Analysis: Judgment day for silicosis class action application

In courtroom 11E this morning, judges of the South Gauteng High Court will announce their decision on whether to certify the class action, Bongani Nkala and 55 Others v Harmony Gold Mining Company Ltd and 31 Others. Essentially, it will decide whether hundreds of thousands of gold miners and their families can together sue gold mining companies for damages after contracting silicosis and tuberculosis through work.

If the judges decide the class action can proceed, it will be the biggest class action ever certified in South Africa and could lead to a level of justice for miners whose health was allegedly put at risk for decades despite the industry's knowledge of how to reduce the likelihood of inhaling silica dust. The class action includes 56 mineworkers who represent more than 25,000 people, but up to 200,000 workers or their families could stand to benefit if the class action is successful.

The case is both about compensation and justice.

Silicosis is caused by inhaling silica dust, which workers can be exposed to during gold mining. Once one’s lungs are scarred, the disease is incurable, often leading to chest pain, shortness of breath and increasing the likelihood of contracting tuberculosis. The mining industry has long had a comprehensive grasp on the illness, with South Africa offering compensation for the occupational lung disease as early as 1912. Predictably, measures were introduced to protect and compensate white mineworkers while black mineworkers faced far greater exposure.

Those trying to push for compensation through a class action, represented by Richard Spoor Attorneys, Abrahams Kiewitz Attorneys, and the Legal Resources Centre, believe 32 gold mining companies are liable for failing to protect employees. The class action would include two classes: gold miners and the dependants of those who have died as a result of silicosis, and gold miners with pulmonary tuberculosis and the relatives of those who have died of it. The oldest case in the current court proceedings dates back to 1965.

While some estimates say one in four South African gold miners could suffer from silicosis, the current attempt for a class action case wasn't possible until a 2011 Constitutional Court ruling. The court found in favour of Thebekile Mankayi against AngloGold Ashanti. He had received a payout from the Occupational Diseases in Mines and Works Act but was suing for loss of wages, medical expenses and damages.

Arguing in court, the mineworkers’ lawyers said silicosis is an epidemic and gold companies had systematically failed over generations to put in place measures to protect workers from excessive levels of dust and the risks of silicosis and tuberculosis. Civil society organisations have got involved with the case and last year Treatment Action Campaign’s Anele Yawa said, “The exploitation of mostly poor black workers mirrors the apartheid and colonialist exploitation of workers that we have seen throughout the continent. That even in post-apartheid South Africa the rights of mineworkers are routinely violated is a national disgrace.”

Late last year, the court heard arguments on whether the mineworkers should constitute a class. Lawyers for the workers said a class action is the only feasible way forward, argued that employers across the industry had acted systematically in their neglect, and said splitting the claimants into individuals or groups, or processing the claims company by company, would bog down the courts and see evidence repeated across the cases. The mining companies cast doubt on the link between tuberculosis and silicosis and said there are two many potential differences among the various gold producers’ handling of the issue and the individual claims to go ahead with a class action.

Mineworkers who have contracted an occupational lung disease are entitled to compensation from the state, but the compensation has been criticised as insufficient and the system suffers from huge backlogs.

While the mining companies will defend the legal claims made against them, protracted litigation is not in the interests of any of the parties. One part of the proposed solution would be to establish a legacy fund that will supplement the statutory compensation to which mineworkers who have contracted silicosis are entitled from the state, and which some have already received.

On the back foot, mining companies have committed to preventing occupational lung diseases in the future and claim vast improvements in safety measures have been achieved. They have advocated for a “mutually acceptable” outcome that prevents further damage to the gold industry, currently in decline.

“While the mining companies will defend the legal claims made against them, protracted litigation is not in the interests of any of the parties. One part of the proposed solution would be to establish a legacy fund that will supplement the statutory compensation to which mineworkers who have contracted silicosis are entitled from the state, and which some have already received,” said a recent statement from six leaders of mining companies involved in the case. They have also committed to helping government improve the existing compensation system.

Should the class action go ahead, the mining companies could look at an out-of-court settlement. After 12 years of litigation, Anglo American South Africa and AngloGold Ashanti recently settled a dispute with about 4,400 miners for claims of contracting silicosis and tuberculosis. While that compensation process is complicated, it could see a total payout of up to R464-million to the mineworkers.

This case is much larger and with far greater financial implications for the companies. Whatever happens in courtroom 11E will go down in history for the mining industry and workers’ rights in South Africa. But, whether it will lead to a class action case or thousands upon thousands of individual claims, it marks the beginning, not the end, of the fight. DM

Photo: Former gold miners listen to speakers at a registration meeting in Bizana in South Africa's impoverished Eastern Cape province March 7, 2012. REUTERS/Mike Hutchings