Lung Diseases on Mines and silicosis class action cases: ex-mineworkers lawyers briefing

Meeting report

Lung diseases on mines and silicosis class action cases: Briefings

The Committee was informed that the three law firms making presentations, along with the Legal Resources Centre (LRC), formed a public interest body to serve as class representatives in the current class action lawsuit.

Richard Spoor Inc

Mr Richard Spoor, Director: Richard Spoor Inc Attorneys, explained that migrant labour was responsible for the spread of tuberculosis and the death of many miners, and had severely scarred the sub-continent. The class action had been authorised by the South Gauteng High Court in Johannesburg on 13 May 2016, which allowed gold miners suffering from silicosis and tuberculosis to proceed with their claims against 30 gold producers. During the proceedings, the Court had appointed the three law firms as counsel for the class action. The law firms not only represented individual clients, but all members of the class who were all former gold miners suffering from tuberculosis (TB) or silicosis. Responsibility was owed to the broader class, along with individuals.

He said the class action covered gold mine workers who worked on one or more of the 82 mines owned by one or more of the 30 named respondents, who had contracted silicosis or TB because of their employment on those mines, and the dependents of deceased miners who had died of these diseases. Certification of the class action was currently under appeal in the Supreme Court in Bloemfontein, but was unlikely to be heard before April/ May 2018.

Over the last two years, the claimants’ counsel and representatives of the six largest respondents -- ARM, Anglo American, AngloGoldAshanti, Gold Fields, Harmony, and Sibanye Stillwater -- who had organised themselves as the “Working Group,” had been engaged in discussions to settle the claims. Significant progress had been made in these discussions. Any settlement needed to be confirmed by the High Court. What was in the best interest in the class would determine the final judgment. The process allowed for individuals to opt out of the settlement if they were unhappy. Multilateral discussions in parallel with the suit between Department of Mineral Resources and Department of Health and organised labour about the possibility of legislative reform, had taken place.

Mr Spoor elaborated that South Africa had two workmen’s compensation systems:

• Occupational Diseases in Mines and Works Act (ODIMWA), which compensated workers and dependants who contracted diseases caused by dust exposure and was administered by the Department of Health.
• Compensation for Occupational Injuries and Diseases Act (COIDA), which compensated all workers for occupational injuries and diseases other than occupational lung diseases caused by dust exposure. Dust mining-related diseases were referred to as “compensable diseases,” which included asbestosis, silicosis (most commonly in the gold industry), pneumoconiosis, chronic obstructive airway disease and pulmonary tuberculosis.  Tuberculosis was deemed a complication of being exposed to dust over an extended time.

ODIMWA was older than COIDA. ODIMWA had been enacted as welfare public health legislation, as compensable diseases were considered unfortunate, but a consequence of mining. It was fundamentally different from workmen’s compensation legislation (COIDA), which was insurance. ODIMWA was still structured in the same manner and was regarded as welfare legalisation.

Before COIDA, workers had to sue their employers. This had been problematic for workers, and had led to a “historic compromise”. The Workmen’s Compensation Fund was created, and was managed by the Federal Employers Mutual (FEM) and the Rand Mutual Association (RMA). As part of the historical compromise, workers gave up their right to sue their employers. Compensation was thus limited to the benefits provided for under the COIDA. The requirement to prove fault was left out under the COIDA.

The compensation for COIDA had been varied. Since 1993, when ODIMWA was de-racialised, the value of compensation had declined by more than 80%. ODIMWA required Parliament to amend the benefits payable. There had been only one amendment in 1993. The maximum benefits payable to a worker was R105 000 for severe disease, which did not cover the long-term costs. For a moderate lung disease, R50 000 was paid out. Reform was stated to be needed, as workers were only being compensated for a fraction of their actual losses. The result was a situation in which workers and communities were affected where the state and society should help.  The previous notion that these diseases could not be changed was outdated, and the contemporary view was that something could be done.

