Glimmer of justice for sick gold minersPublished by MAC on 2011-03-28
Source: IRIN, South African Times
SOUTH AFRICA: Glimmer of justice for sick gold miners
19 March 2011
JOHANNESBURG - Two court cases have thrown a spotlight on the predicament of hundreds of thousands of former mineworkers in southern Africa who have received little or no compensation for occupational lung diseases that have left them debilitated and jobless.
Years of working in poorly ventilated mines, inhaling silica dust - present in high concentrations in deep-level gold mines - can lead to silicosis, a crippling and progressive disease caused by scarring of the lungs.
A study of former gold mine workers by the Aurum Institute, a non-profit health research organization, found that nearly 25 percent had silicosis. The disease has no cure and sufferers are also more prone to tuberculosis (TB), an infectious disease that is endemic in gold-mining communities.
Across the region, 280,000 ex-mineworkers are estimated to be eligible for compensation under South Africa's Occupational Diseases in Mines and Works Act (ODIMWA), but according to one study as few as 2 percent have received the benefits they are entitled to.
Those who do manage to apply for compensation sometimes wait years to be paid, and the amounts they eventually receive are insignificant in the context of diseases that often leave them unable to work.
This could change after a Constitutional Court ruling earlier in March found that Thembekile Mankanyi, an ex-mineworker, could claim damages of more than of R2.6 million (US$366,440) from his former employer, AngloGold Ashanti, for a lung disease he acquired while working at one of their mines.
A High Court judgement had previously found that he was ineligible for further compensation because he had already received a payment of R16,320 ($2,300) through ODIMWA.
Mankanyi died from respiratory problems a week before the Constitutional Court ruling, but the judgment allows his family to return to court and pursue his claim. "Now, for the first time, the civil justice system can kick in," Mankayi's attorney, Richard Spoor, told IRIN.
Another case, which could also set a precedent, is expected to go to court in 2012 and involves 18 ex-mineworkers who developed silicosis and TB after working at the President Steyn gold mine in Welkom, a town in Free State Province. They are suing the mine's former parent company, Anglo American, for failing to adequately advise its subsidiaries on the safe operation of their mines.
A "decrepit" system
The symptoms of silicosis can take over a decade to appear, by which time many miners have returned to their homes in rural areas of South Africa, Lesotho and Mozambique, where they are unlikely to be able access the two-yearly examinations that could make them eligible for compensation.
Thuthula Balfour-Kaipa, a health advisor to the Chamber of Mines of South Africa, pointed out that the over-stretched public health system was struggling to deliver basic healthcare, "so when it comes to a miner who looks fairly well and needs a chest x-ray, they're not a priority".
A joint project was launched in 2007 by the Chamber of Mines, the Department of Health, and the National Union of Mineworkers (NUM) to set up clinics with the sole purpose of providing medical examinations for mineworkers in areas where labour is sourced, but so far only two clinics have opened, one in KwaZulu-Natal Province and one in Eastern Cape.
The project also allocated funding to the Medical Bureau for Occupational Diseases (MBOD), which falls under the Department of Health and administers ODMWA, to help address delays in compensation payouts but, according to Balfour-Kaipa, the money has not been used. "The [health] department has never quite agreed what the funding should be used for," she told IRIN.
The health department did not respond to questions from IRIN, but according to the NUM's health and safety chair, Peter Bailey, the backlog of claims at the MBOD was still "massive".
Spoor described South Africa's legislation regulating compensation for occupational injuries and diseases as "very out-dated", and the system for implementing it as "decrepit". He also noted that mining company contributions to the compensation fund were trivial.
"If you look at the prevalence studies of these [occupational lung] diseases, then it's abundantly clear that this fund [should be] bankrupt, however, there's never any challenge on its funding because so few people claim what they're due." He added that there was little pressure to reform the compensation system because "Injured workers are invariably unemployed workers, and they are poor and voiceless."
Effective safety measures?
The Chamber of Mines has set up a Mining Industry Occupational Safety and Health (MOSH) initiative, aimed at identifying industry best practices for managing silica dust, as well as other safety issues such as noise and underground falls, and encouraging mining companies to adopt them.
