Uncompensated Miners with Silicosis: Prof Ehrlich, Deputy Minister, Chief Inspector of Mines briefings

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Mineral Resources and Energy

24 June 2015
Chairperson: Mr S Luzipho (ANC)
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Meeting Summary

The Committee heard briefings from Prof Ehrlich of the University of Cape Town's School of Public Health and the Department of Mineral Resources (DMR). The presentations focused on the health of ex-mineworkers, particularly those suffering from silicosis, a respiratory disease developed by inhaling silica dust over an extended period of time which leads to scarring of the lungs. Mineral Resources Deputy Minister Oliphant and Chief Inspector of Mines in attendance.

In both the presentation by the professor and the DMR, the process of compensation was explained. They went through the acts which govern the health of workers as well as their administration and pay-out benefits. Ex-mineworkers are protected under the Occupational Diseases in Mines and Works Act (ODMWA) which is administered by the Department of Health, whereas all other workers fall under Compensation for Occupational Injuries and Diseases Act (COIDA) which is administered by the Department of Labour. Both presenters explained the inferiority of the ODMWA system which has not kept up with inflation and causes many difficulties for the ex-mineworkers seeking compensation for diseases. They agreed that this Act needs to be reviewed and possibly changed.

Both presenters highlighted the one stop service centres, which are comprehensive health clinics set up to examine and treat ex-mineworkers for diseases like silicosis. These centres have allowed more people access to medical examination since they are in provinces which have a high proportion of ex-mineworkers who otherwise may not have been able to get an examination. The Department has plans to build more one stop service centres in other provinces as well as in neighboring countries.

Prof Ehrlich explained the nature of the disease as well as the difficulty in diagnosing it since it may not appear on an x-ray until 15 to 20 years after leaving the mines. Many individuals who have silicosis have difficulty being medically examined to get their compensation because there are few hospitals able to properly process the ex-mineworkers and diagnose silicosis. Once a claim is submitted, there is a heavy backlog in the system, so many individuals become discouraged during the waiting period and give up. The DMR faces the difficulty of trying to find individuals who are entitled to the benefits.

Prof Ehrlich explained why many ex-mineworkers must go to court to claim their compensation. He shared that this is a failure of the statutory system, but this is not all negative as large suits garner national publicity and can be an impetus for change in the mining sector.

To measure the effectiveness of the current “zero harm” initiative, he explained that there are two methods: looking at the disease and the dust. The difficulty in using disease as a measure of this initiative’s success is the latency of silicosis. Although early indications can be given through autopsies, the true effectiveness of the initiative will not be seen until 2028. The other measure is the amount of dust in the mines. This is a more straightforward measure, in which the goal appears to have been reached, but there is no independent verification of the mines’ reports and areas of high dust levels can be hidden in the averaging process.

Prof Ehrlich reiterated the difficulty of determining the actual size of those with the disease since there is no knowledge of the number of ex-mineworkers and there are many barriers to determining this number. He stated that if there is no knowledge of the size of the problem, there is no way to begin to fix it, and if current estimations are true, if every potential claimant were to claim, the Fund would be technically bankrupt.

Deputy Minister Oliphant reviewed the decisions and processes that have led the Department to where it is now. He highlighted the measures the Department has taken to get ex-mineworkers their compensation as well as prevent further diseases. He stressed the new initiative of one stop service centres as being something of particular importance.

Chief Inspector Msiza highlighted the laws and policies in place to protect the health of mineworkers. He showed graphs and charts demonstrating the generally positive trend of decreasing diseases but stressed there is still a vast amount of work to be done. He shared data on HIV/AIDS and TB which was an improvement over previous years.

He highlighted the drastic need for a shift in the mines’ culture towards promoting health. Mines have done a good job of instilling a culture of safety, but diseases caused by the mines kill many more people than accidents. Although there are many challenges that face this shift, the Department as well as the mines, as expressed at their 2014 Summit, are committed to improving the health conditions of the mines.

During discussion, many Members indicated their anger at the complacency about health among mine owners as well as the inability of all involved parties, including the Committee, to actually get something done. Mr M Matlala (ANC) was particularly vocal in his reprimand of the mine companies and CEOs stating that people who are not genuinely concerned with the health of the miners need to be fired. He criticized the Committee and Department stating that if this simply continues to be a “work in progress”, they have failed the people and should leave.

Many questions were asked about what would be done to independently verify the dust reports of the mines. The Department indicated it was currently seeking the proper external body to do so, but it is a priority. The Committee was curious as to the effectiveness of the one stop service centres, from entry to receiving compensation, and the plan for more of these centres. Others worried about the ability of ex-mineworkers to afford transportation and food while going to these centres. DMR indicated that the Department of Health does reimburse individuals, but this is a crucial micro-issue that needs to be followed up.

The Chairperson remarked that this matter was complex and involved many offices, but he was confident that DMR would take into consideration what was said by the Committee and collaborate with the proper departments to solve this challenge. The Committee would also meet with the other relevant departments.

Meeting report

The Chairperson welcomed everyone to the meeting and reminisced over the sign of greatness the South African rugby team showed twenty years ago and hoped that this Committee and the stakeholders about to enter negotiations would be able to capture that same spirit to contribute to stability in the mining sector.

The Chairperson expressed his desire to have issues resolved in a collaborative manner as opposed to taking the matter to court, as one party has done in seeking a declaratory order. He is hopeful that a solution will be reached, though. In many cases, taking a matter to court shows the inability to resolve issues via normal functions.

Presentation by Prof Ehrlich
Prof Rodney Ehrlich, Head of the Division of Occupational Medicine at the University of Cape Town, briefed the Committee on protecting the health and compensating disease in miners.

Prof Ehrlich first explained that Silicosis is the scarring of the lungs due to inhaling silica dust. He showed and x-ray of a healthy lung and that of a person with silicosis, and the scarring on the lung was apparent. He indicated that silicosis often leads to tuberculosis.

The Committee had asked him to address three main questions, so he structured his presentation by those three questions.

