“If you eat a mielie meal [corn on the cob], you would eat the delicious outside and then throw away the cob. The miners are the cobs of Anglo.” – Widow of a former mineworker
Thembekile Mankayi was buried near his home in Mthatha on the 6th of March 2011.
He had contracted silicosis during the course of 14 years spent working underground at the old Vaal Reefs mine near Klerksdorp, in the North West Province, and subsequently developed pulmonary tuberculosis.
Mankayi received a payout of just R16 000 from AngloGold Ashanti. It was the only compensation that he would ever receive. But despite having only a Std 5 education, Mankayi was prepared to fight for his rights. Four years earlier, he had launched a bid in the Johannesburg High Court to secure R2,6 million from the mining house which had employed him. Mankayi lost. The High Court ruled that miners who had already received a payout in terms of the Occupational Diseases in Mines and Works Act could not sue their former employers for more money.
Mankayi would never know what he had set in motion. He died a mere five days before the Constitutional Court overruled the High Court judgment, ruling that he and other former mineworkers had the right to sue their former employers for loss of earnings, pain and suffering, and medical expenses derived from the disease contracted in the course of their work. The judgment came too late for Mankayi, but it is of enormous significance for the sick former miners who follow in his footsteps.
Fast forward to early February 2014. The scene is a conference room in Cape Town’s somewhat ambitiously-named Ritz Hotel. Just a few kilometres down the road, in the city’s glitzy International Convention Centre, the annual Mining Indaba is taking place. It’s an event which sees all the mining bigwigs and investors converge on Cape Town for four days, paying in some cases upwards of R20 000 for a ticket, to discuss the state of the industry. Notably absent from the speaker roster are mineworkers or unionists. At the major plenary speaking sessions, the ‘S’ word – silicosis – is another omission.
Every year for the past five years, an ‘Alternative Mining Indaba’ happens simultaneously in the same city. While mining bosses present White Papers and discuss profits at the Mining Indaba, its alternative incarnation brings together religious leaders, academics, civil society figures and ordinary members of
communities affected by mining to discuss the less palatable effects of mining’s impact on the global south.
In this conference room at the Ritz, the topic on the agenda is silicosis. But despite the gravity of the subject matter, the mood is celebratory. Six months earlier, the Legal Resources Centre (LRC) and UK law firm Leigh Day, aided by local outfit Mbuyisa Neale, had won a landmark settlement in the case of 23 silicosis victims who sued Anglo American SA on the grounds that the country’s biggest gold producer was aware of the risks of silicosis and failed to take adequate steps to ensure that its employees were protected.
Anglo American had argued that they had had a less than 25% interest in the gold mining companies in which the miners were employed, and that the companies had taken “reasonable steps” to protect their health and safety.
The case had been ten years in the making, beginning in 2004 with seven clients and rising to 23 by the time of settlement. They were drawn from the Free State, the Eastern Cape and Lesotho. 15 were living former miners and eight were the widows of former miners. All miners had worked in Anglo American gold mines between 1970 and 2000, and all of them had been diagnosed with silicosis.
“As you can imagine, there are very few law firms out there that are willing to go up against a mining company as big as Anglo American, and you need all the resources you can get, and expertise, to do so,” the LRC’s Sayi Nindi told the floor. The case required almost 20 South African and British lawyers representing the plaintiffs, and around 17 experts. The legal team had to wade through 250 000 documents from Anglo American.
“All [the clients] have no formal education, very few could read and very few could write,” Nindi said. “All of them were diagnosed with silicosis, but the majority of them did not understand what this disease entailed and how it would affect their lives after leaving the mines.” Very few knew they had a right to claim compensation.
One client, the widow of a former miner, was asked what her views were towards Anglo American. She replied: “If you eat a mielie meal [corn on the cob], you would eat the delicious outside and then throw away the cob. The miners are the cobs of Anglo.”
