MAC: Mines and Communities

South Africa: Class action motion filed against gold companies

Published by MAC on 2013-01-07
Source: Statement, Al Jazeera, Reuters (2012-12-28)

S African gold miners gun for mining firms

Miners who contracted lung diseases working underground seek damages by filing country's biggest class action lawsuit.

Ilham Rawoot

Al Jazeera

26 December 2012

Virginia, South Africa -"The mines eat men. Even when you have left them, the mines may be eating you" - so goes a miners' song in the Sotho language.

The powerful words reflect a scourge that has stalked South African miners for more than century. Now, the prevalance of tuberculosis, silicosis and other occupational lung diseases have spurred the biggest class action lawsuit the country has seen.

Four thousand former gold mine workers have filed affidavits in the High Court of South Africa, launching three simultaneous lawsuits against mining giants Anglogold Ashanti, Goldfields and Harmony Gold.

The miners, who are all ill with lung disease they contracted while working underground, are suing the mining firms for damages, which are expected to run into billions of rands (millions of US dollars).

"This case will set an important precedent for mines to keep a healthy working environment, and is important in our quest to seek justice for this marginalised sector of our society," says Danzel van Zyl, an attorney at Abrahams Kiewitz Attorneys, the law firm leading the lawsuit.

"The mines are still maintaining that they did everything by the book and maintain their lack of culpability," van Zyl adds.

One of these former mine workers is Maliso Mahlozini, who now lives in a tin shack in the gold-mining town of Virginia, three hours from Johannesburg.

Mahlozini - now in his 60s - contracted TB 15-years ago after working for Harmony Gold for 29 years.

"The mines make us sick and then they drop us like a used condom," he says.

During his time at the mines he says he contracted TB numerous times, until finally he was too ill to work and the mine let him go. He was also left with partial blindness in his right eye from an accident underground.

However, after he was laid off he had no more access to medical facilities, medication or check-ups. While some gold mining firms provide medical facilities for check-ups, these are in urban areas, while most former mine workers live in rural areas.

"When the mines can't use you anymore, they dismiss you, and then they don't want anything to do with you," he says.

He then applied to the mine's compensation scheme for benefits. He waited 10 years for his compensation, which amounted to 80,000 rand ($9,350). The money has been used up, and Mahlozini is now too ill to work. After working the mines for most of his adult life, he has no other skills.

"Almost all the men in this village come from the mines, and most of them, hundreds of them, are sick," says Mahlozini.

A walk through the sandy shack settlement backs up these claims: there is an endless stream of men presenting their letters of dismissal. All of them have either TB, silicosis - a potentially fatal lung-scarring disease caused by silica dust - or other lung disease. They have no access to medical care and have received little or no compensation since leaving the mines.

High rates of TB

A minuscule amount of research has been conducted by the government and mining companies into the number of former miners who have contracted disease. Historically, the mining companies have only examined the problem among white miners.

In 2011, Jill Murray and Tony Davies of the School of Public Health at the University of the Witwatersrand wrote an article on the issue. They found the highest rates of TB in the world are found among South African miners, of which there are about 160,000 sufferers. The incidence of TB among gold miners increased from 806 per 100,000 in 1991 to 3,821
in 2004, the last year for which data at a national level exists.

The proportion of black gold miners with silicosis found through autopsies was 32 percent in 2007. The study estimated the amount of unpaid compensation owed to gold miners with lung disease at 20bn rand ($2.3bn).

Richard Spoor is a human rights attorney who has worked regularly with miners. "Up to now, the mining industry hasn't really had any incentive to deal with silicosis because they've enjoyed legal immunity," says Spoor. "There have been no civil claims, and there has never been a criminal prosecution of mining companies for exposing workers to silica dust."

He says through the Occupational Diseases in Mines and Works Act (ODMWA), a former mine worker with lung function impairment of more than 40 percent can be paid "trivial" damages up to a maximum of about 90,000 rand ($10,500), with the typical amount 35,000 rand ($4,100).

But Spoor adds that fewer than 5 percent of eligible former miners receive compensation.

"The fact that mines are allowed to treat their workers this way, and that the problem hasn't been remedied 18 years after apartheid ended, is a measure of the political and economic power of the mining industry," says Spoor.

Meagre compensation

Jaine Roberts, director of research at Rhodes University, who has done extensive research on former gold mine workers in the Eastern Cape province, says the ODMWA is a highly problematic system, because miners are paid a small, once-off amount with no access to medical treatment.

Furthermore, many miners are unaware of the ODMWA, as few companies provide information about the legislation. And until 2011, the ODMWA included a clause that made mining employers immune to legal action by current or former employees for lung diseases contracted in the mines.