1. What difficulties face sick ex-miner (and their families) in getting compensation for their disease.

The Occupational Diseases in Mines and Works Act (ODMWA) has been administered by Department of Health since 1984. The purpose of this Act is to compensate miners who have become sick due to their time in the mines. The fact this is administered by the Department of Health causes serious issues because they are already very busy and this is an area that is not necessarily a perfect fit in the department. While ODMWA was originally established to ensure mineworkers specifically were being cared for, the Act provides substantially less than if the workers were simply under the Compensation for Occupational Injuries and Diseases Act (COIDA). ODMWA provides Income replacement during temporary incapacity for TB if in mine employment (75%). It provides income replacement for permanent incapacity that is restricted to lump sums at “first degree” or “second degree” depending on extent of disease. A part of ODMWA which is unique to South Africa is the act’s provision for post mortem compensation, even if the mining disease was not the cause of death. It provides for two yearly “benefit examinations”, unless you are already 2nd degree.

The barriers facing the individual miner in getting compensation are many. First, prior to the claim, ex-mineworkers, black ex-mineworkers in particular, have poor access to compensation medical examinations. Since most mine workers come from rural areas, this is a major problem facing the accessibility of the compensation process. Additionally, the system is poorly understood by black ex-mineworkers. White mineworkers have historically known their rights and what they are entitled to, so they are much more likely to access the system than their black counterparts. “One stop services”, specialised clinics to diagnose and treat miners, have recently opened at Carletonville and Umtata to make the services needed more accessible. Very often, a provincial hospital will not know the Act or the how to properly diagnose and treat the disease, so these centres are a good step forward. Secondly, once a claim is submitted, there is reportedly an 8 000 case backlog in medical certification at the Medical Bureau for Occupational Diseases (MBOD). There is a heavy reliance on part-time doctors to verify the claims. Finally, after the claim is medically certified, there is a massive backlog of current claims payment at the Compensation Commissioner for Occupational Diseases (CCOD), approximately 104 000 of which many are unfound mineworkers and missing paperwork.

There is a longstanding consensus that the ODMWA system needs to be reformed, but there are significant political barriers. The last financial statements were submitted (but not accepted) for 2010/11. There is a lack of an actuarial assessment and doing so would be very difficult. Solvency remains an issue because according to the last assessment, if the estimated number of people with these diseases all claimed, the Fund would be bankrupt. Another issue is that levies are paid only by mines “controlled” under the Act. The number of such mines is down to 246 from 920 of about 1 600 in operation, although it is important to note many of those are small mines which do not need to be controlled. Prior to 1997, levies were based on an air quality system; they were then set on basis of claims experience in 1990s by commodity (gold, platinum, coal, etc.) and increased based on fund need after that. Levies would need to be raised one hundred times over to cover the expense if every claim was made. A Chamber of Mines court challenge against a rise in levies failed. The administration of MBOD and ODMWA are funded from general taxation, which amounts to R55 million per year. This is unlike most offices which take directly from the revenue source.

Under the current system, it would be substantially better to get Silicosis from another job and fall under COIDA benefits. There are many ways ODMWA is inferior to COIDA. First, the lump sum benefit is based on wage a formula for 1st and 2nd degree which uses a capped wage (currently R3 000), not the actual wage. The average wage of a mine worker is R4 500. The benefits have lagged behind inflation. In 1973, 1st degree compensation covered 2 years of wages, in 2013, it only covered 7 months. Harmonising (or merging) with COIDA would greatly increase numbers compensated and amounts paid, and reintroduce pensions. He remarked that this would be a hugely expensive venture.

Prof Ehrlich suggested some possible solutions to various spheres. A merger with COIDA is a possibility, but COIDA itself is dysfunctional, and adding 1 million additional people to the system would surely cause serious issues. As for the financing of the administration, this should be done through levies and not the taxpayers. The MBOD needs to improve conditions of service, allow flexibility in appointment and payment of medical staff, and amend the law to allow decentralisation of medical certification. The CCOD could transfer its functions to a separate agency or to a private insurance mutual company, with the Commissioner exercising appropriate statutory oversight. A full reform (equity and efficiency) is likely to lead to large actuarial deficit. A major barrier to reform is money.

2. Why do mineworkers who have gotten lung disease because of their work need to go to the courts to get compensation?

There are many different reasons for this. The first is a failure of the statutory system. Unlike civil law, ODMWA does not incorporate a principle of negligence, nor a provision for damages, pain and suffering, nor a court determined loss of earnings. There is a larger burden of proof, and therefore cost, of litigation. The payouts, however, are much larger if successful. Taking the matter to court allows for settlement, via a class action lawsuit, which could cover a large number of miners with silicosis. There is precedent for this in the case of the asbestos settlement and the Asbestos Relief Trust.

Litigation can have other positive impacts. A big court case garners publicity which engages public interest. A large lawsuit can result in a large number of ex-mineworkers being tested, many for the first time. It serves as a preventative effect in action by mines to minimise silicosis occurrence. It may accelerate reform of the statutory compensation system.

3. Are measures now in place on the mines (through the “zero harm” initiative, for example), that limit the exposure of present mineworkers to silica dust, so that no new cases of silicosis will appear in mine workers?

Prof Ehrlich explained that silica is silicon dioxide, a component of hard rock and sand, found in gold mining, sandblasting, foundry grinding, and other areas. He explained that due to the nature of the rock where the minerals are found, there is very little silica in platinum, a medium amount in coal, and a large amount in gold.

There are many protective measure in place. The primary measures include limiting exposure of workers to airborne concentration of silica particles through wetting down, ventilation, filtration, clear-out periods, task segregation, and more. Respiratory protection (masks) is a secondary protective measure, which is used when primary methods are not feasible or have failed. It is very difficult to assess the compliance or effectiveness of masks because they are extremely uncomfortable and interfere with communication, so they are often not worn.

