Eighteen ex-goldminers are taking on Anglo over a lung disease caused by exposure to silica dust. It's a case that could cost the industry billions.
Eighteen ex-mineworkers from the President Steyn gold mine in the Free State are taking Anglo American to court, claiming they developed a combination of respiratory infections, including silicosis and tuberculosis, from prolonged underground exposure to silica dust since the late 1970s.
The case is likely to be heard in the South Gauteng High Court next year, after seven years of research by a high-powered legal team from Legal Aid South Africa and the Legal Resources Centre, advised by UK-based human rights law firm Leigh Day & Co.
The 18 test cases have been selected to best represent the circumstances of tens of thousands of other ex-mineworkers who — if their litigation against Anglo American South Africa (AASA) is successful — could also claim damages from other companies in the mining industry.
Silicosis is a progressive, non-infectious but incurable condition, the effects of which take several years to become apparent — sometimes long after a mineworker has left employment. It weakens the lungs and increases the sufferer’s chances of contracting tuberculosis and silico-tuberculosis.
Lawyers representing the former mineworkers, who come from the Eastern Cape, Free State and Lesotho, argue that the mine’s former parent company, Anglo American South Africa, knew of the long-term respiratory effects of exposing miners to silica dust, but failed to adequately advise its subsidiaries operating the mines.
The 18 silicotic miners were exposed to dust long after they should have been withdrawn from the mine entirely or allocated to less dusty work.
Unlike ex-mineworker Thembekile Mankayi whose case against AngloGold Ashanti also for silicosis was concluded in the Constitutional Court this week, the 18 ex-mineworkers are litigating against a parent company, not a direct employer, but their arguments are similar.
According to Leigh Day partner Richard Meeran: “Anglo have been operating for decades and in that time they’ve seen people dying. They knew with certainty that their operations were unsafe. That’s not just negligence, is it? It shows an incredible disregard for human life over a long period of time.”
In 2000 Meeran successfully litigated against a parent company, Cape plc, claiming that the mining giant’s subsidiaries knowingly exposed thousands of people — mainly black mineworkers — to the effects of asbestos in Limpopo and the Northern Cape.
Anglo American South Africa does not believe that it is in any way liable.
Anglo spokesperson Pranill Ramchander said the company will argue that “the claimants were employed by South African gold mining companies in which AASA had an interest of less than 25% … these companies were responsible for the health and safety of their employees and took reasonable steps to protect them”.
He said: “Anglo American is sympathetic towards those miners who have contracted silicosis and fully supports initiatives … to ensure that they are properly treated and provided with statutory compensation and that silicosis is ultimately eliminated altogether.”
Researchers Neil White and Anna Trapido estimated in the late 1990s that the entire South African mining industry would have to pay around R10-billion to compensate all its former mineworkers with respiratory diseases scattered around Southern Africa.
In its 2010 financial results, AASA’s parent company, Anglo American plc, said it had doubled its operating profit to $9.8-billion from the previous year.
The South African Chamber of Mines declined to comment on the implications of the case for the industry as a whole, saying that any speculation would be premature.
According to National Union of Mineworkers’ health and safety chair Peter Bailey the union believes that “if people have been harmed in the execution of their duties, then employers have a responsibility towards them”.
Bailey said that in 2005 the industry had identified ways to reduce dust levels underground and a review is scheduled this year. “There is much more vigilance in the workplace than there was 10, 15 years ago and technology has advanced greatly, but we will only be able to confidently say everything is hunky-dory after the review process.”
Mineworkers who contract respiratory diseases are compensatable under the Occupational Diseases in Mines and Works Act; the compensation is funded by the mining industry and administered by the compensation commissioner under the department of labour.
According to the Act former mineworkers are entitled to a free medical examination every two years. Should they be diagnosed with a “compensatable disease” — usually silicosis — they are entitled to a maximum one-off benefit of R47 160 and then a second one-off benefit up to a maximum of R105 012 when their condition deteriorates. These payments are based on the plaintiffs salaries.
But Meeran points out that the plaintiffs he represents earned half of the maximum compensatable wage, which means they are entitled to about R75 000 in total.
He said the amount of compensation available to ex-mineworkers needs to be much greater: “There’s no point appealing to corporates’ morality [to ensure their compliance with health and safety]; you have to appeal to their financial bottom line.”
Bailey said both the industry and the union agree “in principle” that compensation should be increased, but have not reached agreement on the details.
Ex-miners who yearn to breathe easier
The M&G visits the ex-mineworkers’ union in Mthatha and one of the ex-miners in Lusikisiki.
In a bumpy backstreet in Mthatha stands the offices of the ex-mineworkers’ union, founded in 1987.
There are seven stacks of dusty files in one corner, each the height of an adult, containing compensation applications and other paperwork for each of the union’s members in the Eastern Cape.
“About 18 000 members,” says Zanele Mbuyisa, a member of the ex-mineworkers’ legal team, who accompanied us from Johannesburg.
Nombulelo Matu corrects her gently: ’18 563” — each member is valued as an individual here — before adding apologetically: “We don’t have a filing cabinet.”
Matu is the union’s secretary. Although not an ex-mineworker, she has made their cause her own and works for free: “The Lord sees me and one day he is going to bless me for it.”
Over a two-litre bottle of Sprite served in polystyrene cups, Matu relates the union’s struggle to ensure that its members receive all their retirement benefits and can access government’s compensation system if they are sick.
