The latest suite by Leigh Day and Co for workers from Lesotho, Botswana and Eastern Cape, follows recent SA cases for civil compensation against incurable disease, and cases won by specialist lawyer Richard Spoor, despite the century old law that statutory sectoral compensation mechanisms precluded civil claims.
Leigh Day had successfully sued Shell for environmental degradation in Nigeria, and Trafigura for dumping waste in Ivory Coast. The lawyers are also suing the UK state for colonial human rights abuses in Kenya.
A landmark SA Constitutional Court ruling against Anglo Gold Ashante in Marh 2011, entitles former gold miner Thembekile Mankanyi and his family to seek civil compensation. Mankanyi died of respiratory failure just before the ruling
Academic studies reveal health exploitation
Several recent academic studies in southern African labour sending areas (LSAs) back claims of corporate and societal complicity in massive exploitation of workers, particularly black workers.
• A 2008 study found a silicosis rate of 25% among former gold miners in Lesotho, and a similar rate of silico tuberculosis (silico TB).
• Silicosis increases risk of contracting TB, which is endemic in labour sending areas, including drug resistant variants.
• A study found a silicosis rate of 30% among former SA gold miners in Botswana (Steen, 1997).
• A study found silicosis rates of 22% to 36% among former gold miners in the Eastern Cape, most of whom had not been diagnosed or compensated (Trapido, 1998).
• A study found that only 2% of about 300 000 miners eligible for state compensation, were paid out.
Tight legislation, slow change
The Compensation for Occupational Injuries and Diseases (COID) Act entitles miners to meagre state compensation for silicosis, but many workers leave the industry, partly due to periodic retrenchments, and a high turnover keeps the mining labour force young and apparently healthy
With SA democratisation about 17 years ago, labour health, safety and environmental legislation was tightened to global best practice levels. A widening gap between legislation and practice added to a spurt of improvement in fatality and injury rates, but mining occupational health risk measures and risk culture were slow to change, mainly due to slow onset of silicosis, and retired miners being hidden from public view in labour sending areas.
A decade ago, 7500 asbestos miners successfully sued Cape Plc for contracting asbestosis and mesothelioma in the ‘old South Africa’.
New legislation and the asbestos compensation case triggered several studies, gradual improvement of employer driven occupational safety, health and enviro impact programmes, gradual increases in state inspections of mining conditions, and several further legal challenges of the ban on civil compensation.
Silicosis prevention measures
Best practice silicosis exposure prevention measures included engineering and industrial hygiene controls like wetting down, ventilation, shrouding, waiting before entering blasted areas, and as a final barrier, personal protective equipment (PPE) and water showering.
Newer methods include water mist created by simple high pressure devices and fans, and chemical applications on rock to trap airborne dust.
Some employers use exposure measurement ‘button’ sensors to determine high exposure areas and times, then zone areas and reschedule work programmes.
As South African Chamber of Mines health advisor Dr Thuthula Balfour-Kaipa said current methods being tested in pilot projects on leading mines, would take some years to be adopted by other mines, and the effects would be seen years later.
Anglo American ‘not liable’
The respondent is Anglo American SA, registered in Johannesburg, and wholly owned by London-based Anglo American plc, who had employed gold miners up to 1998. UK courts have jurisdiction over companies based in the UK, and civil compensation would be paid there. The SA Legal Resources Centre supports the claim with information.
London-based Anglo American maintains it is not liable since the various employers involved had taken reasonable steps to protect workers.
Claimants say they were allowed to continue working underground after contracting silicosis.
PHOTO; Attorney Richard Spoor represents most of the SA miners who seek, and found, civil compensation for occupational disease and botched statutory compensation. He is also involved in a bid by 300 former steel sector workers in Vereeniging to find state compensation, as reported on SHEQfarica.com.