Ex-mineworkers' payment: progress report by Commission for Compensation of Occupational Diseases & Rand Mutual Assurance

Meeting report

Rand Mutual Assurance (RMA) presentation
Mr Patrick Matshidze, General Manager: Operations, said that RMA was licenced by the Minister of Labour to provide injury-on-duty cover to mine employees. It worked hand-in-hand with the Compensation Commissioner for Occupational Diseases (CCOD), which covered lung and other respiratory diseases. The Compensation for Occupational Injuries and Diseases Act (COIDA) determined which diseases were covered by which body.

Currently 21 000 people were receiving benefits from RMA. Of those 7 000 were pensioners, 8 000 were widows of miners who had passed on. RMA was asked to assist in identifying any pensionable cases amongst the 18 500 people on the list received from the CCOD in 2010. The list was scrutinised and 20 people were identified who fitted the requirements to be RMA beneficiaries. All 20 people had their claims finalised, and were currently receiving pensions. The rest of the people on the list did not suffer from injuries, thus they did not qualify to be compensated by RMA.

The RMA had a database with all the names of miners who were injured on duty. The mines reported these injuries to RMA as they occurred. The 18 500 names were checked against the database of the RMA and the 20 names emanated from that process.

This was RMA’s contribution to the identification of the ex-miners on the list and beyond that there was nothing more it could do to help trace and identify beneficiaries. RMA asked to be exempted from any further duties with regard to this process of identification, because it felt it had exhausted all avenues. It was however available to assist the Portfolio Committee with any future processes that fell within its scope.

Discussion
Mr M Nchabeleng (ANC) questioned the method that the CCOD used to contact the ex-miners. He asked if RMA used, apart from district and local municipalities, the traditional authority structures such as Congress of Traditional Leaders of South Africa (CONTRALESA) or the House of Traditional Leaders in the different provincial legislatures. All miners were placed at the mines through traditional authorities. This would not cost anything as it was the duty of traditional leaders to know their subjects.

Mr H Schmidt (DA, PC on Mineral Resources) said that only a few people had been reached. On 23 July 2010, a presentation and report was delivered on the ex-mineworkers to the PC on Labour. On p13 the report referred to RMA. It said that 1000 workers had been investigated. Many still had old reference books and not the modern bar-coded IDs. He asked whether people had been negatively affected by not having an ID.

Mr I Ollis (DA, PC on Labour) said that with regards to tracing, claimants needed a 13 digit bar-coded ID. He understood that RMA existed before 1994. Why did RMA not use the old reference books as in the past?

Mr Ollis understood that RMA used the TEBA company number for foreign workers. Were there cases of South African workers that could not be investigated because they did not have the proper identification? This was an old problem, which was brought to the attention of Parliament under the Mandela administration. It needed to be finalised. The ex-mineworkers came to Parliament, and Parliament wanted to finalise the matter, but it could not do so without complete answers.

Acting Chairperson, Mr F Maserumule (ANC, PC on Labour) said that from personal experience of the rural areas, he knew that levels of illiteracy were very high. Old people believed that if they went to the doctor, they would die. These factors retarded the process and the procurement of the necessary documentation.

Mr Maserumule agreed with Mr Ollis, saying not enough was being done to finalise the issue. Despite the fact that there was no uniform mode of identification in place due to the homeland history of South Africa, people could be identified because people in the rural areas knew each other. The traditional leaders’ offices had information on the people staying in those areas. Even if the worker had passed on, the family would still be living there.

Mr Matshidze replied that miners came from the whole region, not just South Africa. Foreign workers were traced according to their TEBA Ltd company number (the recruitment company that recruited most mineworkers). With South Africans, IDs were used. The system made provision for using different ID numbers. It used both the ID and the reference book. Where RMA had challenges was where there was no ID or reference book number.

Mr Maserumule said that 20 a seemed a very low number of beneficiaries out of a total of 18 500.