On one wall a photograph of the union’s committee is pasted beneath the words: “‘For with God nothing shall be impossible.’ Luka 1:37.”
“I want to speak in Xhosa,” Matu says, “because when I speak about this thing there is an anger and pain in my heart and I just want to get it all out.”
The former mineworkers demonstrated once at the Union Buildings in Pretoria in 2006 and twice outside Parliament in Cape Town last year. On each occasion they were sent home with empty promises.
Hundreds of exasperated ex-mineworkers travelled 1 000km from Mthatha to Cape Town, where they first marched illegally to the National Assembly, then camped for two weeks in their buses and taxis at a zoo in the winelands awaiting police permission to march again.
While Matu is talking, the first of the 18 ex-mineworkers, who have been selected as test cases in a damages claim against Anglo American, arrives for his legal consultation with Mbuyisa.
Wilson Mafolwana is claiming R618 100 from Anglo American South Africa for future medical expenses as well as pain and suffering.
Anglo American has indicated that though it sympathises with miners who have contracted silicosis it will defend its actions against Mafolwana and the other claimants.
Although the taxi rank is just across the street Mafolwana is out of breath after climbing a single flight of stairs. His breath is hollow and rasping, like the sound of a child blowing up a party balloon.
In time the others arrive. They are broken-looking men with slow, shuffling walks.
“I guess I have a soft spot for them,” Mbuyisa says, “I mean, from birth they’ve had a tough life and now they’re sick because of it.”
With her lime-green fingernails and penchant for Dunhill Fine Cuts, Mbuyisa seems a world apart from her clients. But she’s worked on this case for seven years now, spending weeks at a time interviewing clients deep inside the country’s most remote rural areas.
After Mbuyisa has updated her clients about the progress of their case we get in the car with Mafolwana and make the long drive to Lusikisiki.
Set in a landscape of rolling hills, pastel-coloured houses and tarmac-friendly livestock, Lusikisiki is an idyllic town 30km north of Port St Johns. But its name reveals something of the true state of the province and many of its inhabitants. People like Mafolwana are sick. Really sick.
The Mafolwanas live a short way out of town, down a winding dirt road flanked by fields of tall green maize. The zinc roof of their modest home is held down by bricks, tyres and the odd wooden log.
Mafolwana introduces us to his wife of 37 years, Frances, and his two stocky sons, Zuko and Thembela.
Seeing them next to the shrunken figure of their father, one can imagine the then-Mafolwana — barrel-chested and oozing confidence — heading off to the mines for the first time in 1972.
Sixty-two-year-old Mafolwana is still handsome, with a firm jaw and a debonair moustache, but his brow is furrowed with worry.
With his wife at his side, Mafolwana tells us about life underground in the President Steyn gold mine and how it made him sick.
During his eight days’ training, Mafolwana was told to expect hot and dusty conditions underground. But nothing could prepare him for the first time: “I was very scared. The rocks above my head were cracking.”
Mafolwana had good reason to be afraid — a rock fall later broke his ankle and he walks with a slight limp.
He says he was told about ventilation masks during training, but was not given one underground, unless health inspectors came to the mine.
The dust was particularly severe near the rockfaces where drilling took place, but settled all over. “From the lift down to the waiting place there was dust; there was dust everywhere,” he says.
Life as a miner began with one of the dustiest jobs — shovelling rock. It was a job reserved for the black mineworkers: “The white miner would come and mark where the driller can drill, but then he would go away. He never did any shovelling.”
After two months Mafolwana was promoted to locomotive driver and later to winch driver. The work was still dusty, since it involved tipping large quantities of rock into the mine carts. He must have been good at his job because, within three years, he was appointed a team leader. “I liked my job,” Mafolwana says with a smile, “every time I was promoted I got a pay rise.”
Then in 1989 — 17 years after he first arrived at the mine — Mafolwana began to have trouble breathing.
He was sent to the Ernest Oppenheimer Hospital in Welkom where he was X-rayed and examined. “The doctor then left me to a clerk, who told me I had miner’s sickness, but didn’t explain what it was. I was told I’d be given treatment, but I continued working.”
With children to educate, Mafolwana had no choice.
He retired in 1994, when his shortness of breath had become noticeably worse. Now this proud man, accustomed to supporting his wife and children financially, found he could no longer help them with the simplest manual chores around the house, garden and maize field.
He was certified silicotic a few years later and given R44 000 in compensation. “Too little,” Mafolwana says: “I can’t even afford some- one to help my wife in the fields.
“I do regret going to the mine because I can’t do the things I used to, but I don’t regret it because I needed the money.”
Frances Mafolwana says nothing, but reaches over to rub her husband’s chest gently with one hand.
Like most silicosis sufferers Mafolwana was eventually diagnosed with tuberculosis.
He has finished his treatment, but says something still isn’t right: “My chest still feels tight, especially in the mornings.”
Luckily he hasn’t passed TB on to his family. “If they don’t have it by now, then I don’t think they will.”
In the thin light of dawn I wake to the sound of Mafolwana padding about the house, breathing hoarsely, as he will do every morning for the rest of his life.
This article was produced by amaBhungane, investigators of the M&G Centre for Investigative Journalism, a nonprofit initiative to enhance capacity for investigative journalism in the public interest. www.amabhungane.co.za.