The 69 applicants want to claim damages against 32 gold mining companies, including AngloGold Ashanti, Goldfields and African Rainbow Minerals, on behalf of all mine workers who have contracted silicosis.
The applicants, including dependents of men who have already died of silicosis, have waited three years simply for the court to hear their application for permission to proceed with the class action suit.
Lawyer Richard Spoor, whose company represents 30,000 affected mineworkers, says 1 200 of his clients have already died of silicosis.
Silicosis is an incurable, progressive lung disease caused by the inhalation of tiny silica (quartz) particles raised during mining. It causes inflammation of the lungs, chest pain, cough, fever and breathlessness. People with silicosis are three times more likely to get tuberculosis and are prone to heart attacks.
One of the applicants, Siporono Phahlam, 62, states in his affidavit: “We weren’t given masks and were sent in after they [the mining companies] would blast and blast, not even waiting 15 minutes. The doctors say I won’t get better, and all I want is to have my voice heard. I don’t want future miners to suffer like I do.”
“Silicosis is a wholly preventable disease, yet, for more than 100 years, the South African gold mining industry has continued to cause thousands of new cases of silicosis per year with no consequence,” said Spoor.
“The purpose of the litigation is to put an end to the impunity that the mining industry enjoys and to hold it accountable for the harm that it does. The vast majority of former mine workers with silicosis have never been compensated and receive no medical benefits,” added Spoor.
Georgina Jephson, an attorney with Richard Spoor Inc, said the laws on dust levels underground have been clear for many years but the high prevalence rates of silicosis amongst former gold mineworkers suggests that the mining companies did not adhere to them and government didn’t enforce them.
“Silicotic mineworkers who have returned home from the mines have placed a huge burden of disease on public health systems, especially in the Eastern Cape, but also in neighbouring countries including Lesotho, which were formerly major recruitment centres for the mines ,” said Jephson.
Spoor says that the applicants simply want “the ‘polluter pays’ principle to be applied to an industry that “generates sick men as surely as it produces great wealth for its shareholders”.
“When mine owners skimp on the cost of providing proper ventilation, workers get sick. These men have become ill through no fault of their own, yet when they do, they are simply dismissed, and they and their families are left to languish in poverty and disease,” Spoor said.
While statutory compensation for miners with lung disease was established many years ago in terms of the Occupational Diseases in Mines and Works Act (ODMW), very few mineworkers who are entitled to compensation receive it because there is so much red tape involved.
The applicants’ lawyers say they have had to resort to the courts because undertakings by the Chamber of Mines to compensate ex-mineworkers with silicosis, including its promise to build clinics in major mine recruitment areas, have not rolled out as promised.
However, Chamber of Mines head of health, Dr Thuthula Balfour-Kaipa said that while the Chamber “cannot comment on litigation, One Stop Service Centres have been established in Mthatha and Carltonville in partnership with the Department of Health and the National Union of Mineworkers (NUM)”.
“This was all as part of the Former Mineworker Project that also established a benefit examination site in Nongoma and augmented occupational health services in four hospitals each, in Free State and North West,” said Balfour-Kaipa.
Meanwhile, COM spokesperson Alan Fine acknowledges that “the pilot projects put in place [as part of the Former Mineworker Project] were not as successful as was hoped for”.
For this reason, eight gold mining companies have formed a partnership with the Department of Health to try to speed up the compensation process.
In May, Project Ku-Riha was launched and is being rolled out by the Department of Health with the support of African Rainbow Minerals, Anglo American, AngloGold Ashanti, DRDGold, Gold Fields, Harmony, Sibanye Gold and Village Main Reef.
At its launch, Project Ku-Riha declared that its goal was to “make substantial inroads into eliminating the backlog of claims, ensuring that new claimants with valid claims are paid their due compensation”. The eight companies have committed R5-million to it, which has enabled 20 additional staff to be employed to process claims.
“The class certification application is, whether it succeeds or not, but one small step in what would be an incredibly lengthy legal process,” said Fine. “It is estimated that the legal process could last 15-20 years should it carry on till completion. It is not in the companies’ interests that this play out at huge cost in legal fees and as former employees are forced to wait for the possibility of additional compensation that may or may not transpire, depending who wins the case. For that reason, a drawn out case should not be in the interests of the claimants’ legal representatives either,” said Fine.
The case has combined three separate actions into one case that represents 27,000 mineworkers, but as silicolsis prevalence is estimated to affect between 22% to 36% of former gold mineworkers, the case could affect up to 100 000 workers.- Health-e News Service.