The death of a Mozambican miner after a leg injury is the subject of a complicated legal wrangle with potentially serious implications for the mining industry and workers who are HIV positive. The precedent-setting case, heard in the Pretoria High Court on Tuesday, May 27, and hinged on whether the death of stope team leader, Mr Jose Mulungo Cossa in September 2000, should be included as an occupational fatality in the mine’€™s statistics.

These statistics are used to determine a mine’€™s safety risk, which in turn results in a specially calculated SIMRAC (Safety in Mines Research Advisory Committee) levy being imposed on the mine. The greater the risk, the higher the levy.

Rustenburg Platinum Mines Limited, the plaintiff, is claiming that Mr Cossa died of ‘€˜multi-organ failure’€™ as a result of what is repeatedly referred to in papers as a ‘€˜severe impediment of the immunological system’€™. Only on his death certificate is AIDS cited as a contributing cause of death.

Papers before the court show that the 36-year-old team leader was hundreds of metres underground and alone in the mine’€™s Turfontein shaft when a rope trapped his right leg against a barricade tearing ligaments in his knee and damaging an artery. No one knows exactly how the accident happened.

But witnesses, including the colleague who responded to his cries for help, claim the injuries he sustained did not look serious enough to result in his death 26 days later.

According to them, Mr Cossa had been well enough immediately after the accident to switch off the scraper winch, call for help and ask a co-worker to fetch a stretcher.

The first person on the scene, Mr Vuyile Khuzo, told an earlier inquiry (held in terms of the Mine Health and Safety Act) into the accident that the rope was coiled five times around Cossa’€™s leg.

‘€˜I removed his gumboot and removed the rope coil by coil from his leg. He did not say how he got injured but just said his knee was very painful.’€™ Mr Khuzo explained.

Mr Cossa was taken to Rustenburg Platinum Mines Hospital, owned by Anglo Platinum, and treated by Dr Grzegorz Hauslinger who told the inquiry that Mr Cossa’€™s injuries had initially responded positively to treatment.

He said Mr Cossa had been suffering from ‘€˜severe impediment of the immunological system’€™ when he was admitted to hospital.

The mine will ask the court to review and set aside a decision by Chief Inspector of Mines, Ms Mavis Hermanus, to include the accident as a fatality in the statistics of the Department of Mines and Energy.

But Ms Hermanus, in her answering affidavit, stands by her earlier contention that Mr Cossa would not have died when he did had he not been injured at work on September 6, 2000.

‘€˜The records show that he underwent an operation on September 8, 2000 as a direct result of his injuries. Within three days he was in a coma from which he never recovered,’€™ she states.

‘€˜In my considered view, a man who was fit for underground would not, in the absence of an intervening event like an occupational injury, go into a coma some days later leading to his death.’€™

Ms Hermanus also points out that classifying the death as non-work-related would deprive Mr Cossa’€™s dependants of death benefits prescribed by compensation legislation.

‘€˜This result is particularly grave because of the shortcomings in the present social security system,’€™ she says, adding that many miners suffer from pre-existing illnesses, not related to work.

‘€˜These conditions include sugar diabetes, high blood pressure and chronic heart disease, none of which has ever been advanced as a reason for classifying occupational accident related deaths as non-occupational. I saw no reason to consider pre-existing immunological impediments differently.’€™

Her decision is supported by the Department of Minerals and Energy. The minister, Phumzile Mlambo-Ngcuka, is the second defendant.

A finding in favour of the mine could set an important precedent with serious long-term implications for HIV positive workers, their families and the state. Between 4,7-million and 5,2-million people are infected with the virus in South Africa, with mine workers among the worst affected. Of Anglo’s workforce of 134000 an estimated 23% or 30820 employees are HIV- positive.

It could in theory mean that responsibility for the death of an employee following an accident at work could be shifted onto the government or the worker’€™s family if he or she was HIV positive or suffered from any pre-existing condition before the incident.

Should the application not be successful, then the mine’€™s safety risk and the SIMRAC levy it pays would be adversely affected. The levy would increase by R14.539 a year for three years for the inclusion of Mr Cossa’€™s death alone.

Other issues raised by the case include:

• Whether mine management should be allowed to test all employees for Aids. ‘€˜At present we are sending sick people underground on a daily basis. They place themselves and peoplewho assist them after an injury at risk,’€™ said Business Area Manager for the mine, Mr Johannes Ungerer, in an appeal read at the inquiry.’€˜If we can test them we can treat them and assist them to live longer and make their lives more bearable. ‘€™Statistics showed that 404 employees of the mine would die of Aids in the following year, he said.

• Discrimination. In her answering affidavit Ms Hermanus says: ‘€˜People who are living with HIV/AIDS constitute one of the most vulnerable groups in our society. Prejudices against HIV positive people persist and the impact of discrimination is particularly devastating when it occurs in the context of employment.’€™

Ms Hermanus notes that Mr Cossa’€™s medical records do not contain ‘€˜objective material’€™ showing he was HIV positive.

‘€˜For instance there is no record of any HIV testing having been conducted, there is no record of a CD4+ blood count having been conducted, there is no record of the onset of infection and its relationship to precise mechanism of death, and related issues.’€™