In an unpublished 2003 paper titled “The Social Consequences of Mining in South Africa in the Past and in the Future”, British lawyer Richard Spoor laid out his case for litigation against mining houses. “Activist lawyers, like myself, have…seen an opportunity to influence the economics of health and safety by putting the cost of injury and disease back on the balance sheet where it belongs,” he wrote. “Litigation can be used as a tool to the advantage of sick and disabled workers to persuade employers to invest in health and safety or to take out insurance. It is also an important tool to raise public awareness and bring pressure to bear for legislative reform.”
But the legal route towards payouts for ex-miners is no easy fix. Litigation can drag on for years, as evidenced by the Anglo American lawsuit, and when you are dealing with sick plaintiffs, there is every possibility that some will die en route. In the Anglo American case, seven of the claimants died over the course of the litigation. The LRC’s director Janet Love describes it as a “torturous process”.
Then there’s the problem that in agreeing to settle on behalf of your clients, as lawyers representing the miners did in this case, you forego the opportunity to set a legal precedent. The terms of the settlement between Anglo American and the 23 miners in the LRC case is confidential, but Leigh Day lawyer Richard Meeran said at the time that the average level of compensation for a silicosis sufferer might be R450 000.
“At this stage what we’ve got for these people is not necessarily a recognition of any kind of responsibility, or anything like that. But for them as individuals, we’ve got a level of compensation,” Love told the Daily Maverick. “At least there’s something that they can make of a travesty, basically.”
The clients were described as “happy”, but one of the conditions of settling was that Anglo American refused to admit any liability. The company said only that they believed that settling was in everyone’s “best interests”. If a mining house were to take their chances in court and lose, it would open the floodgates for countless more cases.
The case against Anglo American is a drop in the ocean compared to what is on the horizon for mining companies. Lawyers at Abrahams Kiewitz Attorneys, the LRC and Richard Spoor Attorneys are attempting to launch parallel class action lawsuits representing thousands of former miners with silicosis and TB. 32 respondent gold mining companies have been named, in what would be South Africa’s biggest ever class action lawsuit. As of last September, 25 000 miners and their dependents were being represented, but the numbers could rise to the hundreds of thousands.
“The game is up for the gold mining industry,” lawyer Richard Meeran said last year with regards to the looming litigation. This is likely over-confident. Lawyers for former miners face a thorny task in convincing courts, among other aspects, that the miners’ disease was as a specific result of mine negligence; and that big mining companies can be held liable for the actions (or lack thereof) of their subsidiaries
But Meeran told the Daily Maverick in September 2013 that the ultimate end-game was not, in any case, interminable litigation but to exert sufficient pressure on the mining industry to secure an industry-wide settlement scheme. Such a scheme, he envisaged, would “compensate silicosis victims on the basis of a range of tariffs for the severity of disease, lost earnings and medical expenses – especially for ongoing monitoring for contraction of TB, which is a lifelong risk for silicosis sufferers”.
A settlement scheme as wide-ranging as that envisaged by Meeran will inevitably take a bite out of the profits raked in by mining giants. Despite the apparent absence of discussion at the Mining Indaba, therefore, there should be major pressure on mining houses to support the reform of South Africa’s compensation system for former mineworkers and take drastic steps to reduce dust levels in mines.
Back in 2003, Spoor argued: “Movement on [environmental issues and health and safety issues] will impact on the profitability (from an investor’s point of view) of mining in SA but bring about a disproportionately large reduction in the cost of mining to the wider economy. Overall it’s good economics.”
We don’t know yet whether workers going underground for the first time this year will be spared the burden of silicosis, as the South African mining industry has claimed. But it’s clear that mining houses can no longer afford to take a laissez-faire approach to the plight of their former employees.
“Like the cells in the lungs mopping up the silica, the mining industry is mopping up the profit, and so long as their preoccupation is with profit at all costs…” Wits Professor Tony Davies trails off. “The chickens have in many ways come home to roost, all of them, a big flock of them, sitting on all the lampposts.”
MAIN PHOTO: Reuters