/ 4 March 2011

Judgment gives hope to miners’ families

The Constitutional Court, in a landmark judgment on Thursday, opened up space for miners suffering from compensatable diseases as a result of their work to seek common-law recourse from negligent mining companies.

In a unanimous decision written by Judge Sisi Khampepe the court found that miners could seek compensation in terms of the Compensation for Occupational Injuries and Diseases Act and were not just restricted to the Occupational Diseases in Mines and Works Act, which provides for less compensation.

Miners are now able to institute class- action suits against companies if it can be proved that they have been negligent in ensuring sufficient health safeguards. But the judgment came, tragically, a week too late for Thembekile Mankayi, the miner who first instituted a claim against former employers AngloGold Ashanti in the South Gauteng High Court in 2006.

Mankayi, who had worked underground from 1979 to 1995, contracted silicosis. He died last Friday. He received a payout of R16 320 when he was unable to continue working at the age of 37.

His niece, Zolisa Mankayi, said that “this is very good news that will bring some peace to the family”. Mankayi, who was married with 10 children, will be buried outside Mthatha on Sunday.

The judgment
The judgment may allow Mankayi’s family, many of whom are unemployed, to return to the South Gauteng High Court and institute his initial R2,6-million claim against AngloGold Ashanti.

Mankayi’s lawyer, Richard Spoor, said the judgment “opened the doors for miners to pursue class-action suits against negligent mining companies. It will also help ensure that mining companies pay more attention to health and safety issues at their mines in the future.”

Spoor said that miners had been “treated like pieces of machinery with a complete lack of accountability by the mine companies in regard to issues of health and diseases contracted while working. All this will change with this precedent-setting judgment.”

Khampepe found that the Supreme Court of Appeal “had erred in concluding” the two Acts were part of the same compensatory structure, saying the difference between them “was quite apparent”.

The court also found to be “without merit” AngloGold Ashanti’s contention that section 35 (1) of Coida excluded mineworkers from common-law claims. AngloGold spokesperson Alan Fine said the company was “still studying the details of the judgment. Our initial impression is that should the Executor of Mr Mankayi’s estate wish to pursue his claim… AngloGold Ashanti will defend the case on its merits.

Should other individuals lodge similar claims, these too would ultimately be defended by the Company and judged on their merits.”