But last year the Constitutional Court decided in favour of Thembikile Mankhayi, who contracted silicosis while working for AngloGold Ashanti, awarding him damages of 2.6m rand ($304,000), and opening the door for other workers exposed to harmful gases and dust.

The simultaneous lawsuits are expected to be heard next year, and will take between three and five years before a judgement is handed down.

Alan Fine, a spokesperson for AngloGold Ashanti, says "as a result of efforts to improve underground dust levels and to reduce exposure, dust levels and rates of silicosis at AngloGold Ashanti's mines have shown a consistent and encouraging downward trend. The rate of silicosis at AGA has nearly halved from 14 cases/per 1000 employees/per year in 2007 to 8 cases/per 1000 employees/per year in the year ended March 2012."

He says while the statutory compensation scheme needs to be improved, the company has established, along with other gold-mining firms, a project designed to assist former miners to be diagnosed and receive assistance in making claims.

Harmony Gold and Goldfield opted not to comment.

But Spoor says the mines' efforts are not enough. Addressing the issue will be expensive, he says, as it means improving ventilation in an atmosphere almost 3km underground. And, Spoor notes, personal protective equipment such as respirators and dust masks are not compulsory in South African gold mines, unlike in foreign mines.

Furthermore, he says, black mine workers are spending more time underground than ever before. While miners in many other countries work for eight-hour shifts, in South Africa they work between 10-12 hours a day.

Rob Ntsapi, who also lives in Virginia, was dismissed after 40 years of working with second-degree TB. He says even after seeing doctors while working for Harmony, workers live in cramped conditions in hostels where TB spreads quickly. Ntsapi's payslip showed an annual salary of 30,000 rand ($3,460).

He struggled to believe when he read that last year Harmony CEO Graham Briggs took home a 10m rand ($1.15m) salary. Mark Cutifani, AngloGold's CEO, received 29m rand ($3.4m) in pay, and Nick Holland, Goldfield's CEO, cashed in shares and finished with a total package of 33m rand ($3.8m).

"If I could talk to the CEO of Harmony, I would tell him that I got sick on his mine, and I need money so I can live," Ntsapi says. "The mines are going to kill many people. They are very dangerous."


Gold Mine Workers with Silicosis File Motion for Class Action

Mine workers and their families seek to hold accountable dozens of mining companies

Statement of Richard Spoor Inc Attorneys

21 December 2012

JOHANNESBURG, SOUTH AFRICA, - Today, South Africa human rights lawyer Richard Spoor filed an application for class certification of an action for damages in the South Gauteng High Court on behalf of tens of thousands of current and former gold mine workers, as well as dependents of deceased workers, who contracted silicosis as a result of their work in South African gold mines.

The applicants are Bongani Nkala, a 59-year-old former mine worker from Mthatha, and 30 other former mine workers, all of whom contracted silicosis as a result of their exposure to crystalline silica dust, also known as quartz dust, while employed at the mines.

Nkala and his co-applicants seek the court's permission to undertake the litigation as representatives of all current and former gold mine workers who contracted silicosis and dependents of deceased mineworkers who died after contracting silicosis.

There are 30 respondent gold mining companies that owned or operated 78 different gold mines from 1965 to the present.

The respondents include Harmony Gold Mining Company Limited, Avgold Limited, AngloGold Ashanti Limited, Gold Fields Limited, Village Main Reef Limited, Simmer and Jack Mines Limited, DRDGold Limited, ERPM Limited, Anglo American South Africa Limited, African Rainbow Minerals, Randgold and Exploration Company Limited, JCI Limited and their
subsidiaries.

The respondents were either the owners of gold mines that they operated or, as in the Case of Anglo American South Africa, African Rainbow Minerals (previously AngloVaal) and JCI, parent companies that exercised control and direction over their subsidiaries' mining operations.

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. The purpose of the litigation, says Spoor, 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.

"We seek no more than the application of the ‘polluter pays' principle to be applied to an industry that generates sick men as surely as it produces great wealth for its shareholders. Mine workers do not control the environment in which they work; environmental conditions underground are determined by the mine owner through the provision of proper ventilation. 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.

Silicosis is a chronic and debilitating lung disease caused by the inhalation of the tiniest (respirable) crystalline silica dust particles. Crystalline silica, also known as quartz, is found in association with gold in the Witwatersrand and Free State goldfields and is raised into the air during mining and blasting.

Silicosis is a chronic and progressive disease that cannot be cured. The impact of silicosis on the life span and general health and functioning of the worker concerned depends upon the severity of the disease and its complications, which include progressive massive fibrosis, tuberculosis (to which silicotic persons are particularly susceptible) and heart disease.

The purpose of a class action is, first and foremost, to secure access to justice for the thousands of potential claimants who would, otherwise, by virtue of their isolation in remote rural areas and their poverty, never be able to bring their claims in a court.