Mr Ollis referred to the report of 23 July 2010 on the ex-mine workers. At that point, 1000 of the 18 500 workers had been investigated. That meant that 17 500 workers had been investigated within the last year. Was that a true reflection?

Mr Matshidze replied that RMA operated under licence with the Ministry and in strict adherence to COIDA. RMA adjudicated only on injuries-on-duty and a few select diseases as outlined by the Compensation Act. Lung and other respiratory diseases were dealt with by the CCOD. When injuries occurred, these were reported to RMA and the process started there. RMA covered 95% of mine employees in the industry. The 5% balance would be covered by the Compensation Fund. Any cases that pre-dated 1994, meaning those from the TBVC states (Transkei, Bophuthatswana, Venda and Ciskei) became part of those covered by the Compensation Fund. The 20 were receiving their pensions.

Mr Matshidze replied that the list of 18 500 RMA got from the CCOD. All these cases were registered with the CCOD. The CCOD gave the list to the RMA to check if any of the cases qualified for RMA payouts.

Mr Matshidze added that people who had been following the Mankayi judgement would appreciate that the area of occupational diseases was covered by two different pieces of legislation. The first was COIDA which dealt with diseases and injuries. The second was the Occupational Diseases in Mines and Works Amendment Act (ODIMWAA). ODIMWAA stipulated that only if one worked for a controlled mine, was one covered for a set of diseases, largely lung and respiratory diseases.

[In March 2011, the Constitutional Court ruled that a former mine worker could claim damages for an occupational disease even though he qualified for certain state benefits. This had implications for businesses in South Africa, because it set a precedent, for the mining as well as other industries. Thembekile Mankayi worked at the Vaal Reefs Mine between 1979 and 1995 and stopped working after being diagnosed with silicosis. He had previously been awarded R16 316 in compensation in terms of a mining law that prescribed it in cases where a person contracted the disease in his working environment. He approached the Constitutional Court to claim for further damages under common law. He died in February 2011. In March 2011 the Constitutional Court ruled that his next of kin had to be paid the R2.7m that he sued for. This judgement meant that injured or ill employees could sue their employers for additional uninsured costs, if they could prove negligence on the part of the employer.]

For a person that had worked in the gold mining industry, there was a high probability of contracting a lung disease. It was a latent disease, which meant it could take many years to develop to the stage where the person suffered symptoms. The legislation stipulated that when the claimant was suffering from a lung condition, they had to claim from the CCOD. When they had an injury or died on duty, they had to claim from RMA. A mine worker who had a lung condition, and then became injured, would claim from both, or one that got injured twice would be able to claim compensation twice. There had been no denial of care. RMA had the full list of people who claimed in a database.

Mr Schmidt asked whether the Mankayi judgement would have an impact on any of these claimants.

Mr Matshidze replied that regarding the Makayi judgement, it seemed that there needed to be a normalisation of cover for mine employees in the environment as it stood currently. This was a debate for policy makers working in this area. The Mankayi case gave finalisation on the anomaly that existed between the COIDA and ODIMWAA. The CCOD had to pay and it did pay the R16 316, but Mr Mankayi contested the quantum, the amount to be paid, and he won R2.7m. The case delineated  responsibility in terms of COIDA  being used to contest negligence in order to get more compensation, and ODIMWAA, where a worker’s common law right to sue was protected. As a result there was talk about class actions.

Mr Nchabeleng said that he saw the list of claimants against those who were paid and he saw many discrepancies. He saw the same name appearing thrice as having been paid. He saw for example that one person was owed an amount of R27 while another was owed an amount of R10 272. There was no explanation for the big differences between the amounts owed. Without explanatory notes, clarity and proper documentation, the space was open for greed and corruption. Somebody had explained that the amounts owed depended on starting dates and amounts earned, but that formula did not explain the discrepancies either. With the last meeting in the Eastern Cape, the Portfolio Committee had heard that there were people who charged claimants R600 to get their payouts for them. The claimants then went and borrowed the R600. This was a scam, but the space for this kind of activity was created by the absence of definite information on the progress made in this case. It was damaging the reputation of RMA as well as the CCOD. Was anything done to bring them to book? Did RMA report this to the police, and if so, what was the case number.

