For over a century, legislation has been in place aimed at compensating South African miners with an occupational lung disease. But the system, stained by racial inequality for much of its existence, is broken.
The landmark 1998 study carried out by researcher Anna Trapido into silicosis prevalence among former Transkei mineworkers found that of the workers who had been certified as having a compensable disease, only 2,5% had been paid in full. Research by consultants from Deloitte, undertaken over 21 months in 2003, found that of 28,161 certified claims, payouts were made in only 400 cases: less than 1,5%.
Dr Thuthula Balfour-Kaipa, Head of Health for the South African Chamber of Mines, admits freely that there’s a problem. “There’s a need for a major overhaul of the system itself,” Balfour-Kaipa says, sitting in a boardroom at the Chamber of Mines’ offices in central Johannesburg. The Chamber, set up in 1887, was established with the aim of promoting and protecting the interests of the mining industry, and lobbying government on its behalf. One of its modern mandates is to advise its members on issues of health and safety.
For about five years, the Chamber has been running a programme in conjunction with the Department of Health and the National Union of Mineworkers to help improve access to compensation. There’s not much evidence of progress, and Balfour-Kaipa knows that the industry is sitting on a ticking time-bomb if increasing numbers of miners decide to explore a legal route to access the money they feel is owed to them.
“If I were a miner, and I’m out there and I’m sick, I have an occupational lung disease and I know I’m supposed to be compensated – you know, I don’t look at who is responsible for why I can’t get access to a service or why I can’t get the compensation,” Balfour-Kaipa says. “All I know is that I worked at a mine. And so, in a way then, the anger gets directed at the companies. So I would say that it is imperative that the industry…makes sure that the compensation system works.”
The question of why the compensation system doesn’t work is a complex one, with its roots in South Africa’s racially-torn history and racially-stratified geography. With the realisation of the rapidly-burgeoning epidemic of lung disease in South African mines at the beginning of the 20th century, the first piece of legislation aimed at compensating miners was passed in 1911 as the Miners’ Phthisis Allowance Act. In a 2012 article in the American Journal of Industrial Medicine, UCT’s Dr Rodney Ehrlich records that official statistics had it that white miners had higher recorded rates of silicosis in the first half of the 20th century, while black miners had higher rates of TB and pneumonia.
Over the next decades, despite this picture drastically changing, a discrepancy between how white miners and black miners were compensated grew. By 1973, white miners were eligible for between 12 and 15 times the size of payouts granted to black miners. White miners with advanced disease received pension payments; black miners got only a lump-sum payout. Access to medical services also differed based on race, with white workers being eligible for medical examinations at a central medical bureau in Johannesburg and a number of other smaller offices around the country. Black workers, on the other hand, received medical examinations from mine medical services, with little access to medical facilities in the remote rural areas they returned to.
“White miners used their political voice through their labour organisations and political representatives to influence legislation,” notes Ehrlich. “The voice of black miners has been largely absent in shaping compensation legislation.”
In 1993 the explicit racial differentiation aspect of the mineworkers’ compensation system was dropped. But more than 20 years later, black former mineworkers and their families still struggle to access the system’s benefits.
In South Africa, mineworkers’ compensation is handled differently to other forms of worker compensation. General compensation for disease contracted in the course of work is handled by the Compensation for Occupational Injuries and Diseases Act (COIDA), under the management of the Department of Labour. Mineworkers’ compensation is treated separately, under the Occupational Diseases in Mines and Works Act (ODIMWA), managed by the Department of Health.
In general terms, mineworkers are worse off from this split system. There is no pension provision for sick former miners, for instance, whereas other sick workers do qualify for a monthly pension after a certain threshold of disability. Mineworkers also have to be more severely ill to qualify for first-degree compensation.
But the major issue for many former miners who are eligible for compensation is the bureaucratic hurdles that have to be jumped through. 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. A recent report claimed that the MBOD’s offices “have towering stacks of claim records requiring evaluation, including records filed as far back as the mid-20th century”.
Once they eventually get certified, these claim records must be sent to the office of the Compensation Commissioner, who sends a form back for the worker to complete.
“Once you’ve taken the [medical] examination, that’s only the beginning of the chain of misadventure,” says Wits University’s Professor Jill Murray. “Then you’ve got to get together a sheath of papers to go with it which is…where do people get it? They don’t even have electricity. Now they’ve got to have records of service and ID documents and all the rest of it.”
In situations where the submission isn’t perfectly complete, further problems can arise.
“If they find something missing, the clerk will send something to your last address,” explains Ehrlich. “If the letter gets lost, that’s the end of their responsibility. If they don’t hear from you again, they don’t care.”
Balfour-Kaipa points out, however, that a certain amount of documentation is indispensable to prevent fraudulent claims. “Fraud is always a challenge,” she says. “Once a system is not functioning properly, there are people who will make money out of saying they’re going to assist you with the system.”
Murray still feels there’s much that can be done to streamline the system. “It’s been shown time and time again, in many situations, that on the whole, people just don’t lie. They don’t lie. You’ve got silicosis. Where did you get it from?”
For miners drawn from areas outside South Africa, like Lesotho, Mozambique and Malawi, the challenges of seeking compensation are drastically compounded. Interviewed in February, researcher on UCT’s ‘Mapping and Modelling the Distribution and Health Needs of (Ex)Miners in Southern Africa’ project Paula Akugizibwe explained: “The first challenge lies with lack of surveillance and diagnosis [in these countries], especially for silicosis. Now say you actually get diagnosed and are found to be eligible.” The attendant bureaucracy is complicated enough within South Africa’s borders; beyond them, it’s much harder.
“Add in the logistical and financial burden of crossing a border to file your claim and follow up,” Akugizibwe says. Filing claims from Lesotho is possible, but in the register of silico-tuberculosis claims, only six such claims were filed between 1998 and 2003.
Mineworkers’ compensation is supposed to be financed by levies paid by mining houses, which have historically exerted influence to set the amounts. As a result, the ODIMWA compensation fund is grossly under-resourced. A recent study by Yale University’s Global Health Justice Project suggested that “even under the most conservative assumptions, the fund used to pay ODIMWA claims is more than R600 million below the level required to cover current liabilities, and may in fact be R10 billion or more below the level required to cover the total annual costs to South African society”.
When mineworkers do succeed in winning compensation amounts, they are generally lump sum payments of between R48,000 and R180,000. The maximum amount received by the miners interviewed for the Daily Maverick was R60,000. “For the person looking at [lump-sum payments], you know, R30,000 looks like a fortune,” says Wits Professor Tony Davies. “But even if every Rand were invested, it wouldn’t give you a monthly income worth thinking about.”
The question of how much money would constitute sufficient compensation for a person whose health has been compromised in the course of his job is “vexed”, to quote Murray.
“In general, the idea would be worldwide that if your health had been totally ruined and you could no longer work, then you should get a pension, which would be sufficient to ensure that you and your family lived a socially-usefully and satisfying life,” she says. “I think the thing is that one of the problems in South Africa is, of course, that there’s no alternative work.”
For Lunga Makana, a 60-year-old former miner living in the Eastern Cape’s Libode region, the issue is simple.
“They must pay me because I got sick,” he says. “I’m not angry. All they must do is pay me.”
MAIN IMAGE: A Harmony Gold miner appears on the surface after being trapped underground for more than 10 hours at a mine in Carltonville, west of Johannesburg, October 4, 2007. Rescue teams brought the first 450 miners out of 3,200 trapped underground in a South African gold mine to the surface early on Thursday, mine and union officials said. Siphiwe Sibeko, Reuters