Its secondary purpose is to reduce the cost of litigation, for plaintiffs and defendants, and to reduce the burden on the courts, which might be called upon to try thousands of individual claims dealing with substantially the same issues.

Class actions have the further advantage that they are binding upon all the members of the class, unless potential class members choose to opt out. Therefore, the action has the potential to resolve, once and for all, litigation that could potentially drag on for decades to the great prejudice of employers and the affected mine workers. The litigation holds the promise of resolving a legacy issue that has the ability to dog the industry for many years to come.

The current litigation was made possible by the March 2011 decision of the Constitutional Court in the matter of Thembekile Mankayi. In this case, the court determined that mine workers with lung disease were not precluded from suing their employers by the provisions of section 35 of the Compensation of Occupational Injuries and Diseases Act (COIDA). COIDA was, until this ruling, construed as a bar to employees from recovering civil law damages from their employers in respect of any occupational injury or disease.

Among today's filings were the affidavits for Mokholofu Boxwell, Maeburu Regina Lebitsa and Siporono Phahlam.

Mr. Boxwell is a former gold mine worker living in Butha-Buthe, Lesotho, who worked in four different mines over a 23 year period and is a proposed class representative who has been diagnosed with silicosis. In his affidavit, Mr. Boxwell states, "I could see, taste and smell dust while I worked underground, particularly after blasting took place during a shift and we were not evacuated from the mine . . . I cough heavily all the time and I have constant chest pains. Apart from no longer being able to provide for my family, I am no longer able to partake in community activities. I feel depressed and alone."

Mrs. Lebitsa, a widow and resident of Ha-Motsoane, Naeli, Lesotho, is a proposed class representative of the dependents of deceased mineworkers. She was married to Lekhooanyana Isaac Lebitsa for almost 26 years. Mr. Lebitsa was retrenched from the mine at the age of 42 when his employer discovered him in ill health. "In early 2005, my husband was certified to be suffering from tuberculosis and silicosis in the second degree...." Mrs. Lebitsa attested. "When he returned from the mines, his health deteriorated and, as he became weaker, his ability to support his family was severely undermined. The support he provided me was fully terminated when he passed away in 2010."

Siporono Phahlam, a 59 year-old former miner is another potential class representative who has been diagnosed with silicosis and has trouble walking even a few yards without stopping. "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," he said.

Richard Spoor Inc Attorneys is undertaking the litigation with the support of Motley Rice LLC, a U.S.-based plaintiffs' law firm with extensive experience in class actions and large scale occupational health and safety litigation. The experience, skills and resources they bring to bear are critical to the success of the litigation-litigation that few, if any, South African law firms are equipped to undertake alone.

Press office contact details:
• Ulaysha Sukhu - 083 229 6410
• Charlene Dennis - 083 278 2588
For further information, please refer to www.goldminersilicosis.co.za


Class action motion filed against SA gold companies

Reuters

28 December 2012

JOHANNESBURG - A South African lawyer has moved to file a class action suit against over 30 gold firms on behalf of 17,000 former miners who say they contracted silicosis, a debilitating lung disease, due to negligence in health and safety.

The companies include third-largest global bullion producer AngloGold Ashanti, fourth-largest Gold Fields and Harmony Gold. Also named is Anglo American's South African unit, which owed gold assets in the past but no longer produces it.

Attorney Richard Spoor said on Friday he had filed last week for class certification for an action for damages in the South Gauteng High Court in Johannesburg.

"We need to ask the court for permission to proceed on a class action basis. We filed the papers last week, and that matter will have to be argued in the court if it's opposed," Spoor said.

He expected the matter to be heard in April or May of next year.

The damages sought in what could be Africa's biggest ever class action suit have not been disclosed but could be huge at a time when South Africa's mining industry is battling with soaring power costs and wage costs as well as violent labour militancy.

Spoor has signed up 17,000 plaintiffs so far from South Africa, Botswana and Lesotho, the landlocked kingdom that has provided hundreds of thousands of migrant workers to South Africa's gold mines over the past century, he said.

Spoor said the number of plaintiffs was growing by around 500 a month.

The planned suit, which has little precedent in South African law, has its roots in a landmark ruling by the Constitutional Court that for the first time allowed lung-diseased miners to sue their employers for damages.

Silicosis is a chronic and progressive disease that cannot be cured. Miners contract it by inhaling silica dust from gold-bearing rocks.

African Rainbow Minerals, one of the companies named, said it was "too soon to discuss the outcome of the matter as none of the merits of the matter has yet been established, let alone tested in court".

An Anglo American spokesman said, "We are aware of the case, but Anglo American has not yet been served, so it would not be appropriate to comment any further."

