Thousands of miners with chronic diseases associated with their work may never get paid the compensation owed to them.
This is because of a complicated levy hike proposal which would leave many desperately ill miners — some of whom have waited for years — without access to any means of support or medical care.
The Chamber of Mines is taking the compensation commissioner for occupational diseases and the Health Department to court over a proposed hike in the statutory levy designed to compensate miners with chronic occupational diseases, including silicosis and tuberculosis.
The levy is imposed in terms of the Occupational Diseases in Mines and Works Act of 1973.
South Africa’s gold miners and former miners face some of the highest TB rates in the world — the dual product of silicosis, a lung infection from exposure to silica dust released by drilling, and HIV.
Whereas the mines finance compensation, the commissioner and health department administer payments.
A 2004 investigation by Deloitte found that the fund — which has an estimated need of R1,5-billion — was short of R610-million and suggested a 15-year plan whereby the mines would fully fund the shortfall, paying 100 times their current contributions.
The chamber has agreed to some increase, but argues that companies are obliged to compensate only current employees and will not pay for former mineworkers. More than two-thirds of the estimated R1,5-billion is intended for former miners.
The initial Chamber of Mines case was filed in August last year, but no court date has been set yet.
According to Gavin Churchyard, chief executive of Aurum Health Research, which specialises in TB and mining: “The interaction between HIV and silicosis is multiplicative — those who have both face rates of TB 18 times higher than those uninfected.”
South Africa’s National Tuberculosis Strategic Plan estimates that TB rates in gold mines are some of the highest in the world and that the sector is responsible for 90% of the country’s occupational lung disease.
As the fund stands, few of the hundreds of thousands of current and former mineworkers have access to payments, which come in one-off bundles of either R30 000 or R75 000, depending on the extent of disease.
The precise number of miners needing compensation is unknown, but an analysis of data for the 21 months before December 2003 showed that 28161 claims were received, but only 400 were paid.
A 1998 study estimated that more than 200 000 former mineworkers eligible for compensation did not receive payment. Successful applications can take five years to process.
Paula Akugizibwe of the Aids and Rights Alliance of Southern Africa said the current legislation is “fundamentally flawed — its constitutionality has been questioned and the compensation is extremely low”.
“This law was created to meet the financial comfort of mining companies. It’s so incredibly messy that the companies, the commissioner and the health department can claim [low rates of compensation] are not their fault,” Akugizibwe said.
“The mining sector is realising just how much this is going to cost them and they want out.”
Coinciding with the chamber’s challenge, 10 former mineworkers, all with occupational respiratory infections, have taken legal action against Anglo American South Africa, Anglo’s former parent company, for negligent health and safety training on subsidiary mines.
According to Richard Meeran of Leigh Day, a leading British law firm representing the miners on behalf of the Legal Resources Centre: “The advice [Anglo] gave was inadequate and resulted in miners being excessively exposed to silica dust, contracting silicosis and also contracting TB because of the silicosis.”
Meeran expects to appear before a judge in August 2010, nearly six years after the initial papers were filed. He hopes the case against Anglo will strengthen the compensation system.
“We need a scheme that ensures that people who have suffered from these conditions are compensated properly, because their job prospects are significantly diminished.”