Justice came too late: Thembekile Mankayi died six days before a court awarded him compensation for falling ill with lung disease
COMMENT
In 2011, the Constitutional Court made a landmark ruling in Mankayi vs Anglogold Ashanti, determining that former mineworkers who suffer compensable diseases in terms of the Occupational Diseases in Mines and Works Act (Odimwa) have the right to institute damages claims against their former employers.
Thembekile Mankayi alleged AngloGold exposed him to harmful dust while he was an underground worker from 1979 to 1995, which led him to develop tuberculosis and chronic obstructed airways, diseases that left him unable to work. He received R16 320 in damages under the Act, less than a year’s salary.
Mankayi never saw justice – he died from lung disease six days before judgment was delivered. But his fight paved the way for tens of thousands of mineworkers with similar diseases who now have the opportunity to hold the industry to account.
In hearings scheduled for October in the South Gauteng high court, mineworkers are suing 32 gold mining companies – the entire South African gold mining industry – for their right to compensation for silicosis and TB contracted in mines. This unprecedented class action lawsuit is being brought by 56 current and former mineworkers and surviving dependents of mineworkers who died from these diseases: class representatives for tens of thousands of their counterparts in this lawsuit.
Civil society support
The Legal Resources Centre, Richard Spoor Attorneys and Abrahams Kiewitz Attorneys are representing the 56 applicants. The HIV lobby group, the Treatment Action Campaign (TAC), and gender activist group Sonke Gender Justice, represented by Section27, have applied to join the case as amici curiae to put the evidence described in this article before the court. The hearing to admit the TAC and Sonke will be heard during the week of April 13.
The South African gold mining industry has long been criticised for its poor treatment of workers and dangerous working conditions. Dust in the mines literally kills mineworkers: silicosis, a degenerative lung disease caused by inhaling silica dust in the mines, and TB, easily transmitted in poorly ventilated mine shafts, are endemic occupational diseases. Professor Jonny Myers of the University of Cape Town’s Centre for Occupational and Health Research says gold mines “convert lung structure and lung function into profit”.
For decades, these gold mining companies have been under a number of legal duties to prevent and treat lung diseases such as silicosis and TB. The industry has failed to comply with its duties to improve the conditions that drive these epidemics among workers. Worse, the industry has fought against stricter regulations to protect workers’ health. Consequently, mineworkers in South Africa are exposed to levels of silica dust four times higher than is permitted in Europe or North America. Moreover, the mining industry’s actions drive the TB epidemic at large and burden South Africa’s public health system – a cost to us all.
Displaced responsibility
The gold mining industry has in effect displaced its responsibility for taking care of sick miners on to women in poverty-stricken areas. When mineworkers return home sick with silicosis and TB, women care for them, at great personal expense. All too often the mothers, sisters, wives and partners of sick mineworkers have to withdraw from work, or leave school, to care for those with mine-induced chronic, often fatal, respiratory illnesses. Women with precarious employment and girls with limited education are more vulnerable to HIV and gender-based violence, hindering their right to equality.
Mineworkers experience high levels of HIV and often comorbidity of HIV, silicosis and TB. Even without HIV, TB and silicosis, comorbidity is common. Providing care for these patients is full-time work.
Since the discovery of gold in South Africa, the mining industry has depended on migrant labour as a way to channel great wealth to a few while maintaining the majority in poverty. This system is inseparable from our country’s racist legacy. The apartheid state and the Chamber of Mines ensured the mines enjoyed a cheap labour force by controlling hiring, imposing a colour bar and enacting the Natives Land Act and the pass laws. Gold mining companies raked in unspeakable wealth, but mineworkers, their families and communities were left devastated.
This devastation is acute in communities in Lesotho, Mozambique and the former Transkei that provide mining labour. The former homeland, the largest provider of these mines’ labour, experiences the worst levels of deprivation, whether measured by rates of employment, education, living conditions or material need. Research by the Southern African Social Policy Research Institute found, as of 2011, 69% of households in the former Transkei had no refrigerator, telephone, TV or radio, and 58.4% of people between 18 and 64 had no secondary schooling.
Exploitation
A 2009 study by the Health Systems Trust (HST) puts a fine point on deprivation and illness caused by the exploitation of gold mineworkers in the former Transkei. Almost all the former workers in the study had symptoms of respiratory illness. TB was diagnosed in a quarter of them at the mines, and half of them after leaving the mines. None was formally employed; 92% said they went without food or experienced hunger every month.
Almost none of the gold mine-workers who develop silicosis or TB has been compensated. Odimwa’s compensation ceiling is much lower than that available under the Compensation for Occupational Injuries and Diseases Act, which applies to every other industry in South Africa. The HST’s research found 99% of the former mineworkers interviewed had no working knowledge of Odimwa.
A study by Deloitte found less than 1.5% of claims of people certified as eligible for compensation under the Act received full compensation. These difficulties are compounded for foreign migrant workers who rarely know their social security status in South Africa and struggle to gain access to benefits from their country of origin, where they must return after their employment ends.
This historic class action lawsuit presents the best opportunity to date to end the impunity with which profit-obsessed gold mining companies in South Africa exploit and discard workers and put the wider community at risk. It has the potential to address the dangers faced by mineworkers and the minimal compensation offered through Odimwa for workers, their families, dependents and communities, all of whom suffer because of the unjust system.
Dean Peacock is executive director at Sonke Gender Justice. Anele Yawa is the general secretary of the TAC. Emily Nagisa Keehn is a policy consultant at Sonke Gender Justice.