Employers had not taken reasonable steps, and therefore they could be held liable. To get compensation for workers in this context was closed due to COIDA, which stated that employees could not sue employers for damages. The remedy for this was to go to the statutory compensation system.  The enactment of the 1996 Constitution created scope for lawyers to battle this. After a series of legal battles regarding mine workers in the Eastern Cape, the Constitutional Court in 2011 had ruled that mine workers with compensable diseases were entitled to sue their employers for damages. The application for the certification of a class action was filed the same year.

It was proposed that a class action be used instead of a series of individual cases. The implication was that claimants with resources would be brought first in front of the court. Courts were also going to be overloaded creating room for an industry. This was not good for courts or the workers. Class action was the best opportunity to litigate once, and to achieve settlement that could benefit everyone. The downside to class actions was described as large, complex, and expensive. The current case had been going on for five years. It was estimated the case could take up to five years. Statistics showed that 4% of clients, ex-mine workers, died every year. Since the start of the process, 20% of the clients had died. This showed the severity of the problem.

The three law firms were hopeful that an agreement could be reached this year. They had been criticised from many quarters regarding settlement. Litigation was taking place on behalf of people that they, the firms, did not know. To counteract this, consultations with various local agencies and legal resource centres had been under way. The group was under pressure to settle due to the high death rate of clients and the expenses to the industry. It was agreed that the settlement turnout would depend on how strong the case was, and the parties believed they did have a strong case. Any settlement would rely on agreement between all the parties. The buy-in of social partners was also identified as a strong factor to consider.

Mr Spoor praised the sophistication of the Mine Health and Safety Act. However, a problem with the capacity to monitor compliance and enforce legislation was expressed. Prosecution for non-compliance had been very rare. Over the last 50 years, no inquiries into deaths from exposure to dust at mines had taken place, which was unnatural -- an inquest should take place. He asked what incentives mines needed to have to keep mines clean and safe, as there were no consequences.

Compensation schemes had provided inadequate benefits. Once workers were certified, it took many years before they could get benefits. There were no quick ways to fix the compensation system. The current problem was not about bumping up compensation. This was a historical burden which companies and the state could not fund. ODIMWA was not functioning because of a disfunction within the Mine and Safety Act. ACOIDA was problematic in terms of risk premiums.

Legislative reform should not be done on an ad hoc basis. ACOIDA and ODIMWA were archaic and not in alignment of modern working-related disease conceptualisations and international standards. The solution had been put forward that the system should work in a way which incentivised the mining companies to improve health and safety. The party proposed compensation be differentiated for companies and benefits be paid more quickly to widows.

ACOIDA had been given Rand Mutual to manage the compensation fund, as ACOIDA could not function anymore. This implied a creeping privatisation of the compensation system. This was  problematic, as there was accountability in terms of appeal. It was recommended that steps be taken to ensure courts had better mechanisms to review the compensation system.

Abrahams Kiewitz Inc

Mr Charles Abrahams, Attorney: Abrahams Kiewitz Inc, said that the nature of discussions which had taken place between those affected in the suit was confidential. Discussions had been ongoing for a long time and parties had made significant progress towards a possible resolution. Once a resolution was achieved, it should be sanctioned by the named claimants, and resolutions would have to go to court to be sanctioned.

He explained that the settlement envisaged would take the form of a trust fund which would provide compensation to workers with silicosis and TB. They were mindful of the fact that an appeal could be brought against the case for adding TB, as TB contraction occurred not only due to working in mines. This was prolonging the case.

Important ideas shared had been the tracking and tracing of miners, along within establishing a relationship with the Department of Health (DoH). The Department had been very supportive, together with the Department of Mineral Resources (DMR). The goal was to align the trust with what Department was doing and had done, to ensure that structures were amplified. The trust’s life span was envisioned to be 10-15 years.

Legal Resources Centre

Ms Janet Love, National Director: Legal Resources Centre, said that the issues around the legislative framework were very complex. Legal Aid South Africa had worked with the LRC in preparation for the case. The issue of the responsibility of companies was well documented. Many companies had agreed to help the class action case, but there were many companies that opposed the class action ruling. Furthermore, some mine workers would not be accommodated by the settlement.

Cooperation from the Department of Health was identified as essential, but it was also the source of many delays in relation to getting compensation. This was due to real problems within the health system, such as machines not working and personnel not being present. She urged that the issue be dealt with from all sides.

