Less money for mining victims

Cape plc’s South African asbestos victims will get only one-third of the £21-million originally promised them by the British-based multinational.

The victims’ British lawyer, Richard Meeran, confirmed on Thursday morning that Cape had failed to honour a December 2001 agreement to pay £21-million (roughly R271-million) and was instead prepared to pay only £7,5-million (roughly R97,5-million) to 7 500 registered victims of its asbestos- mining operations in the Northern Cape and Limpopo.

The dramatic reduction will, Meeran warned, prevent any compensation for future victims of asbestos pollution or other exposure at Cape’s abandoned mines.

“Cape’s failure to deliver on the December 2001 agreement was obviously a blow. [But] after diligent enquiries, we formed the view that Cape could not afford to pay more, even though our clients are entitled to more,” said Meeran.

The key problem, Meeran said, appeared to be Cape’s failure to secure banking approval to underwrite the settlement.

“It is incumbent on us to take a realistic approach and do the best we can for our clients,” he explained.

It is unclear whether the new agreement still includes a controversial clause waiving victims’ rights to sue Cape, its insurers or a string of unrelated nominee companies ever again.

The clause, which remained secret for five months after the deal was struck in 2001, was included in return for a nominal £1-million contribution to the original Cape settlement and an additional £2,7-million contribution to Meeran and other attorneys’ legal fees.

The clause sparked heated criticism, but would have guaranteed that victims did not use their compensation to pay for legal costs.

Meeran stressed on Thursday that the new Cape settlement would be supplemented by an additional R42,5-million promised this week by South African investment holding company Gencor, which bought some of Cape’s mines in the 1980s and therefore shares liability for some damages.

The Gencor agreement to pay R42,5-million is part of a wider R490,5-million settlement hammered out by South African attorney Richard Spoor.

The mammoth agreement, which includes Gencor affiliates Msauli and Griqualand Exploration and Finance Company (Gefco), is South Africa’s largest class action, workman’s compensation and environmental-damages settlement to date.

“It’s a landmark, however you look at it.
But perhaps the most important aspect is that this isn’t a closed agreement. It’s only the start. Our portion of the settlement, or R448-million, will be used as the endowment for a national asbestos trust to compensate all existing and future victims of this toxic material,” said Spoor.

“And, we’re using the precedent established with Gencor to go after other asbestos miners. Companies need to realise their activities maimed and killed thousands of workers, and that they have both a moral and legal responsibility to use their profits to compensate their victims.”

Spoor’s team, which includes British labour union attorneys Thompson’s, will meet Swiss-based minerals group Eternit in Zurich in April to discuss compensation and is also engaging with Lonmin, Duiker Exploration and a number of smaller players.

“We are confident of amicable settlements that will significantly increase the amount of money available to the trust fund,” said Spoor.

Gencor stressed on Thursday that its agreement explicitly excluded any admission of liability, and was concluded to allow the unhindered unbundling of all of its shares in Impala Platinum Holdings — which is expected to raise R17-billion for shareholders. Gencor will pay R460-million, with Msauli and Gefco jointly paying the remaining R30,5-million, into a holding account within 30 days, but will only release the funds to the trust after Gencor’s successful unbundling some time in June.

“The fact that we’re paying the money into a holding account before this date is a gesture of Gencor’s goodwill,” said the company’s attorney, Stuart McCassert.

The South African asbestos trust intends operating for at least 25 years and will use 5% of its revenue for social development and a major awareness campaign through NGOs and affected communities. The campaign will include efforts to identify all remaining asbestos pollution “hot spots”, and will lobby local or national authorities to immediately rehabilitate the sites.

“This will give affected communities a hell of a boost, and we expect very lively campaigns to force the government and mining companies to clean up the remaining asbestos mess — not just in mines, but also in surrounding villages, rivers and bush,” said Spoor.

A linked “caregiver” campaign will seek to immediately improve treatment for victims who are already dying of lung cancer and other asbestos-related illnesses. The campaign will include training for affected family members, better pain-killing drugs for rural patients and a major education drive among doctors and nurses in hot-spot areas.

“It will take at least six months to set the trust up, and we realise that some people with advanced mesothelioma simply cannot wait that long. We will therefore be making immediate emergency payouts to those victims with fatal ailments,” said Spoor.

The asbestos victory will also have a wider impact on South Africa’s mineral sector. Spoor intends using the precedent for suing the country’s even larger gold-mining industry, where an estimated 500 000 gold miners have been abandoned penniless after contracting silicosis of the lungs.

Silicosis, reputed to be the oldest known occupational disease, is caused when miners inhale crystalline quartz silica dust. — African Eye News Service

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