There are two ways to know if these processes are working: no disease and no dust. The 2003 undertaking stated that “by 2013, no new cases of silicosis among workers exposed for the first time after 2008.” However, there has been a steady flow of annual silicosis cases shown in the mines’ annual reports (1 500 to 2 000 of active miners in recent years have gotten silicosis). A major problem is that the MBOD has not produced an annual report since 2000. The difficulty in using prevalence of the disease as a measure is that it takes silicosis 15 to 20 years to appear on an x-ray. Thus we will have to wait until 2028 to know whether the above goal has been met. There is some advance knowledge due to autopsy information, but this is obviously limited.

The second way of measuring if the processes are working is by looking at the levels of dust.
The use of an occupational exposure limit (OEL), a concentration in air of silica particles, below which most workers will not get silicosis over a lifetime (40 years) of exposure, is the main method of measurement. The OEL in SA is 0.1 mg per cubic metre of air (mg/m3), which is not necessarily visible, especially in mines. It is important to emphasize that this is the level where most workers will not get silicosis over a lifetime. It is still not ideal. The 2003 declaration stated: “By December 2008, 95% of all exposure measurements result will be below the occupational exposure limit for respirable crystalline silica of 0.1 mg/m3”. This goal was reached in 2013 according to DMR, but there has been no independent verification.

Emerging evidence suggests that exceedance of the OEL get “buried” in averaging, or by random sampling of workers rather than focusing on where the dust problem is worst. However, even with 100% compliance, there is evidence that OEL of 0.1 mg/m3 is not completely protective against silicosis. There is a new (non-statutory) aim to reach half the current OEL, i.e. 0.05 mg/m3, by 2024. (MHSC milestones). In any case, there needs to be independent verification of dust monitoring and public accountability by publishing annual dust reports, just like disease reports are done.

Deputy Minister of Mineral Resources briefing
Deputy Minister Godfrey Oliphant thanked the Committee for its focus on this crucial matter and the Professor for his input and presentation.

This issue has existed for quite some time. In 2007, Parliament set up an ad hoc committee on Matters Relating to Ex-Mineworkers working with many departments to try to bring the matter to a conclusion. This dragged on for some time. In 2013, the Deputy President called the DMR and the Department of Labour together to see how the process could be expedited. The Deputy Minister was put in charge of ensuring this happened. He and his team immediately got on the field with trackers because there was money to be paid to the workers from the government. The goal was to close the issue in a year. This effort of tracking and tracing caused the Department to see the need for the one stop service centres. This was the genesis of the centres, with the first one opening at the Nelson Mandela Academic Hospital in Mthatha in April 2014. To date, that special clinic has seen over 4 000 former mineworkers. In other provinces where there are no one stop service centres, special arrangements were made with hospitals.

An issue found while traveling the country was many doctors were not able to properly diagnose silicosis. It can easily be mistaken for another disease or just a cough. The Department saw the need and will open more of these clinics in other provinces and in neighboring countries.

At these clinics, people are receiving clinical examinations, rehabilitation and assessment, mental health interventions, diagnostic tests, health promotion, referral to specialists, temporary overnight accommodation, and other services. Difficulties have arisen when people have no food or travel is a great burden. The Department is working hard to improve this situation.

The unassessed documents at the Department numbered about 700 000. The Compensation Commissioner in the Department of Health has been working with the Chamber of Mines and others to go through these files. Approximately 200 000 files have been gone through; about 103 000 of these files have been identified for payment. That is currently what the Department is doing – identifying, tracking, and tracing individuals who should be compensated. This matter is still outstanding and they will continue to search for the workers who need to be compensated.

R1.5 billion has been set aside to compensate ex-mineworkers, but payment is only a part of the issue. The major issue is that ex-mineworkers must be examined at least every two years.

In closing, he wanted to highlight that the biggest killer in South Africa is actually TB. 80% of people who suffer from HIV or AIDS have TB. There are many efforts to diagnose and prevent TB. This is a massive program among ex-mineworkers.

Mr Oliphant indicated that Mr David Msiza would continue with the details of what is being done in the mines.

Chief Inspector of Mines briefing
Mr David Msiza, Chief Inspector of Mines, began by explaining ODMWA and COIDA and by whom they are administered and whom they cover.

He explained how the DMR collaborates with Departments of Health and Labour to establish one stop services. There are currently one stop services in Mthatha (Eastern Cape) and Carletonville (Gauteng). Other centres that are to be finished in 2015/16 are in Kuruman (Northern Cape), Burgersfort (Limpopo), as well as in some neighboring countries (Lesotho, Mozambique, and Swaziland). There are plans to establish more centres in other provinces and mobile units.

One stop service sites provide a variety of services which include medical examinations, rehabilitation assessment and services, as well as post mortem examinations. They are sources of health promotion and awareness. Some of the social services they provide include social development, counselling, and bursaries. Finally, they provide financial services related to compensation, unemployment insurance, pension, provident and other funds.

Mr Msiza then highlighted the major occupational health and safety legislations. The Occupational Health and Safety Act (OHSA) of 1993 is administered by the Department of Labour and covers all workers except those covered by the Mine Health and Safety Act (MHSA) of 1996. The MHSA is administered by the Department of Mineral Resources and covers all workers in mines. It is the belief that this Act has caused a significant improvement, particularly in regards to safety.

In the Act, an employer is to establish a system of medical surveillance. It says:
13(1) The employer must establish and maintain a system of medical surveillance of employees exposed to health hazards.
13(2) Every system of medical surveillance must –
(a) be appropriate, considering the health hazards to which the employees are or may be exposed.
(b)(ii) prevent, detect and treat occupational diseases.
(c) consist of an initial medical examination and other medical examinations at appropriate intervals.
The goal is to ensure that workers are as healthy as they were when they came into the mines.

Mr Msiza outlined the guidelines for the compilation of a mandatory code of practice for minimum standards of fitness to perform at a mine. The objective of this is to assist the employer of every mine to compile a Code of Practice (COP) which, if properly compiled and complied with, will ensure adequate medical surveillance.

The employer must ensure that the occupational exposure to health hazards of employees is maintained below the limits set out in Schedule 22.9(2)(a) and (b) The OEL for crystalline silica is 0.1 mg/m3.