Xulu Inc.

Mr Barnabas Xulu, Director: Xulu Attorneys introduced himself and his colleague, Mr Dave Coleman. Xulu Attorneys was a human rights practice for African lawyers. The firm had worked with communities across the country and bordering countries. He had represented the Makaza community in the open toilet saga in Cape Town, in which the firm had been successful. Most informal settlements in the Western Cape area were populated by ex-miners trying to make a different living due to their inability to work because of sickness or injuries contracted on the mines.

The firm had done research as to the roots of the problems through clients across the Southern African Development Community (SADC) region.  This was a large task for a small firm, and they had been joined by an Irish law firm, Coleman Legal, for support. Paralegals had also assisted them. He thanked the Committee for recognising the problem, but also commented that his firm had been struggling to get recognition from the Department of Health.

The firm worked with communities and focused not only on lung disease-related conditions, but also at ex-miners’ compensation from the Unemployment Insurance Fund (UIF), COIDWA and ODIMWA. This was done via a grass roots approach and constant contact regarding milestones, such as starting settlement negotiations with the mining companies. Clients were kept informed. The firm also had sessions where it travelled to rural areas.

Mr Xulu had been told by ex-miners and clients that Xulu Inc should have become their tracers. The firm had been criticised that they were not ex-miners, and therefore could not represent the group. Pension funds had adopted the same attitude when Xulu acted as a representative for these people. Ex-mine workers were not equipped to challenge the industry, and to deny them a right to be represented by a qualified lawyer was a violation of their rights. This had been taken up with the Department of Health.

Mr Xulu emphasised that the current compensation system was not easy to use for ex-miners. He had therefore decided not to follow the class action route, but individual representation. The drawback of class action was the lack of clear rules for class actions in South Africa. He added that the wheels of justice turned slowly, which made it worse for vulnerable individuals. He believed in the settlement negotiations that were currently going on, but for someone who had been unable to earn a living, waiting for compensation was taking too long.

He said he represented 21 000 ex-miners, and had been to different communities for grassroots engagement. The Government of Lesotho had expressed interest in forming a part of helping with the issue. Similar discussions with the Zimbabwean government and the government of Mozambique had taken place.

A serious problem was that of the “bush lawyers,” who were defrauding clients. His firm asked for payment only upon successful results of a case. He recommended that miners’ associations be properly regulated to ensure that ex-mine workers were not further marginalised.

Mr Dave Coleman, Director: Coleman Legal, said that citizens’ rights should have been protected, but the resources of the post-apartheid state had been too scarce to support rights for everyone. He referred to the representatives from the “Working Group” present, and said that communication was vital. He pleaded that a non-adversarial approach be taken between the parties to deal with the settlement.  He emphasised the proposed settlement could not please all.

Due to a lack of capacity in South Africa, they had engaged with nurses and school teachers for an outreach programme in 21 sites, based on volunteer work. People coming together served as a way in which they could vindicate their own rights. Furthermore, vindication did not fall solely on individual actors, but partnerships, for meaningful results. In many cases of individuals, there was no information and claims therefore could not be supported. The problem of record keeping of workers at mines was of high concern.

The Chairperson thanked Xulu Inc, and recognised the complexity of the issue. He urged that the issue be dealt with more holistically and for the Committee to view all sides of the spectrum. He asked if the Committee wanted to come back at a similar time the following week, and whether the presenters would come back with streamlined facts.

Working Group: Briefing 

Mr Graham Briggs, Appointed Representative: Working Group, said the Working Group involved six companies and had been established in November 2014 to address the issues relating to compensation for occupational lung disease in the South African gold mining industry. The focus was on silicosis in the industry.

Mr Michael Shuttler, Legal Advisor: Working Group, said the three objectives of the Group were:

• Resolving litigation by mutual compensation;
• Assisting the ODIMWA Compensation Commissioner to improve performance of the compensation fund; and
• Working with government and other stakeholders towards integration of COIDA and ODIMWA, so new miners could become entitled to better COIDA compensation.