According to the MOSH team, the most effective ways of controlling dust are to install fine water spray systems, and apply chemicals to underground walls that will cause the dust to stick to them. Installing large fans to ventilate shafts is also crucial.
No one knows exactly how effectively these techniques will reduce dust levels, and therefore the incidence of silicosis. Balfour-Kapia said dust was very difficult to measure. "Any way you measure [it], there's still a 25 percent margin of error," and because silicosis takes so many years to manifest, "We can only know in years to come whether these measures have worked."
She said the incidence of silicosis had levelled off at about 1,600 cases per year, compared to 3,000 a year in 1998.
Bailey of the NUM maintained that mines have made progress in implementing safety measures, and that the presence of health and safety representatives had empowered workers to exercise their rights to a safe working environment, but Spoor was unconvinced.
He said the lack of sanctions against mines that failed to comply with safety guidelines, and the small amounts they were currently required to pay into the compensation fund, meant there was no incentive for employers to look after their workers.
[This report does not necessarily reflect the views of the United Nations]
Ex-mineworker beats AngloGold, dies
South African Times
3 March 2011
A Constitutional Court judgment paves the way for claims for occupational health diseases for ex-mineworkers in South Africa, a lawyer says.
The court ruled unanimously in favour of Thembekile Mankayi against AngloGold Ashanti.
"This judgment opens the way for compensation claims for occupational health diseases for ex-mineworkers in South Africa," Mankayi's attorney Richard Spoor said in a statement.
The mining companies had been dreading the interpretation and judgment handed down by the court.
"This is a huge step toward the rights and dignity of mine workers being respected and protected by the state.
"What an incredibly important win for mine workers," he said.
Unfortunately, Mankayi died last Friday, "so the judgement comes a week to late for him".
He would be buried in Mthatha on Sunday.
The judgment was a huge victory for ex-mineworkers with lung disease, who had won the right to claim civil damages from the mines," Spoor said.
AngloGold Ashanti silicosis lawsuit (So. Africa)
Introduction taken from Business & Human Rights website - http://www.business-humanrights.org/Categories/Lawlawsuits/Lawsuitsregulatoryaction/LawsuitsSelectedcases/AngloGoldAshantisilicosislawsuitSoAfrica
In October 2006, a South African gold miner named Thembekile Mankayi sued AngloGold Ashanti, his former employer, stating that he developed the lung disease silicosis while working in Vaal Reefs mine. The lawsuit, filed in the Witwatersrand Local Division of the High Court of South Africa, sought R2.6 million in compensatory damages. Mankayi alleges that AngloGold Ashanti failed to meet its responsibility to provide its employees with a safe and healthy work environment under both South African laws and an employer's common law duty of care to its employees. AngloGold Ashanti responded that Mankayi is precluded by law from making the claims he set forth in his lawsuit. Under South Africa's Compensation for Occupational Injuries and Diseases Act (COIDA), workers or their families may not sue an employer for injury or death incurred at the workplace. Instead, the compensation commission considers these claims. But Mankayi's claims of AngloGold's negligence can only be heard in a court of general jurisdiction, not by the compensation commission.
In addition, mineworkers' lung diseases are covered under the Occupational Diseases in Mines and Works Act (ODMWA), which limits a mineworker's compensation for illness due to working conditions to just a fraction of that awarded under COIDA (plaintiff's counsel estimates that the payout is about a tenth of what it would be under COIDA). The size of Mankayi's claim challenges the limitations on compensation under ODMWA. The South African Parliament is currently considering revisions to the law to address the disparity between the remedies available to workers under COIDA and ODMWA.
On 26 June 2009, the High Court of South Africa, Witwatersrand Local Division, issued a decision in this case. The court ruled in AngloGold Ashanti's favour, holding that Mankayi was statutorily barred from making his claim. In March 2010, the Supreme Court of Appeal in Bloemfontein heard Mankayi's appeal of the lower court's ruling. On 31 March, the Supreme Court of Appeal upheld the High Court's ruling. The plaintiff's appeal to the Constitutional Court of South Africa, and this court reversed the lower court's ruling and ruled in favour of Mankayi on 3 March 2011. Mr Mankayi died of lung disease on 25 February 2011.