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Silicosis case finally begins

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A worker shifts rocks on a mine. The dusty environment in mines can destroy mine workers’ lungs and has affected potentially thousands of former workers with debilitating silicosis. Lawyers will be arguing their cases

PHOTO: AP
A worker shifts rocks on a mine. The dusty environment in mines can destroy mine workers’ lungs and has affected potentially thousands of former workers with debilitating silicosis. Lawyers will be arguing their cases PHOTO: AP

From tomorrow, the South Gauteng High Court will finally hear arguments for and against the potentially historic class action of silicotic former mine workers against virtually the entire gold industry – both past and present – in the country.

Separate “discussions” have already started between the mine workers’ lawyers and the major gold companies.

These seem geared towards paving the way for the most likely eventual outcome: a settlement.

In the past month, there have been several meetings between the workers’ lawyers and the seven major targeted companies: Anglo American, AngloGold Ashanti, Gold Fields, Harmony, Sibanye, DRDGold and African Rainbow Minerals.

On the mine workers’ side are three sets of lawyers and their US backers, who joined forces in 2013 after having first attempted their own separate class actions.

Richard Spoor, one of the lawyers for the mine workers, says these are not “negotiations”, but only “discussions”.

Alan Fine, a spokesperson for the mines, likewise says these are not “settlement” talks, but flow from the companies’ wider attempts to find a fair and affordable “comprehensive solution” to all past, present and future claims related to lung diseases.

The outcome of the certification hearing that starts tomorrow will probably determine the relative bargaining power of the two sides regarding the size of any eventual settlement.

The key question of how large it will be depends on how big a class action the mines are actually faced with, which in turn depends on the outcome of the hearing.

A full bench of judges has been set aside for the hearings on class certification – whether or not the fundamentally unknown number of former mine workers with silicosis can claim damages as a class. Then the actual case can go ahead.

The basic shape of the final solution is probably a lot less contentious.

The companies want to end up with a “legacy fund” that will pay “top-up” amounts to former mine workers who have thus far only had recourse to the discriminatory and dysfunctional statutory compensation system that applies only to mine workers with lung diseases (see box), says Fine.

In a similar vein, Spoor has told City Press previously that some form of compensation fund would be the best eventual outcome.

This is what happened after Spoor’s first famous legal victory, back in 2002, against Gencor (subsequently BHP Billiton) on behalf of former workers in asbestos mines who suffered from asbestosis.

About R460 million was awarded to set up the Asbestos Relief Trust.

Both sides have reason to want to avoid actually fighting the class action to its conclusion.

The mines’ basic argument against the class action is that it would be impossible on a practical level.

In court papers filed last year, Anglo American, the biggest single target because of its historical gold mine ownership, claimed that the “gargantuan litigation ... boggles the imagination”.

But this impracticality is based on the mines’ strategy, which entails making the court deal with each and every individual mine worker’s work history and dust exposure in detail.

The volume of evidence would be more than any court proceeding could handle, and litigation would probably drag on for decades – until all the potential beneficiaries were dead, goes the argument.

The mine workers’ lawyers, on the other hand, want working in a gold mine and then contracting silicosis to be viewed as more or less automatically proving negligence on the part of the gold mines.

It is impossible to know how many people are actually affected by silicosis as a result of working in the gold mines. The once vast industry has shed most of its workers – many of them migrant workers – since its heyday in the 1980s.

Some estimates suggest that up to a third of former mine workers on the gold mines developed silicosis, leading to extrapolations that at least tens of thousands of workers could claim compensation.

Long time coming

Another leg of the mines’ “comprehensive” solution involves fixing or putting an end to the existing statutory-compensation system for mine workers with lung diseases. The mines started working on this with government a year ago, says Fine.

The end point would possibly be to move the gold sector’s current and future lung-disease liabilities over to the system covering all other formal workers, the department of labour’s Compensation Fund.

The class action stems fundamentally from the discriminatory nature of the separate official compensation system for mine workers with lung diseases, especially silicosis.

It was made possible by Thembekile Mankayi’s 2010 Constitutional Court victory. Spoor represented Mankayi against AngloGold Ashanti.

That case established mine workers’ legal right to sue mines for occupational lung diseases – if they can be shown to have been negligent in protecting workers against dust.

The occupational-compensation system covering literally everyone else gives employers legal protection against damage claims in return for their contributions to the Compensation Fund.

Mine workers with lung diseases are saddled with the compensation commissioner for occupational injuries and diseases, a separate bureaucracy in the department of health that subjects mine workers to vastly inferior compensation compared with workers in any other industry, even for the same occupational disease. It was unfair even before it collapsed into dysfunction a few years ago. It has been described as a kind of long-lived subsidy for gold mines because it lowers the cost of insuring companies against lung-disease claims.

Even the question of whether the fund for this system is in an actuarial deficit is uncertain, says Fine. A valuation five years ago led government to claim that a major deficit would develop if compensation were hiked to a less discriminatory level, but the fund has not produced financial statements in years.

SILICOSIS

CLASS ACTION

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