It stressed that it did not represent the entire mining industry, only certain companies.

The Working Group had been in close cooperation with Dr Barry Kistnasamy and the Department of Health.  It had received extensive support from the Chamber of Mines. Its assistance across the sector included a payment of R165 million to improve the process of data capturing, and to provide six medical doctors, and administrative and logistical advice.

The Working Group preferred settlement rather than litigation in the class action case, not only because of the costs, but also the time aspect, as it would take 10 to 15 years to resolve. This aligned with Mr Spoor’s findings. Another similarity in the briefings, where Mr Spoor and the Working Group agreed, was the classification of miners -- those who had been in system, those who were in the system, and those who were entering into the system. There was not a quick fix for the issue. The Working Group, along with Chamber of Mines, expressed their desire to work with government and stakeholders.

Mr Briggs thanked the Chairperson for the opportunity, and asked the Committee to consider improving ODIMWA’s fund management, as there was still R3.7 million of funds to be paid.

Chamber of Mines

Dr Thuthula Balfour, Health Advisor: Chamber of Mines, explained that the Chamber could not hold firm views on the matter, but was committed to a solution for the entire industry. The Chamber was characterised as being dependent on where the settlement landed. She appealed to the Committee that the implementation and crafting of legislation should provide certainty to the industry. The Chamber’s focus was on creating an industry solution.

The Chamber had written a report after visiting the mining provinces that indicated the outcomes of legislation being adjusted, showing that many departments were impacted. The current commissioner, Dr Kistnasamy, had guided the ex-mine worker project which had shown good results, and had allowed ex-mineworkers to access health services in rural areas. She acknowledged there were still backlogs in paying out compensation. The Chamber of Mines was ready and committed to engage under the Deputy Minister’s leadership, and looked forward to a solution.

Department of Mineral Resources

Mr Mthokozisi Zondi, Acting Chief Inspector of Mines: Department of Mineral Resources (DMR), said the focus was on improving legislation within the mining sector. Attention was also focused on ensuring that the DMR had investment in its capacity to monitor the sector. He introduced Dr Lindiwe Ndelu to brief the Committee on prevention measures implemented by the Department. 

Dr Ndelu, Chief Director: Occupational Health, DMR, said the Department had a Chief Directorate of Occupational Health, and within the directorate there was a Director for Occupational Hygiene who was responsible for occupational exposure, analysis thereof and ensuring industry compliance. The Director for Occupational Medicine had to investigate occupational diseases, provide analysis, and contribute to industry compliance. The Medical Inspector was deemed responsible for appeals that were made by mine workers if they were found unfit for duty.

There was a section within the Act that allowed mine workers to make an appeal via the Medical Inspector. The provisions of the Act included that companies were expected to report to the Department within seven days of having appointed an occupational medical practitioner. Section 13 talked to the establishment of a medical system by the employers of those who had been exposed to health hazards, for which an annual report was collated. This was called the medical surveillance programme. 901 annual reports had been received in 2016.

The employers were also obligated to keep a record of hazardous waste, as it was classified in different danger categories -- A, B and C, with C being the worst. Trends from 2005 until 2016 showed an increase in exposure to category C, from 75% to 78%. Silicosis cases reported in 2016 were 635, compared to 1 609 in 2007 and 835 in 2015. For TB, 2 580 cases were reported in 2016, 4 516 in 2007 and 3 773 in 2015. Various guidelines had also been developed and reviewed on a constant basis within the past year.

An occupational health improvement strategy had been created for the reduction of occupational lung diseases. The major challenge identified was personal exposure to airborne pollutants. Regional offices had been tasked with medical and hygiene inspections at mines, as well as audits. The purpose of this was to examine the health risk management of each mine. Inquests were to be sent only upon the finding of discrepancies. A clear linkage between occupation exposure and medical surveillance records had been implemented to prove these diseases took time to develop and to establish a linkage between the diseases and mines.

During the summit, the industry had agreed to the elimination of occupational lung diseases. It was stated that by December 2024, 95% of all exposure results should be below 0.05%. At present, it was estimated to be at 0.1%. Regarding TB, the incidence rate was aimed at being below the national rate by 2024.  The current rate for the country overall was 834 per 100 000, compared to the mining industry rate of 884 per 100 000.

