In 2012, the law firm Richard Spoor Inc (RSI) took on SA’s mining industry in an unprecedented class action, spanning as far back as 1965, to claim damages and compensation for gold miners who contracted silicosis — a lung disease caused by exposure to crystalline silica dust over an extended period — as well as tuberculosis.

RSI was given the certification to pursue a class action in 2016 in a landmark judgment, and the mining companies ultimately settled on a compensation award of R5-billion for the affected miners and their families.

Now the firm is spearheading a class action against the coal mining industry for miners who contracted lung diseases such as pneumoconiosis, which it contends is a result of mining companies failing in their “duty of care”.

The mining industry and the government say there have been significant strides made to improve health and safety standards. The latest annual report of the Mine Health and Safety Inspectorate, which falls under the Department of Mineral Resources, states that the number of employees exposed to airborne pollutants that exceeded the occupational exposure limits “decreased from a total of 20,675 employees (5.54% of the total workforce at risk) in 2021 to 14,414 (4.08% of the total workforce at risk) in 2022”.

However, the report also notes a “16.06% increase … in the total number of occupational diseases reported, from 1,924 cases in 2021 to 2,233 cases in 2022. The analysis of occupational disease incidence rates per 10,000 employees showed an increase from a rate of 36 in 2021 to a rate of 40 in 2022.

“Statistics showed an overall decrease in the total number of occupational diseases reported from the gold sector during 2022, with a slight decrease noted in silicosis and noise-induced hearing loss, while a slight increase was noted in the pulmonary tuberculosis cases.”

Hierarchy of controls

Dr Thuthula Balfour, the head of health at the Minerals Council South Africa, says the Mine Health and Safety Act of 1996 has improved conditions for mineworkers, and research has continued to devise mechanisms and set targets to minimise dust levels and mineworkers’ exposure to them.

Balfour says the industry uses what is known as the hierarchy of controls — a method of identifying and ranking safeguards to protect workers from hazards. They are arranged from the most to the least effective and include elimination, substitution, engineering controls, administrative controls and personal protective equipment (PPE).

“What the industry did in 2014 was to set targets with the Mine Health and Safety Council, which included [for] coal dust. We took the current occupational exposure limit for coal, we did the same for silica dust, and we sort of halved it and said, let’s see how we try to achieve that we don’t have more than 5% of samples taken being above that level. Around 2018 we were sitting on 16%.

“So, as an industry, we think companies really try to reach those levels because dust is about exposure and also about how long you inhale the dust.”

She says Brazil, for example, has a 10-year limit on miners working underground, where they are exposed to dust. In South Africa there is no such limit because of the country’s socioeconomic conditions.

“It’s difficult to implement something like that. That’s why we focus on reducing the dust levels… If you’re in a country with high levels of unemployment it’s very difficult.” 

RSI director George Kahn, who is leading the coal mining class action, cautiously acknowledges the improvements in mining health and safety. According to the data he has seen, mines are trying to reduce dust levels to below the statutory maximum amounts.

“Where they were coming from was sort of the old apartheid system where black mineworkers were really seen as fairly fungible parts of the mine. It was replacing a part — you throw one away and replace it with a new one, so dust was not really a priority at the time,” Kahn says.

Balfour says mining companies have introduced real-time trackers that are attached to mineworkers’ clothing and monitor dust levels. They send out an alert when the levels are too high so that management can stop production and withdraw workers. But, she points out, enforcing safety measures depends on the leadership in mining companies not prioritising production over workers’ health.

Kahn says the health and safety culture “is to a certain extent incompatible with the kind of payroll system in the mines” because many mineworkers get a very low basic salary and rely on their performance bonuses.

“Some mineworkers can make more in performance bonuses in one month than some professional white-collar people can, and what that results in is that people don’t want to be the one saying, ‘Hey guys, let’s slow down, this is not safe.’ I think to a large extent the mines are still guilty of that.”

Company obligation

On mining companies’ obligation to ensure that workers understand the dangers of their working conditions and ensure their safety, Balfour says: “The employer needs to control the hazards. Beyond that, the employer needs to identify what the hazards are and make sure people are informed. Each employee needs to know what the hazards are where they’re working because they differ…

“Each occupational medical practitioner is supposed to know, for instance, what the levels of coal dust are where the person is working so that the person is informed. If there’s a need for the use of PPE, for instance, they must appreciate why they need to use that PPE, because if a person is not educated adequately they might not see the need to put on a mask.”

Balfour also emphasises that workers’ education should include what symptoms to look out for, long after they have left the mines, because some of the occupational lung diseases develop only years later.

Kahn points out that many workers’ knowledge of a mine’s inner workings is restricted to their area of work, which means they rely on their employer to keep them safe. Although mineworkers receive safety training, they do not always understand it because it is not provided in their mother tongue and not all the details are explained to them.

“The Occupational Diseases in Mines and Works Act section 36(A) specifies that if a mineworker develops one of these diseases we are talking about, the mine is actually responsible for the medical aid of that mineworker relating to that disease. The mine, strictly speaking, has to pay for that, but I bet if you speak to 90% of mineworkers they aren’t even aware of that section,” Kahn says.

Kahn also laments that most mineworkers do not even know that they are entitled to a free medical examination every two years to see how far their disease has progressed, and that upon their death the family is entitled to a free autopsy of their lungs. If any occupational disease is found, the family is entitled to be compensated.

So, despite improved occupational health and safety standards in the mining sector, more still needs to be done to ensure mineworkers know the duty of care and compensation to which they are entitled. DM