Officials at AngloGold Ashanti, Gold Fields, Harmony and some other companies named in the filing could not be reached for comment.

The companies named in the filing owned or operated 78 different gold mines from 1965 to the present.


South African Gold Miners Sue Over Deadly Lung Disease

by Pratap Chatterjee

CorpWatch

3 January 2013

Thousands of gold miners have asked permission from South African courts to sue some 30 mining companies over negligence in health and safety that the miners allege has caused them to contract silicosis , a debilitating and potentially fatal lung disease.

Just before Christmas, Richard Spoor, a South African lawyer, filed papers with the South Gauteng High Court in Johannesburg requesting permission to conduct a class action lawsuit on behalf of 17,000 former miners. Hundreds more are signing up with Spoor every month.

Anglo American, AngloGold Ashanti, Gold Fields and Harmony Gold are four of the 30 major companies named in the legal papers that operated 78 different mines from 1965 to the present. Lead plaintiffs include Bongani Nkala, a 59-year-old former mine worker from Mthatha, among 30 other former mine workers.

"I could see, taste and smell dust while I worked underground, particularly after blasting took place during a shift and we were not evacuated from the mine . . . I cough heavily all the time and I have constant chest pains," Mokholofu Boxwell, one of the petitioners declared in an affidavit submitted by Spoor. "Apart from no longer being able to provide for my family, I am no longer able to partake in community activities. I feel depressed and alone," added the former gold mine worker who now lives in Butha-Buthe, Lesotho.

"We seek no more than the application of the ‘polluter pays' principle to be applied to an industry that generates sick men as surely as it produces great wealth for its shareholders," Spoor said in a press release. "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 has a track record in such lawsuits . He won a $154 million out-of-court settlement on behalf of thousands of asbestos miners who had contracted asbestosis with the legal and financial backing of Motley Rice, a major U.S. laws firm.

He is the second lawyer to files such charges. In August 2012, Charles Abrahams, who is backed by the law firm of Hausfeld LLP in the U.S. took action against AngloGold Ashanti Limited (formerly Anglo American), Harmony Gold Mining Company Limited, and Goldfields Limited.

Silicosis is caused by the regular inhalation of microscopic particles of silica which leads to permanent scarring of the lungs. The disease often takes more than a decade to display severe symptoms like coughing, fever, shortness of breath and bluish skin. Victims often contract tuberculosis also. While the latter can be treated, silicosis cannot be reversed.

Few of the estimated 500,000 miners who worked in South Africa's deep underground gold mines in the latter part of the 20th century were given adequate protection against breathing in silica dust. The most vulnerable were black workers who were given the most dangerous jobs, especially low wage migrant workers from the neighboring countries of Botswana, Lesotho, Malawi, Mozambique and Swaziland.

Research into the health impacts of the gold mining industry conducted by Jill Murray and Tony Davies of the School of Public Health at the University of the Witwatersrand showed that almost one in three black miners suffered from silicosis based on data from autopsies. The South African mining community was also found to have the highest rate of tuberculosis in the world.

Some of the mining companies provided limited health facilities to miners but rarely did they extend to the villages where most of the retired workers returned to. And what most of the miners did not know was that they had legal recourse under the 1973 Occupational Diseases in Mines and Works Act which allows miners (regardless of skin color) with lung damage of over 40 percent to be paid "trivial" damages upto 90,000 rand ($10,500) which is roughly three years salary for a miner.

It takes years even to obtain this money which is insufficient to support the injured miners who suffer for the rest of their lives, as Al Jazeera discovered when they interviewed Maliso Mahlozini a former Harmony Gold employee of 29 years, who lives in a tin shack in the gold-mining town of Virginia, three hours from Johannesburg. Mahlozini spent ten years trying to get the money which has now run out. "The mines make us sick and then they drop us like a used condom ," he told the TV channel.

A test case filed by Thembekile Mankayi against his former employer, AngloGold Ashanti was given permission to proceed last year. Unfortunately Manyaki died of lung disease less than a week before the courts ruled in his favor awarding him damages of 2.6 million rand ($304,000).

By contrast, Nick Holland, Mark Cutifani and Graham Briggs, the CEOs of Goldfield, AngloGold and Harmony respectively, were paid of 33 million rand ($3.8 million), of 33 million rand ($3.4 million) and10 million rand ($1.15 million) in salaries last year.

A similar lawsuit has been filed in the UK by Leigh Day & Co. against Anglo American. "The South African gold mining industry was focused on production and profit and displayeda flagrant disregard for the health of its black workers ," Richard Meeran, the lawyer representing the miners, told Global Post. AngloAmerican is disputing the jurisdiction of UK courts over this matter.

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