certifying mineworker claims is the Medical Bureau for Occupational Disease (MBOD), to which a number of documents have to be submitted: a medical form, worker ID and fingerprints, and their labour records. Many former mineworkers lack at least some of these documents.

Once mineworkers have eventually been certified as sick, these claim records have to be sent to the office of the Compensation Commissioner, who sends a form back for the worker to complete. This causes problems in itself, as sometimes people have moved on from their last registered address by the time their record is processed. If so, that’s the end of the line.

Daily Maverick asked Occupational Lung Disease Working Group spokesperson Alan Fine whether the claims made to the new trust would use the same system as the ODIMWA process.

They’re going to be working in co-operation,” said Fine, using the same call centre and sharing databases.

Fine said that the working group has already taken steps over the past three years to “help repair the systems” of the ODIMWA process: hiring additional clerical staff and doctors to process claims. As a result, he says the number of compensation payments per year has increased by “600%” in the last 12 months.

Fine’s confidence is heartening, but the news that the two systems will overlap to some degree is not. It is to be hoped that the trust will make good on its promise to “enhance the efficiencies of both the trust and the statutory systems”. If the trust is instead dragged down by the bureaucratic mess of the state’s systems, few will benefit.

The major question mark hanging over the settlement, however, is whether a compensation system based on once-off lump sum payments is really the best solution to meet the needs of sick miners – as opposed to, say, a monthly pension.

Fine points out that once-off payments are far easier to administrate, which is undoubtedly true (and one only has to look at the chaos of the South African Social Security Agency’s grant payment system to see how messy the alternative can get).

Workers in other occupations than mining can receive monthly medical pensions after a certain threshold of disability, however, so the precedent exists – under the Compensation for Occupational Injuries and Diseases Act (COIDA), which is managed separately by the Department of Labour, and which does not handle mining-related occupational disease.

The major reason to prefer monthly pensions where possible is that making lump sum payments to recipients who lack a high level of financial literacy often spells trouble. The working group specified in its Thursday statement that, “where reasonable and practicable”, the trust would oversee the “establishment of a financial literacy programme for the assistance of claimants who receive a benefit”.

It is to be hoped that this aspect will be prioritised. Interviewing sick miners in the rural Eastern Cape in 2014, Daily Maverick found that a number had received compensation payouts in the region of R50,000 – but just a few years on the money had been spent, with no lasting impact on bettering the lives of men who were now too disabled to take on other forms of manual work.

Settling the class action was doubtless a massive relief for claimants waiting years to see any money at all. While the settlement is to be welcomed, the real test will be how funds are administered, whether the money has positive effects, and whether mining houses commit fully to ending silicosis cases on the mines rather than just paying off those who have succumbed. DM

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