Mr Matshidze replied that it was difficult to comment on the discrepancies and differences between amounts. Under COIDA, a claimant was entitled to medical treatment when injured, Temporary Total Disablement (TTD) or income replacement while undergoing treatment, TD lump sum which was a pension a claimant would get if his injury was less that 30% as quantified by the legislation, a monthly pension if the injury was above 30%, funeral expenses and a monthly pension for the family in the event of death of the claimant. These benefits were enshrined in the legislation. This was part of the broader social protection that the Constitution Court had proposed. RMA operated on the opposite side of social protection, in the space of social security. RMA was bound, not only by law, but by provisional settlement powers signed by the Minister to honour all its obligations as enshrined in the legislation. It had to submit monthly reports to the Compensation Fund and had monthly audits. There were 21 000 pensionable claimants, 7 000 were injured workers, 8 000 were widows of diseased workers and the balance were children of diseased workers. All this information was available.

Mr Schmidt said that RMA was a private assurance and not an insurance company. What did it assure for, apart from injuries?

Mr Ollis asked RMA to explain its role. Did the fund pay pensions or parts of pensions, depending on the level of disability of the claimant? Did it pay pensions, or only for the operation and medicine?

Mr Matshidze replied that there were branches in all key mining areas such as Welkom, Carltonville, Johannesburg and Kimberley. Branches provided access to RMA for the workers as well as collected information, interacted with the mines as well as with TEBA Ltd. If the next of kin were unknown, RMA branches set up tracing arrangements at own expense and addressed claims within six weeks where possible.

Mr G Boinamo (DA, PC on Labour) said that in 1987, a worker, a Mr Theuns Oosthuizen was injured at a mine in an African state, outside of South Africa. He was flown to a hospital inside South Africa where he was treated for his condition. All the documentation was completed and submitted. He was working for RMA. RMA refused to pay. A certain person working in the legal field dealing with compensation, called Andile, intervened and RMA was legally instructed to pay, and agreed to do so. However, RMA still refused to pay. He asked why it took such a battle to get RMA to pay people in its employ.

Mr Boinamo said that he was in continual contact with the injured and his partner/wife. They requested that he helped them, because they did not get any luck from RMA. He had letters from them in his office. Mr Boinamo said that he had contacted the RMA office many times, but the process got stuck at the point where the money had to be paid over to the claimant. He wanted RMA to be open about the facts of the case.

Mr Matshidze replied that before 1974, black people were not allowed certain benefits under the old Workman’s Compensation Act (WCA). The RMA introduced a special allowance benefit, which allowed black people who were compensated by RMA before 1974, R2000 per month as well as medical expenses. It did not have any legal obligation to do so. It was done out of sheer consideration for the plight of the people. It paid the benefits then and this project was still running.

There was another project called Family Allowance where if the claimant became quadriplegic and had two children or more, RMA would increase the amount of the benefit in order to assist the claimant to contend with the challenges the family might have. 

Mr Matshidze said that RMA would be meeting with Mr Oosthuizen and his partner Myra on Friday, 17 June 2011. He would explain more if Parliament so requested, but he felt that the situation did not warrant it. He said that it had been presented as if it was a simple case, but it was it was complicated and needed careful consideration. If RMA had to compensate all South Africans who left the country, sought employment abroad, was injured and came back to South Africa to claim compensation, it would soon be insolvent.

Ms F Bikani (ANC, PC on Mineral Resources) asked whether the PC could get a list of the claimants with the current status of each.

Ms Bikani asked whether RMA was part of the Inter-Departmental Task Team (IDTT).

