/ 25 January 2013

Class action for silicosis payout tarnishes gold industry

Gold miners are at high risk of contracting the respiratory disease silicosis as a result of inhaling microscopic particles of silica
Gold miners are at high risk of contracting the respiratory disease silicosis as a result of inhaling microscopic particles of silica

Human rights lawyers have accused Anglo American South Africa of knowingly and negligently neglecting to implement measures to protect gold miners from serious lung diseases, particularly silicosis and silico-tuberculosis, and have filed massive lawsuits against them.

Should these various court cases and mass actions succeed, it could force the gold mining industry to pay billions to ailing miners. The bulk of the miners contracted the diseases between 1970 and 2000 and there is evidence that shows that Anglo American South Africa allowed miners to continue working up to 15 years after they were diagnosed with silicosis.

Despite these looming cases, health and legal experts believe that due to the conditions underground, a number of mineworkers are still at risk of contracting silicosis.

In May, British law firm Leigh Day and Co, personal injury, employment and human rights solicitors, will battle it out with Anglo American South Africa in the London High Court on behalf of 3 500 men claiming damages from the mining giant. All of them are Southern African gold miners suffering from silicosis. Anglo American South Africa has denied all liability.

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Leigh Day has launched the case in London because that is where the Anglo American Group's headquarters are now situated.

Anglo American South Africa spokesperson Pranill Ramchander said the company did not believe it was liable for the miners' silicosis claims in any way.

"We maintain that the gold mining companies that owned and operated the mines and that employed these mine workers were responsible for the health and safety of their employees and took reasonable steps to protect them," was all that Ramchander said in response to a list of questions dealing with a range of accusations made against the company.

Silicosis is a potentially lethal and painful respiratory disease caused by airborne crystalline silica found in the same rock ore as gold. Silicosis weakens strong men, forcing them to take early retirement, barely capable of any physical exertion.

New claimants are continually joining Leigh Day's mass action, said Leigh Day attorney Richard Meeran. The final amount that Anglo American South Africa will have to pay should Leigh Day win will depend on the number of miners joining the claim, the average value per claim and how many miners ultimately win. Meeran estimated that the total value of the claims could be in the area of £1.6-billion.

"Although this amount is speculative, that type of figure does not seem at all unrealistic," he said.

However, many of the miners may never be able to claim. "All of the miners are still alive, but for those who die before the litigation reaches the stage of 'close of pleadings', pain and suffering damages will be lost unless Anglo agrees that they should be preserved," said Meeran.

Meeran said that thousands of silicotic miners had died uncompensated in recent decades. "Their claims for pain and suffering have been lost and cannot be claimed by their dependants," he said. "Over time, the gold mining industry's potential compensation bill becomes progressively smaller. It therefore suits the financial interests of the industry to continue to drag its heels."

He said the position under British law was that pain and suffering claims were transmitted to the dependants on death and that legislation to achieve the same result in South Africa appeared to be required urgently. Meeran said the mining industry's approach flew in the face of global campaigns advertising a commitment to corporate social responsibility.

Silicosis is an invisible disease. Microscopic particles of silica are released into the air during the gold mining process – particularly during blasting and drilling – and miners work in conditions where they are likely to inhale the invisible, odourless and highly toxic dust. Silicosis sufferers run a higher risk of contracting pulmonary tuberculosis and inhaling silica dust puts a miner at a higher risk of tuberculosis, regardless of whether or not silicosis has set in.

Externalisation of trauma
Just how many people have contracted the disease while working in gold mines is difficult, if not impossible, to determine, according to a number of experts in the field. "Often, miners become sick after they have been retired from mining for 10 to 15 years," said Meeran.

Many miners' illnesses go undiagnosed, because they are migrant workers from rural areas in the Eastern Cape, Mozambique, Lesotho and Botswana, said Tony Davies, professor emeritus at the University of Witwatersrand School of Public Health and former director of the South African National Institute for Occupational Health. Often miners live in poverty, with a lack of medical facilities to make accurate diagnoses. These miners are also often out of reach of legal help and are therefore unlikely to confront their former employers with civil claims.

"One of the things that has made South African mining so profitable is the externalisation of trauma and disease to people in labour sending areas," said Davies. "The cost of all of this falls on the community."

Meeran said that Leigh Day had filed the mass action claim in England for several reasons: damages awarded under British legislation are generally higher than in South Africa and the procedures to deal with mass action are better developed.

In addition, should Leigh Day win in Britain, Anglo American South Africa will have to settle Leigh Day's "success" fees – that is, the fees that are payable to lawyers acting on a "no-win, no-fee" basis. Under the South African no-win, no-fee system, claimants' lawyers' success fees are deductible from claimants' damages and can be up to 25% of the damages.