The Occupational Health Programme on Personal Exposure to Airborne Pollutants’ objective is to assist the employer of every mine to compile a COP which, if properly compiled and complied with, will considerably reduce the risk of exposure to airborne pollutants including silica dust.

The Occupational Hygiene Programme is a programme aimed at airborne pollutants risk assessment and control. In this programme, there is a determination of Homogeneous Exposure Groups (HEG), dividing the areas into three groups: A (likelihood of exposure over OEL), B (50% of OEL), and C (10% of OEL). In this way, it is easily defined where the majority of workers should be. This programme does personal dust exposure monitoring. It established the airborne pollutants Measurement Methodology. This programme seeks to find a linkage between occupational hygiene measurements and medical surveillance records.

Mr Msiza reviewed Slide 13 showing the favorable trend of fewer workers exposed to HEG A and B areas. Slide 14 shows the compliance year by year in relation to the target of 95% compliance of the OEL. It demonstrates that the sector appears to have reached its goal of compliance in 2013. These numbers, however, are from self reporting of the mine and are unverified. The DMR has begun a verification process.

Annual Mine Reports (AMRs) are being submitted by more mines, as shown on Slide 15. He remarked that most of the bigger mines are reporting and the department is working on getting the smaller mines to do so as well.

Mr Msiza reviewed the chart on Slide 16 which showed the occupational diseases of all mines over the past seven years. The overall trend is decreasing, but the numbers are still high and latency is an issue with reporting. Slide 17 showed the prevalence of silicosis, tuberculosis, and noise induced hearing loss (NIHL). While there has been some reduction over the past ten years, there has been some regression in recent years.

Slide 18 shows the silicosis cases reported by sector in 2013 and 2014 and demonstrates the decrease on the year of cases as well as the prevalence of this disease among the gold mining sector.

The 2013 HIV/AIDS and TB Data are listed in Slide 19 and the number of members who tested HIV positive is down and the number of people counselled and tested for HIV is up.

The chart on Slide 20 shows that the clinical causes of death have decreased over the past ten years, but shows that many more people lose their lives from health issues as opposed to safety issues. Mr Msiza indicated the need for a shift in focus towards health.

There are many challenges facing the Department in terms of curbing these diseases. Entrenching a sustainable culture on health and safety in mining sector is crucial but will certainly be difficult. There is still exposure of workers to airborne pollutants. Until this becomes no exposure, there will always be a risk. In some mines there is no or inadequate reporting of health statistics. In dealing with current issues, the high rate of occupational illness and diseases that were developed years ago are still facing the department. Effective implementation of integrated HIV/AIDS and TB programmes needs to be done. Additionally, the department needs to adopt research outcomes and leading practices in a timely manner.

The DMR’s intervention on health is to implement audit and inspection tools to improve on health matters including silicosis, HIV, AIDS, and TB. Where necessary, the DMR will withdraw mineworkers exposed to health hazards including dust in terms of legal provisions. The Department is reviewing the Mine Health and Safety Legislation. It has requested CEOs to engage independent institutions to review their company’s health and safety systems. Additionally, there is promotion of occupational health in the mining sector through Tripartite workshops, MHSC promotional material, and other individual stakeholder engagements.

In terms of skills developments, the DMR will collaborate with the Mining Qualifications Authority (MQA) to ensure that the curriculum of skills development programme includes health and safety matters including TB, HIV and AIDS, and other diseases. The department seeks to is developing and seeking to implement action plan to improve the pass rate of certificate of competency examinations with occupational hygiene included. Since there is a lack of health practitioners, the department will continue to train occupational health and safety representatives and shop stewards. In 2014/15, there were 10 915 individuals trained.

DMR is embarking on restructuring the process to strengthen its capacity to monitor compliance with legal provisions. This will include increasing the amount of occupational health inspectors. This commenced with the learner inspector programme where 50 graduates were placed at different mines, which included occupational health learners. The department will enhance occupational health information evaluation.

Mr Msiza highlighted the 2014 Summit commitments on Slide 25 which shifted the emphasis to health. Relating to Silicosis, the Summit committed that bY December 2024, 95% of all exposure measurement results will be below the milestone level for respirable crystalline silica of 0.05 mg/m3 (individual readings, not average results). Also, using present diagnostic techniques, they commit to no new cases of silicosis occuring amongst previously unexposed individuals. The Summit committed to various reduction and prevention effort of TB, HIV and AIDS infections (slide 27).

Mr Msiza noted that there must be a strong emphasis on practice and implementation of these goals. He noted there were clear action plans and initiatives for each commitment (slide 28).

In conclusion, he recognised the improvement in the industry in regards to health, but there are still significant efforts required to prevent harm on mineworkers as a result of health hazards. The Department will continue to enforce the legal provisions and collaborate with all stakeholders to ensure that there is further improvement on the health matters.

Mr M Matlala (ANC) said many of his questions had been answered by the presentations. He feared that he was going to have to shoot the messenger because the report received is that some of the CEOs are not doing their jobs. Soon they will be forced to use the powers in place to fire people and put people who are genuinely concerned about the former and current mine workers. He worries that if they do not deal with this matter now, they will have to deal with it for the next hundred years. It is constantly being called a “work in progress” but nothing is actually being done to help these people. He indicated he does not want to be on the Committee five years from now and see no progress. The questions asked in the past, are the same questions the Committee is asking now, and will be the same questions it asks in the future if nothing is done. The Committee was not elected just to hear stories saying it is a 'work in progress' and not deal with the issues.

He was not convinced by the statistics. How many people are sitting at home now affected by these diseases, silicosis and others? Is there a plan in place to eradicate these diseases in mine workers? He is afraid that years from now people will cry foul and discuss programmes that are in place, but no real solutions will come.

Why has the MBOD not produced an annual report since 2000? What are the reasons? Is someone not doing his or her work? If not, fire them. Members of the Committee need to do real work. If the Committee cannot get work done, it would be better to go home and tell the people we have failed. The mine workers are mainly only being examined in Johannesburg. Is the transport of the ex workers from other areas being subsidised by the department?