National Department of Health

Dr Barry Kistnasamy, Compensation Commissioner: National Department of Health: congratulated the Committee for calling the meeting. The Compensation Fund had not submitted audited reports to Parliament since 2011, and this had been the historical context of the collapsed fund, ODIMWA. There had to be joint responsibility for government processes that needed to be implemented. It was sad that there had had to be a class action to start addressing this issue. Emphasis within the Department was on pay-outs and clearing the backlog of auditing by the 2018/2019 financial year.

The Auditor General had not been able to make an opinion in in respect of the ODIMWA compensation system, as 35% of files were missing. Further problems were fraud within the system. There were also internal labour disruptions because of civil servants who opposed reforms. The reforms had included a central electronic data base, with web availability. The aim had been to give representatives and mines access to the database. Approximately 600 000 mine workers across Southern Africa had been logged on to the database, which had been implemented to track miners and identify key areas of attention.

Another initiative by the Department was the one-stop service centres for ex-mine workers, which provided medical examinations and paid out benefits. The Committee was invited to the launch of such a centre at Kuruman. Four one-stop service centres had already been set up along with 10 centres in neighbouring countries. This had decentralised services, and had encouraged increased participation. The centres were estimated to have reached 60 000 people in the last year.

It was necessary for departments to work together with industry to resolve the challenges. Legislative reforms should incorporate the tried and tested processes of the Department in Labour. The Occupational Health and Safety Act, which was not adopted in 1999, should be re-examined. Re-organisation efforts, to sort out ex-mine workers and current mine workers, were also underway. The Department of Labour’s levy covered limited resources. Access to financial services by mine workers was required, along with a reorganisation of service delivery and legislation processes.

The Department supported the class action suit, but urged that it should not create parallel systems. Prevention and immediate intervention was also stressed.

Discussion

Adv H Schmidt (DA) requested a round of questions.

The Chairperson said that political guidance was needed for the process, as the Deputy Minister of Mineral Resources was not present. The Committee needed legal advice, as this was a matter involving a legal dispute which was between the mining companies and law firms. The possible financial implications of the lawsuit were a salient issue. The Committee needed advice.  The immediate issue was not scrutinising the court papers, but the various linked factors which fell under different departments at various levels. The issues related to the agenda to transform the industry were a bigger problem, as they involved the legislative framework. There were issues about the health and safety legislative framework, which involved mandate issues for departments. Details of the cases had been explored, and the outcome of the settlement and the effect of the class action suit was linked to Parliament and the government. 

The Chairperson was concerned, as there had been no indication as to how much the DMR had overseen the process. It was a political matter which meant that great attention must be paid to ensuring equity and a fair solution. He was worried that a one-day meeting was not enough for a solution..

The Chairperson asked the DMR for political guidance, as well as information about their actions in relation to the class action suit. The Department should provide the Committee with a list of the actions and support it expected. The doctors had been summoned to report to the Committee the following Wednesday. The agenda for the following Wednesday would start with Deputy Minister, who would address the attitude of Department with regards to the current legal disputes, and provide a rundown of the processes that sought to redress the problems. 

Mr A Pikinini (ANC) seconded the motion to continue the discussion the following Wednesday, and asked Members to apply their minds to the issues discussed.

Adoption of minutes

The Chairperson took the Committee through the minutes of 8 November page by page, and then advised that on matter number four, bullet point one, the Committee could not take resolutions to adopt the minutes. This matter would be dealt with in the minutes of 15 November.

The Chairperson took the committee through the minutes of the 15 of November.

Mr A Pikinini (ANC) voted for their adoption, and Ms V Nyambi (ANC) seconded.

The minutes were adopted.

The Chairperson concluded that the issues dealt with at the meeting on that day had been very serious, as they had to do with funding, and had linked several departments with various legislative issues. The Committee would reconvene next Wednesday to get a briefing from Mr Godfrey Oliphant, Deputy Minister of the DMR, on the extent to which the Department was playing a role in the matter.

The meeting was adjourned.