Leigh Day contends that Anglo American South Africa's central administration is in London, where the Anglo American group is now headquartered. On that basis, said Meeran, the English courts had jurisdiction. However, said Meeran, Anglo American South Africa was disputing this, arguing that its central administration is in Johannesburg, where board meetings take place to make operational decisions.

Since 2004, Leigh Day has also been assisting the Legal Resources Centre (LRC) in South Africa with 18 other claims from former mine workers affected by silicosis after working at the President Steyn Mine in Welkom in the Free State. The LRC is a non-profit organisation providing legal assistance to people who cannot afford it. The case has received funding from Legal Aid South Africa.

Historic ruling
Anglo American South Africa is alleged to have negligently controlled and advised its group of companies that operated the mine at the time that the claimants worked there, between the late 1960s and 1998. The precise sums claimed by each miner are still being calculated and will vary from one individual to another, said Meeran. He estimated that the total claimed by the 18 would be millions of rands. "It is anticipated that if successful, their claims will pave the way for a wider settlement for silicosis victims employed on Anglo South Africa mines," said Meeran.

Anglo American South Africa no longer owns shares in the mine: the company sold the last of its shares in the gold mining sector in 2009.

Thus far, four of the 18 miners have died. One of the plaintiffs died in November 2012.

In October this year, nine surviving miners, some of whose health is also very fragile, and one widow of a deceased miner will attend a final hearing of the case. This will be a public arbitration in Johannesburg before a panel of three retired judges, former chief justice Sandile Ngcobo and retired Supreme Court of Appeal judges Ian Farlam and Noel Hurt. Gold mines' headaches really started in March 2011 when Thembekile Mankayi was given the green light by the Constitutional Court to seek compensation from his former employer, AngloGold Ashanti.

Human rights lawyer Richard Spoor represented Mankayi, who died a week before the historic ruling – Spoor had fought the case through a number of courts.

Although the court did not rule on his R2.6-million claim, it ruled that mineworkers could now claim from their employers for damages caused by having contracted silicosis.

In December 2012 , Spoor filed an application for the certification of a class action suit brought on behalf of all gold miners with silicosis and the widows of gold-mine workers who had died of the disease. The miners had worked on gold mines since 1965. The respondents are 30 gold mining companies and their parent companies and include Anglo American South Africa, Harmony Gold, AngloGold Ashanti and Goldfields. Spoor's firm represents about 17 000 former mine workers in the class action.

"We are asking the court to recognise the applicants as the representatives of a class and to recognise my firm as the representative attorneys," said Spoor. Mankayi's widow is now one of the 30 representatives in the class action.

Spoor said that it was too early to determine the claim's value, since the claim amounts for individual miners varied and the size of the classes had not been determined.

"[Many] have already died and many gold mining companies have been deregistered and it may not be possible to find all the members of the class who are widely dispersed across the subcontinent."

But Spoor expects it to run into "billions of rands". He hopes that once the mines' liability is established through the class action, it will be possible to create a compensation scheme for the miners.

"Such a scheme would operate along the lines of the Asbestos Relief Trust, which was established in 2004 pursuant to litigation against the asbestos mining industry.

"A class action is a potential lifeline for the gold mining industry," said Spoor. "The alternative is thousands of individual claims." This could bankrupt the industry.

Spoor said the suggestion that paying compensation for silicosis would destroy the industry was without foundation.

Legal and factual issues
"You're talking about an industry with a market capitalisation of about R500-billion. To settle this issue is well within its means. It has ploughed much more money into black economic empowerment schemes over the past two decades than it would ever need to do to settle the silicosis issue."

Anglo American South Africa said: "We have the deepest sympathy for those miners who have contracted silicosis and we fully support the initiatives of the mining industry, labour and government to ensure that sufferers receive proper treatment and compensation."

AngloGold Ashanti spokesperson Alan Fine said the company had received and was reviewing Spoor's application. "The application raises a number of complex legal and factual issues, and AngloGold Ashanti plans to respond through the appropriate court procedures to defend the case on its merits," he said, pointing out that it made continual efforts to protect workers from silicosis.

"As a result of efforts to improve underground dust levels and reduce exposure, rates of silicosis at AngloGold Ashanti have shown a consistent and encouraging downward trend." Gold Fields spokesperson Sven Lunsche said that, given the highly sensitive legal issues involved, the company preferred not to comment.

Harmony Gold spokesperson Bobo Ndinisa referred the Mail & Guardian to the Chamber of Mines. The latter did not respond.

The mineral resources department also did not respond to requests for comment.

Heidi Swart is the Eugene Saldanha fellow in social justice reporting.