Mr M Pikinini commented that there is not really a plan on how to help ex-miners, particularly those who have already passed away. Another difficulty is that there is no record of how many ex-miners there are in each province that were affected. The other matters he highlighted were the need for prevention and the difficulty of seeing who has the disease. He equated this issue to a dangerous turn in a road where many people die. Instead of solving the problem, a sign is put up and ambulances are there prepared to take people to the hospital. This is not a suitable way of dealing with this problem. He expressed concerns over other matters of health of the workers, for example their meals.

Another issue that he mentioned was that the country spends on research, but there is no implementation of what is found.

Health concerns must be a part of CEO contracts so that everyone is involved.

Mr H Schmidt (DA) noted the complexity of this issue because it is not only a function of the DMR, Labour, or Health. When the miner is still an employee of a mine, it is a DMR issue, but as soon as he or she resigns it moves primarily to be a function of the Department of Health or Labor. This shift in responsibility puts the ex-mineworkers into the very broad responsibility of Health, where it is easy for them to be neglected.

He expressed his concern over the lack of an actuarial determination of liability. If there is no knowledge of how big the problem is, there is no way to resolve it. He asked if Prof Ehrlich knew where that responsibility would lie. This determination needs to be made to see what reforms could be made which could actually be afforded and implemented. At some point, there is a practical reality to this issue, and he believes that would be the best place to start.

It is clear that mines have a responsibility to ex-mineworkers; how one defines that responsibility is where the issue arises. How can the responsibility be placed on current mining companies? How should this all be paid for – levies, taxpayers, mining companies? All of this needs to be kept in mind, because as he understands, the mines are not going through a very profitable time. All the impacts from all the proposed solutions need to be considered from a monetary standpoint. He completely agrees that this should not just be a taxpayer issue, but possibly a matter of joint funding.

Ex-miners Pension Fund matter is still unresolved. He expressed concern over this since the Committee first dealt with it in 2007. He acknowledged certain difficulties related to foreign workers, but there are still large amounts of money that need to be distributed. This matter needs to be explored and resolved because it certainly has similarities between the processes related to ensuring ex-mineworker health.

He noted his desire for a third party verification process. He asked the DMR how this could be implemented.

He expressed concerns that not enough mines are reporting. If 800 mines reported, and if there are roughly 1 600 mines, there are just as many mines not reporting as reporting. He asked if this was a correct assumption.

He asked if the statistics of the “2013 AIDS and TB Data” table (slide 19) were accurate, particularly the percentages, which seemed too high. He asked if the percentage indicated for “Tested for HIV” was the percentage of people who had been counseled for HIV, while the “Counselled for HIV” percentage came from the proportion of the mine workforce as a whole.

A member of the DMR delegation affirmed his assumption.

Mr J Esterhuizen (IFP) indicated that the numbers of current litigation from ex-miners is likely to represent only about 10% of those affected. For decades the mining industry has had a legal obligation to prevent and treat lung diseases and they have failed to comply. The industry has cast the responsibility to care for these ex-mineworkers on their wives and children. Family members must leave work or children withdraw from school to care for these miners. An additional issue lies in the reliance of the industry on foreign labourers. Many of those who die from these diseases, do so in their own countries and people here do not even hear about it. The use of their cheap labor is reminiscent of the times of Apartheid where the mines were able to control the labour force and pay them very little.

Mr Esterhuizen made mention of a case in October where mine workers are suing 32 mines for their right of compensation for these diseases. This class action lawsuit is being brought by 56 former mine workers or their surviving dependents. He wonders just how many people are affected.

He cited the use of third party labor brokers to shift the responsibility off of the mineworkers. In this way, the mines can shift the safety and health of the mineworkers to the third party companies.

In another case where there were 23 claims, Anglo-American provided documents totaling over 1 million pages. What chance does the poor mineworker really have to win that case?

He expressed skepticism over the fact that only 1% of mineworkers are diagnosed with TB, 97% of whom were then treated. Of course if the numbers are that low they can be treated. He shared his deep concern over the statistics that showed improvement. He said that the improvement simply is not good enough. He told the story of a long time mine worker, who died six months before he could even receive his measly settlement of R16 000 (one year’s salary).

The two pieces of legislation make two systems of compensation. There are far too many loopholes in the system that allow businesses to get out of their responsibilities to their former employees.

Ms M Mafalo (ANC) asked whether the funding for transportation of the ex-mineworkers to the one stop service centres was already in place or if it is for this upcoming fiscal year. Additionally, she asked when would the one stop service centres be opened in other provinces. She wondered how long does it takes the DMR to verify the data they receive from the mining companies. She asked if employees were still paid for when they are removed from mines due to health and safety reasons and what this process was.

She highlighted the need for families to receive help because they have to care for the sick former employees. How are they being compensated, if at all? She asked which amount would be greater for a sick former mineworker: pension for life or a one-time payment?

Nkosi Z Mandela (ANC) asked what measures are in place to hold the CEOs and mining groups accountable and what is the DMR doing to make sure health measures are prioritised. This cannot be “business as usual” where companies are making money and neglecting their workers. What are the real penalties the department is looking to implement to ensure the adherence to health regulations?

While he applauded the establishment of one stop clinics in certain provinces, he expressed the dire need for more. In Mthatha, his province, the clinic has attended to 4 000 ex-mineworkers to date. He is wondering how many of these ex-mineworkers have successfully gone through the entire claims process.

It is understood that mining companies should have a responsibility for the health of the workers, but how can this be handled taking into consideration the rapid changes of the mining houses. These claims can take a decade, in some cases with the claimant dying before receiving compensation. In that time, the ownership of the mining house could have changed two or three times, further complicating and delaying the process. He is wondering how the DMR is dealing with these complexities to ensure the system works properly.

He asked what is the turnaround time of dealing with the claims of the ex-mineworkers who are attended to at the one stop clinics, from the point of entry until their claim is determined.

Ms V Nyambi (ANC) said her question was already asked and had no further questions.

Mr S Jafta (AIC) asked if were there no ways to make the Chamber of Mines contribute to the compensation of ex-mineworkers to help alleviate the burden that has been placed on the government.