Mr Matshidze replied that RMA had been brought into the process by Uunemployment Insurance Fund (UIF) to adjudicate on this matter. RMA had written a report to provide the information that the IDTT wanted, but it did not participate directly since the last meeting in the Eastern Cape.

Mr Nchabeleng asked why the Commissioner was not present at the meeting. The Commissioner was the most senior person accountable in this matter. If the Commissioner was not there, the Director General of the Department had to account. He would make representations to the Minister and the Director General about the absence of the Commissioner.

Compensation Commissioner for Occupational Diseases (CCOD) on Eastern Cape Ex-miners R54 million Project
Ms Thembisa Khaka, Acting Deputy Commissioner: CCOD, said that the CCOD was governed by ODIMWAA. Its mandate was to compensate miners and ex-miners suffering from lung and respiratory diseases. The office of the CCOD became involved after 1994 when the R54m was transferred from CCOD of the former Trans-and Ciskei to South Africa. The CCOD then received records on ex-mineworkers during the period 1994-1996 from the Eastern Cape. The CCOD and the Ex-Mineworker’s Union compiled the list of 18 500 together.

In August 2002 a task team was appointed by the then Premier of the Eastern Cape. The task team was chaired by the office of the Premier, and had representatives from the National Department of Health, Eastern Cape Provincial Department of Health, the Chamber of Mines, the Provincial Department of Labour, Ex-Mine Workers Union, the House of Traditional Leaders and the National Union of Mineworkers.

The Minister of Health approved payment of R2 700 per worker to all 18 500 ex-miners in March 2003.

The list of names of ex-miners had been published in local newspapers, and was announced on local radio stations. The list was put up in hospitals, clinics, labour centres, Standard Bank branches, District Municipalities, Local Municipalities, and Department of Labour Offices.

CCOD staff were deployed to the Eastern Cape in July to September 2003, September 2005 and May till August 2009. The former Director General paid the Ex- Mineworker’s Union to help trace and identify the beneficiaries on the list.

In 2009, there was confusion in some cases where it showed on CCOD’s records that a worker had been paid, but the worker denied having received the money. In some cases the money was still with TEBA Ltd, in other cases the money had been withdrawn from the bank and nobody knew where it was. CCOD was investigating those cases.

A Steering Committee was formed which involved the Department of Labour, Health, the Premier’s Office and the Ex-Mineworker’s Union.

The CCOD was providing progress reports to the Steering Committee, the IDTT, and the Portfolio Committee on Labour on a weekly basis while it was busy with the project in the Eastern Cape.

Over 12 200 ex-miners had been traced and paid. The process was ongoing. After the tracing and paying session of 2009, the CCOD decided to close the project. The Project had been closed according to Gazette No. 32452. After closing the project, the CCOD continued to pay claimants as they came forward and could prove their identities, but as part of the day-to-day business of the CCOD, not as a special project.

Since the last engagement with the Portfolio Committee on Labour, 25 claimants had been paid and 63 more payments were in progress.

Challenges were the identification and verifying identities of claimants, incomplete application forms and documents, and the dwindling rate of claiming. It was decided that a family member who would qualify as a witness to verify a claimant’s identity, would have to have the same surname. If the witness had a different surname, they needed an affidavit from the tribal authority where they were from.  If it was a tribal authority, other than the one where they were from which issued the affidavit, it was invalid and payment could not be made.

The CCOD recommended that it hold awareness creating workshops in areas from where they did not receive many claims, for example Mzimkulu.

Discussion
Mr Boinamo said that the matter had to be brought to a close. Workers had to be listed by former homelands. The Portfolio Committee could help to identify people through tribal authorities. Those who qualified had to be identified and those who did not, had to be told that they did not qualify.

Mr K Manamela (ANC, PC on Labour) said that the matter had to be brought to finality. In May 2011 the Ex-Mineworker’s Union had concerns which almost erupted into another set of protests at Parliament. There was uncertainty according to the report. People were still advancing claims to the parties and demanded payout, while the payout process progressed very slowly.

