Three South African legal firms are gearing up to battle 32 gold mining firms in Johannesburg’s High Court on behalf of 27,000 workers who have developed silicosis, a debilitating lung disease associated with mine work.
The lawsuit will begin in high court on 12 October and could last up to two weeks. The court is set to decide whether the sick miners and families of mine workers who have died while suffering from silicosis can be certified as a single case.
If successful, a class action lawsuit on an unprecedented scale for South Africa could ensue.
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“It is important that there is recognition of what happens in the mines. It is a historic injustice. There are hundreds of thousands of miners knowingly exposed to dangerous working conditions. It is tied to colonialism and apartheid,” says Marcus Low, head of policy at South African NGO Treatment Action Campaign (TAC).
The law firms representing the workers are Richard Spoor Inc Attorneys, the Legal Resources centre, and Abrahams Kiewitz Attorneys.
Silicosis is a painful and incurable lung disease caused by exposure to silica dust, which is a byproduct of mining – particularly gold mining. As many as 196,000 gold mine workers in South Africa and 84,000 more migrant mine workers from neighbouring countries are thought to have silicosis.
The disease frequently leads to pulmonary tuberculosis, which is a common cause of death for miners with the condition. The incidence of pulmonary tuberculosis is at least 3,000 per 100,000 gold mineworkers, compared to a rate in the general population of around 350 per 100,000.
The onset of symptoms occurs years after exposure, which means many workers have already left the mines to return to their rural homes without a silicosis diagnosis. The lack of health clinics in rural areas means that silicosis often goes undiagnosed.
While there are two government mediated compensation schemes in place, the sums they pay out are small. Many workers cannot access the payments because they cannot get the necessary diagnostic tests to prove they suffer from the condition.
The cause of the silicosis has been known since the early 1900s. Mines in other countries, such as Germany and Canada, have virtually eliminated silicosis decades ago by implementing safety measures.
“To compete with mining industries in other countries South Africa has to pay much lower wages. Other areas of cost reduction include not paying proper compensation, and not taking safety precautions,” Mr Mr Low claims.
Average wage for an entry-level gold miner in South Africa is just under $495 a month, without benefits including housing, medical and pension. That wage can rise to about $868.
The miners base their case on the grounds that the mines unlawfully exposed them to excessive levels of dust, and that the mines failed to ensure that workplaces were safe. The miners involved in the case include those who worked the mines as far back as 1965 to present day employees.
The applicants of the lawsuit argue that the proceedings take the form of a class action because the victims are geographically spread out, often living in underserviced, isolated rural areas with limited education. They argue that class action – as opposed to individual claims – are the only format in which they can access justice.
A portion of the victims are migrant workers from Swaziland, Malawi, Mozambique and other neighboring nations. They are unlikely to have access to the South African judicial system.
The mining firms argue that the miners worked in different mines, owned by different firms, over different time periods. Therefore, they cannot be treated as a class.
“Today, silicosis takes an average 20 years of exposure to dust before it can be diagnosed. This is a sign of continuing improved dust management, and today’s diagnostic outcomes are a consequence of dust management improvements made over a long period of time,” said eight of the companies in a joint statement to This is Africa.
The defending firms include Anglo American, Harmony, Sibanye Gold, DRD Gold, AngloGold Ashanti, Gold Fields, African Rainbow Minerals, and Village Main Reef.
South Africa’s mining industry has been hard hit by a sharp downturn in global commodity prices coupled with highly politicized labour strikes in the country’s mining sector. Gold prices dropped $20 on 28 September to $1,127 per ounce.
Relations between the South African government and mining companies have grown increasingly acrimonious as firms look to cut jobs to cope with profit losses.
There are three possible outcomes to the silicosis case, says John Stephens, a legal researcher at South African public interest law centre Section27. The court could rule on the side of the companies and there would be no class action, or the class action could be approved, or the court could define the class or sub-classes.
If classes are certified then settlement negotiations will likely go ahead, or there will be a marathon trial, which will determine the liabilities of each company, Mr Stephens adds.
According to Georgina Jephson, a lawyer with Richard Spoor Inc helping to represent miners, the problem boils down to lack of clarity and consistent enforcement of safety regulations.
“There are guidelines on exposing miners to levels of dust. But the rules were not properly enforced. They were clearly not enforced – otherwise there would not be this problem,” she says.
Two other silicosis cases against Anglo American are also ongoing in South Africa. They involve 4,500 miners represented by Leigh Day.