It is often very difficult to trace ex-mineworkers because they do not know their rights. What is being done to educate the ex and current mineworkers on the diseases and their rights, especially since these lung diseases take years to develop?

He asked whether establishing the one stop clinics in other countries was taking precedence over the other provinces in South Africa. He understood the need for these clinics in the neighboring countries, but what was the timeline of the establishment of more of these clinics throughout South Africa.

Response from Prof Ehrlich
There is no knowledge of the total number of South Africans with Silicosis. Mines only diagnose diseases among the current workforce. The size of the gold mine workforce has decreased substantially from its high in 1988 at 500 000 to about 130 000 today. There was a study done in the 1990s in the former Transkei among old mine workers, those who had worked in the mines for an extended period of time, that found that 20-30% had Silicosis. Once other mine diseases like tuberculosis were added, the number approaches 50%. In the estimation of how many South Africans have Silicosis, it is important to remember many people worked in the mines for a very short time and therefore are very unlikely to have it. The main issue facing an estimation is simply there is no precise knowledge of how many ex-mineworkers there are. A very rough estimate of living ex-mineworkers could be 1.2 billion.

He noted the annual reports on health by the mines are a big step forward. He does not see the need of an outside party verifying the results because it is what the clinic reports that is used in the annual reports. He does see a great need for follow-up and testing of the mineworkers who have left the mines, since Silicosis may not be noticeable for another twenty years after a mineworker has left a mine’s services. He applauded the DMR for their efforts in getting the mines to do annual reports, but stressed the great need to look at ex-mineworkers. Gold mining’s turnover rates are rather high, so this is of particular importance. The current annual reports provide a picture of the health of mineworkers, but the figures need to be evaluated with the lack of ex-mineworkers in the reports in mind.

Regarding the transport of ex-mineworkers to clinics for testing, Prof Ehrlich cited many examples from his university’s clinic where mine workers lived only 50 kilometres away but were unable to come and have a health check because the R50 to come from where they lived was too high of a threshold since many of them have no money whatsoever. He questioned the efficiency of the highly centralised department system in dealing with these micro-problems. He pointed out that this is a matter of only 50 kilometres; while the one-stop clinics are a good step, they may be around 200 kilometres away. He expressed the necessity of the department to intervene in this matter. In theory, the Department of Health is to provide transportation, but he is not sure how that is in practice.

Responding to the question of deceased mineworkers and autopsies, Prof Ehrlich said that if no autopsy is performed, there is very little the family can do for compensation. There are some pending cases in court where the cause of death was known to be a chest ailment and no autopsy was performed, but he believes the threshold to determine the actual medical cause of death will be too high and these people will receive no compensation.

The problem with Silicosis is that you can have the scarring in your lungs for years and be completely unaware until someone takes an x-ray. TB is different because you will have a mild cough for years and can be infecting others. Currently, there is a massive push funded by the Global Fund in the amount of $60 to 100 million to be invested in screening mineworkers, their families, and communities. He expressed hopes that this money will be spent effectively, and while the main point of this is to find and diagnose cases of TB, many cases of Silicosis should be found along the way. Each government will have to submit its own proposal since this is an externally funded regional effort in Southern Africa.

There was an actuarial calculation in 2003 that had flaws. This was the calculation that determined if everyone who could make claims claimed, the Fund would be bankrupt. Once again, the difficulty in doing this assessment in there is no idea how many potential claimants there are. There is no knowledge of how many ex-mineworkers there are, therefore no knowledge of how many there are with Silicosis, and even less of an ability to predict how many would make claims. This is a major problem because many other issues tie into this actuarial evaluation that can not be performed, like adjusting for inflation or the low wage cap.

The South African taxpayer has been a part of compensating mineworkers for over a century due to the crucial nature of this field to the country. Lung disease has been a problem for a long period of time and the government has filled the gap many times, for example paying for pensions that could not be afforded. He said this is truly a political question: “to what extent should the South African taxpayer fill the gap?” Taxpayer spending in this regard is nothing new, it is simply a matter of the extent to which it should be done.

Regarding the number of mines reporting, there was an increase in this amount since 2003. One must take this into consideration when considering the statistics. Since there are more mines reporting, statistics can appear to have improved. This would not be an issue if all the biggest mines had always reported, but that has not always been the case. He noted that some mines are very small establishments. Should they need to report?

He noted that the discussion on the burden of the family has been very small. Not only does a family have to deal with the fact that when a mineworker leaves the mine, he or she is now unemployed, but if they are sick, they need to care for them in addition to the lack of income. This will be raised in a class action lawsuit by an NGO soon. The ODIMWA provides no additional benefit to the families besides funeral payment. In the COIDA Act, there are certain allowances for care.

There is a huge expansion of contractors in mines in the 2000s. He asked the DMR as well who is responsible for paying the levies to ODIMWA.

While he could not speak on the closure of mines due to health hazards, he explained that many mines have introduced rotations so that one particular person in not exposed to dangerous levels of dust for extended periods of time. Another measure, which has not been used in South Africa, is capping, where your exposure is recorded and once you reach a certain level, you are no longer permitted to work under ground.

He said that as long as you live for a few years, your pension for life will surely exceed the once-off payment for claims. On a pension, it would take about three or four years to accumulate the amount of the one-time payment (R35 000).

Relating to how effective the one stop clinics were at seeing a patient through claim process, he stated that there was a similar set up in KZN about ten years ago, but there are no statistics available for the number of people seen, claims filed, and claims disbursed. He praised the departments for their quick and efficient set up of the clinics, but agreed that the pertinent question is actually the number of people who receive their benefits. Many mineworkers lose faith in the claim process because it takes so much time. This loss of faith can have great impact on the effectiveness of the clinics, because if others hear that going to be tested will have no impact, they are unlikely to take the time and effort to be tested, even if invited by a clinic. It is normally a three month turnaround. He reiterated the 8 000 case backlog at medical bureaus and the effort to fast-track these cases.

