A potentially precedent-setting court case between Rustenberg Platinum Mines, the Inspector of Mines and the Ministry of Mineral and Energy Affairs and which could have a serious impact on the mining industry with regard to the rights of HIV positive miners has been postponed in the Pretoria High Court until January next year.

The case was scheduled to be heard on Tuesday (May 27) but was postponed when legal representatives of both the plaintiff, Rustenberg Platinum Mines, and respondents, the Inspector of Mines and the Ministry of Mineral and Energy Affairs, met at an undisclosed venue in Johannesburg. At the meeting it was agreed that the proceedings be postponed to give all parties time to engage with a view to developing policy that would set out clear guidelines to help with situations where workers infected with HIV meet with occupational accidents and subsequently die.

At the centre of the original legal wrangle is the death in September 2000 of stope team leader, Mr Jose Mulungu Cossa, who died in hospital about a month after sustaining knee injuries in an accident in the mine’€™s Turfontein shaft. The key issue is whether Mr Cossa’€™s death 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.

In papers before the court, Rustenburg Platinum Mines Limited claimed 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.

The 36-year-old team leader was hundreds of metres underground and alone when a rope trapped his right leg against a barricade tearing ligaments in his knee and damaging an artery. Mr Cossa was taken to Rustenburg Platinum Mines Hospital, owned by Anglo Platinum, and treated by Dr Grzegorz Hauslinger who told an earlier inquiry that Mr Cossa’€™s injuries had initially responded well to treatment.

Three days after an operation to mend his knee injuries, Mr Cossa slipped into a coma. He never recovered and died about a month later. In an affidavit, Dr Hauslinger said Mr Cossa had been suffering from ‘€˜severe impediment of the immunological system’€™ when he was admitted to hospital.

The court case this week would have decided on the mine’€™s request 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.

Ms Hermanus, in her answering affidavit, stands by an 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. Had the application not been 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.

At present, the ruling that Mr Cossa’€™s death was a fatality arising from his injury at the mine still stands, as does the R60 000 levy imposed on Rustenberg Platinum.

This week Ms Hermanus said the case would now be taken to the Mining Tripartite Committee, a grouping that includes employers, the union movement, the Ministries of Minerals and Energy Affairs, Labour and Health.

If efforts to draw up a clear policy prove fruitless by January next year then the matter will once again have to be decided by the Pretoria High Court.

Mr Mike Mtakathi, a spokesman for Anglo-Platinum, said e hoped that all parties would find an amicable solution between now and January next year.

However, he said the mine stood by its conviction that it did not follow that Mr Cossa’€™s death was a result of his knee injury. Mr Mtakathi added that it would be helpful if the Department of Minerals and Energy affairs made it easier for employers to test employees for the HI status. This, he said, would enable companies to effectively manage implications on the operation of the mines as well as the workforce by placing them on anti-retroviral therapy or removing them to an environment conducive to their health.