He said that the reason why a task team had been established was because the normal process could not resolve all the issues. Parliament wanted the albatross off its neck, so the process had to be moved along speedily.

Chairperson Nchabeleng said that the list of names had to be checked against mine databases. He could not see a systematic method that the IDTT had applied to work through the information to identify, trace and pay out ex-miners.

Ms Khaka replied that the CCOD did not check the names with the mining houses. It verified the names using the information of traditional leaders as well as the Ex-Mineworkers Union and the Labour Department.

Chairperson Nchabeleng said that the onus rested on the CCOD to determine who qualified and who did not qualify for a payout.

Ms Bikani said that the Portfolio Committee was wasting time. She wanted direct answers. The project had to distribute R54m. Was it directly linked to the 18 500 people that had to be paid? If the paid members were subtracted, how much of the R54m was left?

Ms Bikani asked how many people were traced and paid from July to September 2003. How many between September 2003 and September 2005? How many were paid from August 2009 to June 2011. How many names were published, how many were traced, how many were not traced? How many were not paid since the last report to date?

The people who needed to be retraced including the Mzimkulu group, were they part of the 18 500 or the remaining group and how many people were involved.

An ANC Member recommended that the CCOD had to go to Mzimkulu.

Ms Khaka  said that it was not only Mzimkulu from where no claimants came forward. Mzimkulu was only one example, but there were many areas from where no claims were forwarded, where there were ex-miners who could qualify for payouts.

Ms Khaka replied that there were 18 500 people. R54 million had to be distributed to them. The reason it was called a project was because it was called a project by the Office of the President. CCOD was instructed by the Office of the President for this to be treated as a project.

An ANC Member said that the presenter reported that documentation was incomplete in some cases. What was the CCOD doing to make sure that the documentation was completed correctly?

Ms Khaka replied that the CCOD had deployed staff to the Eastern Cape to train people to help claimants to fill in the forms.

An ANC Member asked regarding affidavits, whether the CCOD considered the fact that people moved around and rezoned, and that they could be better known in the area where they were currently living, than in the area from where they were originally or vice versa. She felt that family members could not be the sole witnesses to verify claimants’ identities in this project. Legitimate identifications should be made by non-family witnesses.

Ms Khaka replied that traditional leaders from areas other than where the claimant was from, or family members who did not have the same surname as the claimant, needed an affidavit in order to be a witness to verify the identity of a claimant. The process was ongoing and no-one was sent away.

Mr Maserumule said that he had worked at Blinkpan Coliery mine in Middleburg in 1976. 35 years later the conditions that workers worked under were still the same.

Ms Khaka replied that she would make the list available of claimants who were paid and those who were not yet paid.

Ms Bikani insisted, on a point of order, for the answers to the details of the question she had asked.

Ms Khaka replied that the CCOD had been reporting to the Portfolio Committee and the IDTT. The CCOD had been using the same format. The Department of Labour that was coordinating the project, had been using the same format. She did not have the breakdown that was being requested with her. It was available and could be sent to the Portfolio Committee.

An ANC Member said that the format of the report was not the problem; the information in the report was the problem. The information had to be up to date. The Deputy Commissioner was unable to answer the question, so the Commissioner had to come and account.

Chairperson Nchebeleng asked whether the money gathered interest for the claimant while it was in the possession of CCOD.

Ms Khaka replied that the money started accruing interest after the Commissioner had approved the claim. Before that point it did not.

Chairperson Nchabeleng said that the CCOD was not well prepared for the meeting. The Commissioner should have been there.

Mr Boinamo said that a meeting had to be convened with the Commissioner present and a breakdown of the 18 500 cases and its stages of progress had to be provided.

Mr Maserumule said that there was nothing wrong with what the Deputy Commissioner was saying, but the Commissioner had to avail himself for a meeting with the Portfolio Committees within the next 21 days.