There is still a great level of mineworkers who are not properly educated on their rights or the health risks. He indicated many ex-mineworkers at his university’s clinic do not even know what Silicosis is. They may use the old term “phthisis” and it is something closer to Tuberculosis. Clearly there has been some failure of education among the mines. He did say there is a possibility that maybe they were taught, they just simply did not listen because of the perceived invincibility of youth. No matter what, it is clear that black mine workers do not understand the system or their rights in the same way white workers do.

Response from the Deputy Minister
Deputy Minister Oliphant said he is confident in the teams from the World Health Organization and the Global Fund who will properly manage the large amounts of funds given to help diagnose Tuberculosis.

The issues the ex-mineworkers are facing cannot always just be dealt with through litigation. He mentioned a case where the ex-mineworkers won the case, but the money rarely gets to the workers because it is all in a trust in Johannesburg and they are in rural areas. Many of them die before receiving any money won in the lawsuit.

The taxpayers will always be a part of the compensation system. This country would be nowhere without its past in mining.

The burdens are real. There are people who have not seen their family members in years or maybe have never been to the gravesite of a member who died at a mine. There are two crucial areas that need to be dealt with related to the mines: the environmental degradation and the plight of the ex-mineworkers. The department is looking into strengthening or reforming ODIMWA.

As for statistics on ex-mineworkers, they are very unreliable, as the professor mentioned. Since this is the only available data, it is the best the department has to work with.

The one stop clinics were established as an intervention to create a focal point. They can be built very quickly, but a serious issue is the lack of occupational health doctors in the country that are able to diagnose these diseases. He estimated that there are just over 30 doctors in South Africa qualified to do so. He needed to verify the length of time from entry to exit because it depends very much on each individual case. The system itself works by invitation, so the centre can effectively see as many patients as possible without causing huge queues. In the Eastern Cape before the system shifted to the one stop clinics, about 18 000 claims were on the books, 16 000 were awarded, and approximately 4 000 of those people could not be traced. People who are traced, are paid, so that is encouraging. Another issue lies with the lawyers who are using the ex-mineworkers as sources of income. The way claims are being paid now is through direct payments to a bank account, and if you do not have a bank account, the government will help you set it up. This relative success in getting people their money was due to major cooperation across multiple departments, the provincial government in the Eastern Cape, as well as the House of Traditional Leadership. The Chamber of Mines did not assist initially, but did so later on.

He suggested the Committee have a joint meeting with the Departments of Health and Labour to see the efforts they are making to resolve this issue as well. There is an effort now to consolidate all these groups’ records of the number of ex-mineworkers into one data set.

While he acknowledged the importance of the one stop clinics, he noted the goal of eventually having these centres completely integrated into the health system. Currently, the one stop clinics are placed next to existing hospitals so that they can make use of their x-ray machines and other machines and facilities. There are resource limitations to rolling them out across the country, but there are budgets that are being considered to establish these centres across the country.

It is too early to determine the exact impact of the one stop clinics, but these centres are much faster in terms of claims.

The difficulty with paying the ex-mineworkers abroad comes with the foreign governments asking for the money saying they will distribute it, while the South African government wants to give the money directly to the ex-mineworkers.

He is confident the system is improving, but he expressed the need for help from this Committee as well as the elected officials and their capacities in general. He gave an example of constituency offices in Mpumalanga being used to help fill out claim forms.

The issue of transport to the one stop clinics is paid for and dealt with by the Department of Health, that is why these clinics work by invitation to ensure this can be managed efficiently. In some cases, the transport is managed and paid directly by the Department of Health This needs to be strengthened and evaluated for issues in implementation it has, but the system is there.

He indicated that there is no timeline for further rollout of the one stop clinics.

He stated there is about R5 billion available in the pension fund and other funds and urged that shifting this to a private company would only be negative. He suggested a hybrid entity may be best to ensure that the claimants are getting what they deserve and doctors are being paid for their services, not lawyers.

The DMR has a policy that it does not care if you worked in a controlled or uncontrolled mines, whether you worked directly for the mines or for a labor broker. In their opinion, all mineworkers are entitled to the services and will be examined. The eventual goal is to have this all as an integrated health system that is a part of the National Health Insurance.

He was particularly pleased with the passion of the members of the Committee and agreed that those who do not do their work must be fired. He reiterated that this issue is huge and complex. Many ex-mineworkers or their families still live in squalor. Social programs and development need to take place to improve their existence.

He believes reports are being done on the actuarial values of the claims. He stated that this entire issue, with 700 000 files, was a very big mess that no one wanted to deal with, but the DMR has begun the process and he is content with the work being done. The next time he met with the Committee, he hopes to have the numbers from the reports that are currently being conducted.

While the health hazards can be mitigated, it is inevitable that you will be exposed to some health dangers like dust while working in the mines. That is why the system needs to be in place and efficient. Going forward, he is confident that this problem will be resolved and working conditions will be safer. Latency, however, cannot be dealt with in the same way and therefore it is crucial that ex-mineworkers are examined every two years. That is the capacity the department has in mind moving forward.

There is money in all the departments that could be budgeted, but centralising it is a difficulty. The DMR does not have a specific budget for ex-mineworkers. Once a worker leaves the mines, he becomes the responsibility of the Department of Health and, in some cases, Labour. The DMR is trying to fix this arrangement to ensure there is full service for the ex-mineworkers.

This matter was brought before the DMR in 2007. It slowed down in the interim, but regained traction in 2013. He asked the Committee to make this a ten-year programme, so by 2017 there be a comprehensive plan, programme and system to finally close the matter. He believes that this is a reasonable goal if there is proper collaboration among the departments and with government.

Response from the Chief Inspector
Mr Msiza reiterated the difficulty of this issue, particularly pertaining to latency. He used asbestos mines as an example of the issue of latency since they were closed twenty years ago, but claims are still being made.

In the instance of mines being unsafe working environments, workers are removed until levels are safe and compliance from the mine takes place. There have been major fights with ensuring compliance in the sector, particular with Section 54 interventions, which gives an inspector the right to withdraw a worker from unsafe working conditions. Many mines complain about these interventions. The department is not content with the status quo. Research has been done on safe levels for the workers, and the department will remove workers from mines that do not attain those levels of health and safety. Actions and fines will be taken against offenders.

