The South African mining industry had under provided for class action claims related to lung diseases contracted while working underground, said Richard Spoor, an independent attorney who today scored a win against AngloGold Ashanti.
The Constitutional Court (Concourt) on Thursday said Spoor’s client, the now deceased Thembekile Mankayi, a former employee of AngloGold Ashanti, was able to claim reparation for ill health through common law rights in addition to industry specific legislation, known as Odimwa.
“Given the singular risks of mining, and its unique historical role in our country’s wealth, there is nothing irrational in preserving employees’ common law claims against their employees in respect of Odimwa-compensatable diseases,” said Justice J Khampepe, of the Concourt.
Odimwa is an acronym for the Occupational Diseases in Mines and Works Act, and is specific to mining related reparation claims.
Another piece of health and safety legislation, the Compensation for Occupational Injuries and Diseases Act (Coida; section 35(1)), prohibits common law claims but is applied to general industry and not generally used in mining claims.
The essence of this finding, which will see Spoor return the matter against AngloGold Ashanti to the High Court, is that common law claims are unlimited. They allow for claims against company negligence whereas Odimwa is restricted to issues such as medical compensation.
“We have been greatly assisted by the judgement itself,” said Spoor. “I have the impression, pretty unambiguously, that the current compensation regime is not satisfactory,” he added.
Legal sources believed that while no precedent had yet been set, the road was set down allowing for common law claims to be levelled at mining firms, potentially raising the amount of compensation for which the sector would provide.
Partner at Webber Wentzel Warren Beech said the ruling has provided a basis for mine workers to pursue civil claims against employers, although the onus would still remain on the employee to prove harm caused and the level of damages incurred. “It confirms the legal principle, but employees would still need to prove their case,” said Beech.
He said the judgment was also unlikely to lead to a litany of cases, as most miners wouldn’t be able to afford a High Court claim.
The Chamber of Mines of SA, would not be drawn on the matter. “We can’t comment on specific issues of AngloGold Ashanti, but I would say that the appeal has been heard and the matter will return to the High Court,” said Jabu Maphalala, a spokesman.
He added, however: “The Chamber has, however, been actively working in tripartite forums on the alignment and reform of the statutory framework for compensation in respect of occupational lung disease, seeking to achieve this in a manner that eliminates anomalies in the application of the legislation, but does not threaten the viability of the industry and the jobs of the people employed in it.”
Spoor believed that the mining industry at large would probably have to institute an industry wide trust similar to the asbestos industry trust that saw Gencor pay out up to R700m for miners infected with asbestosis while working at the Msauli and Gefco mines.