Ms Bikani agreed with the report of 6 May. The IDTT had to be reformulated in order to continue with the work. The people of the IDTT also had to come as a collective. Their information had to correlate. They were not working together. In the report conclusive recommendations had been made about the date when this work had to be completed. That date should come up again. The figures stating the current situation had to be provided.

Chairperson Nchabeleng said that the Deputy Commissioner could not answer the questions put to her. She was not well prepared. She had no records of payments with her. The issue dealt with the most disadvantaged of South African citizens. The task team was formed because there was a problem. These people had been waiting for their money for eight years. The situation as it was, was unfair and unjustifiable and he was really disappointed.

Mr Manamela asked RMA for a complete report on their investigations and findings of the 18 500 claimants, so that the Portfolio Committee could have an in-depth understanding of why only 20 out of 18 500 people qualified for RMA benefits.  He asked the CCOD to provide all the information requested as well. Parliament was under pressure from the ex-miners to resolve the matter quickly. The anger and frustration expressed by Members reflected what they saw when meeting with the ex-miners.

An ANC Member said that it was important for the IDTT to come and report. They decided on their own initiative to stop the project and go back to a normal routine. There were still challenges in the system of payment. Some ex-miners were paid but did not receive the money. What action was taken? She asked CCOD to bring proof to the Portfolio Committee of the action taken. If the Department erred, what action was taken to correct it?

Mr Ollis said that the Portfolio Committee was also making a mistake. There was no continuity in the way this issue was addressed over the last two and a half years. He was the only Member in the room that dealt with the issue then. The Portfolio Committee was going around in circles because new people came in all the time. There were two key role players, the IDTT and the unions. Initially there was one union, but there was a fight between two factions, that caused a split and currently there were two unions involved. The two unions were also playing a political game. They were deep rural people with political issues. They wanted to get the Democratic Alliance involved in the issue. They were trying to get more money.

As the Democratic Alliance, he wanted to say that the Portfolio Committee could not meet on this issue again without the IDTT and the heads of the CCOD and the RMA being present. Without all the relevant parties present, too many pieces of the puzzle were missing and a clear picture could not emerge. It was the job of the IDTT to pull everything together. The Director General and higher office bearers had to be here. If the unions were going to be present, there would have to be a translation service available in the meeting.

Someone needed to tell the people the truth. All of them were not going to get money. Then the issue had to be closed. The unions involved were a pressure group that would come back again and again to claim more. On a previous occasion, it cost Parliament R600 000 to send them back to the Eastern Cape by train.

The R54m had been given by the mines. They did not know how many people had to be paid. It was just an arbitrary figure. It was divided up. Each of the 18 500 would get R2 700.This information got lost along the way because there was no continuity.  He said that a table of names had to be drawn up, stating who was entitled to money and who not. This list had to be published formally in writing in the newspapers in the Eastern Cape. Dealings with the unions then had to be finalised.

Chairperson Nchabeleng said that was a Department of Labour departmental matter and the Director General had to come to the Portfolio Committee to play his role in the process.

Chairperson Nchabeleng would write a letter to the Minister complaining about the Director General. There was a suggestion to meet with the relevant people in 21 days.

Mr Ollis agreed that the Director General had to be present and he had to come with at least one person representing the IDTT. The Director General was new and information would have been lost, so for continuity sake he had to come with somebody from the IDTT. The Director General played an oversight role over the task team.

Ms Bikani said that the Chairperson of the Portfolio Committee on Mineral Resources also had to invite the IDTT to the next meeting for the sake of coordination. The task team had to give a report to the Portfolio Committee by the 21 June 2011 to indicate who had been paid and who not.  When the next meeting happened that report had to be available, and the task team had to be told that the report was expected.

Mr Nchabeleng said that it was a problem to get the current report. It came the previous day after being begged for.

The meeting was adjourned.

[Mr Maserumule chaired the first half of the meeting and Mr Nchabeleng chaired the second half of the meeting.]