The Chief Inspector indicated the need for a holistic approach. As Prof Ehrlich mentioned, mines are doing what they do for health and safety simply for compliance purposes. The department wants the mines to do these measures because they are the right things to do. The Culture Transformation Framework has been adopted to ensure the CEOs are trying to change the system. He mentioned there are CEOs who are genuinely concerned with the health and safety of their workers and are striving to fix the situation. The hope is that mines and managers will take the necessary actions and stop the mines before the inspectors even come if they are unsafe. This framework aims to have managers and CEOs assessed not just on profits but on the health and safety of the workers.

Commenting of the healthfulness of the meals, he noted that this is under their realm but that the focus and key issue is to improve the living conditions of the workers. The goal is for mineworkers to be able to live with their families or live in their own rooms, not in a single-sex hostel.

As for the implementation of research and development, the department has been forced to use the law to make mines abide by certain safety and health measures. If it is not made in to law, the mines will not necessarily adopt the measures.

Pertaining to the AMRs, there is not really an issue among the big mines, it is the smaller mines that do not report. Seeing as though big mines make up 80 to 90% of the sector workforce, many of the people are accounted for. There is an issue with people switching from a bigger to a smaller mine. There needs to be better integration of the system to keep track of the workers to ensure they do not have any occupational diseases.

The total workforce that reported on HIV and AIDS statistics is about 80% of the total workforce. They are comfortable with the reporting numbers, but they would obviously like to see 100%. The percentage indicated that have HIV is taken from the number of workers who had been counselled. The TB number is how many are receiving treatment, which is about 3 400 mineworkers.

The withdrawals from the mines for health reasons are temporary withdrawals to ensure they are healthy before returning to work. They do not lose pay for the day they are removed.

He indicated that the department will not stop just at keeping the CEOs accountable, but the companies and their boards. The Department wrote letters to the boards of mines that have significant diseases reported, to request a meeting with their leadership.

The Mine Health and Safety Act does not differentiate between temporary contract workers and permanent workers; any person who works at the mine, is an employee of the mine, so the employer, in addition to the contractor, needs to ensure health and safety compliance.

While the Chamber of Mines has to be forced into compliance and contribution, they are helping with compensation. In their 2014 summit, they discussed how they can help pay for the impact of Silicosis.

The Chairperson asked if the DMR could comment on the verification of the reported dust levels of the mines.

Mr Msiza said that the DMR is going to appoint and independent entity, such as the National Institute for Occupational Health (NIOH) or Council for Scientific and Industrial Research (CSIR), prioritizing the areas of high exposure and high disease, to verify the methodology of sampling and if what they are reporting is accurate.

The Deputy Minister added that where the mines are using independent organizations for mine health and safety audits, there is improvement. If the mines do it themselves, corners are cut. Forcing the mines to legally have to use independent agencies do the testing is a matter for the Mine Health and Safety Council to decide.

He added that they are not simply trying to consider ex-mineworkers as social development and social welfare payments because claims can vary between R3 000 and R100 000. Even if an ex-miner received a large sum of money, it will be gone shortly. The department has started in the Eastern Cape to get the ex-mineworkers into active economic activity. In the Eastern Cape, many are beginning to work on macadamia plantations. This collaboration with agriculture could be used across the country and the department is trying to build relationships within the agricultural sphere. This could be done across the country, for example pomegranate farms in the Western Cape. There are many areas of public and private land that has been lying fallow. These men have dug holes in the earth for so long, filling them through agriculture would be a good form of concurrent development for their livelihoods and the country. If the current system in the Eastern Capes continues to work well, this will be a way to engage other departments for collaboration, like Public Works. There are billions of Rand set aside to deal with environmental degradation the mines have caused. Avenues need to be considered to unlock these funds to help the environment while helping the ex-mineworkers.

The Chairperson noted Mr Esterhuizen’s hand and stated that it is not possible to get all the answers the Committee wants now and that this issue is far too complex to deal with just at this meeting. Additionally, the DMR is not the department directly responsible for the ex-mineworkers. The Chairperson submitted that fixing the compensation system of the DMR should be added to the programme. In the Committee Report of the Eastern Cape and KZN to be adopted, there was a suggestion for an interdepartmental forum to deal with this issue. He acknowledged this would consume a lot of time, since it would be adding two more departments. This forum could establish a complete and comprehensive plan as well as deadlines and targets. Also, is a completely new piece of legislation necessary for the compensation model. Issues of administration will need to be considered, including infrastructure. He noted that before future meetings, it may be helpful for presenters from a department to send a list of court cases, since much of the discussion revolves around them. The upcoming program must consider how to monitor and implement this common area of the health of ex-mineworkers.

Mr Esterhuizen disagreed and said in 2011, the Constitutional Court made a ruling that former mine workers who suffered from mine related diseases have the right to institute damages and claims against their former employers.

As for not knowing how many ex-mineworkers there are, how can this be? All workers need to be registered, so how is there no knowledge of how many workers there were. Additionally, once the worker leaves, it is obvious that the responsibility of the ex-mineworkers is still the mines. He criticized the mining companies trying to put the blame onto contractors which then disappear. He wondered whether miners have to sign documentation that they know the risks of a mine. He remarked that a minimal number of the people who develop silicosis actually receive compensation. A study was done where 99% of ex-mineworkers did not know what ODMWA was, even though a court case stipulated that they must.

The Chairperson agreed that there are more questions to be answered, but they cannot simply do that by themselves, they need to consult the other departments involved, and report this to the Committee, so an integrated strategy can be determined. A framework needs to be determined going forward, which may take additional legislation. Court cases can be used in support of this, but they are not the starting point. The Chairperson remarked that these comments may be misdirected since the DMR has no control of this matter. He insisted that the respective parties return to their departments and find the solutions necessary and collaborate to come up with ways to fix this problem. There will need to be additional meeting to follow all this up.

Committee business
The committee programme for the next term was reviewed and approved.

Minutes dated 10 June 2015 was adopted with amendments.

The meeting was adjourned.

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