Last week, former gold-miners and relatives of deceased miners reached a landmark settlement of their long-running legal battle against Anglo American SA and AngloGold Ashanti.
The settlement is for the 4 365 claimants who sued the mines for the dust-related lung diseases silicosis and silico-tuberculosis, which they claimed were contracted from hazardous conditions in the mines.
Beyond benefiting these claimants, the settlement should pave the way for an industrywide compensation scheme for all gold-miners with silicosis.
In August 2004, having concluded the asbestos-miners’ litigation against Cape plc, we began the silicosis litigation for South African gold-miners. The goal was the establishment of an industrywide gold-miners’ silicosis compensation scheme. The settlement last week, after 12 years’ litigation, is a major step towards that goal. Despite denials of liability, the settlement represents tacit recognition by the companies of the futility of continued litigation.
The ongoing failure of the industry to ensure ex-miners are able to get access to medical services and obtain proper compensation resonates with attitudes of the past.
During apartheid, gold-mining was focused on production and profit and displayed flagrant disregard for miners’ health. Black miners undertook the dustiest jobs, unprotected by effective respirators.
The 1995 Leon Commission found dust levels on the mines had hardly improved in 50 years. Individuals with silicosis have a greatly increased risk of contracting tuberculosis, a disease endemic in rural areas and to which black miners with silicosis are vulnerable. Epidemic rates of silicosis and tuberculosis have been confirmed in black miners. The combination of silicosis and tuberculosis is serious and often fatal.
Despite knowing for decades of their predicament, the industry has until now failed to do anything to alleviate the suffering of ex-miners and their families. The industry avoided legal responsibility – it was too powerful and there were no means of access to justice for victims.
But now, the first large-scale settlement of silicosis litigation provides a model and the impetus for industrywide settlement by all gold-mining companies for all silicosis victims.
A trust established under the settlement has been named Q(h)ubeka, meaning “go forward” in isiXhosa, in honour of the thousands of claimants who struggled for decades without proper compensation from the mining companies. The trust is also named for Binyana Benson Qubeka, one of the case’s lead claimants, who worked as an underground gold-miner for 25 years and was diagnosed with silicosis in 1998.
The overall value of the settlement is more than R500-million, including R464-million in compensation, which will go toward ensuring access to additional statutory compensation, plus the costs of administering the trust and medical evaluations.
The Q(h)ubeka trustees, chaired by the director of the National Institute for Occupational Health, Sophia Kisting, are experts in occupational disease, financial administration and law.
The great bulk of the settlement, R464-million, will be paid into the Q(h)ubeka Trust for distribution between those of the 4 365 who meet the criteria for payment. To qualify for compensation, claimants will need to be diagnosed with silicosis and will need to have worked on Anglo American or AngloGold mines for at least two years.
The trust will arrange medical evaluations of the claimants to determine the existence and severity of silicosis. For many claimants, these medical evaluations will be their first opportunity to find out if they have silicosis. As with most former miners, the claimants live in impoverished regions of the Eastern Cape, Lesotho and the Free State. Their access to medical assessment, let alone medical care, is limited. The majority have therefore never been diagnosed and have never accessed the statutory compensation scheme under the Occupational Diseases in Mines and Works Act.
Payments will be based on a tariff system, reflecting the severity of disease and the claimant’s age. Relatives of deceased claimants who meet the criteria will be included. Because the overall amount of the settlement is fixed, the tariff level will depend on the number of claimants who qualify.
Based on an analysis of a random sample it is anticipated that about 60% of the group will qualify.
In addition to receiving compensation from the trust, claimants will be assisted in claiming statutory compensation under the Occupational Diseases in Mines and Works Act, which is administered by the state. It gives ex-miners a right to two-yearly medical examinations and to no-fault compensation if a specified occupational disease is diagnosed.
But the Act’s system is in a state of chaos: miners cannot access or benefit from medical examination facilities and those who are certified with a prescribed disease often have to wait years before they are paid. It is therefore critical that the settlement commits both the trust and Anglo American and Anglo Gold to ensuring timely payouts by the Act.
The involvement of the trust and the companies in this process should transform what is presently a theoretical, largely unfulfilled, right to occupational diseases in mines and works compensation into a reality.
The out-of-court settlement, reached within months of the scheduled trial, will significantly benefit the 4?365 claimants. Continuing the case would, at best, have postponed, possibly for years, compensation and the required medical evaluations for the claimants.
At worst, the trust processes to which the companies have agreed as part of the settlement might never have materialised following a court judgment. The average age of claimants is over 60. Their health and access to healthcare is poor. A significant proportion of them will have died uncompensated since the start of litigation in 2004, and more will continue to die.
Rejecting favourable terms of settlement in the hope of securing a court judgment would have been contrary to the claimants’ best interests. Also of significance is the settlement reached by London human rights law firm Leigh Day and Mbuyisa Neale attorneys in Johannesburg ensures that there will be no deduction for legal costs.
The claimants will receive their compensation in full. This contrasts with the position in other litigation where contingency fee agreements may result in victims having to give to their lawyers as much as 25% of their compensation plus expenses.
Continued evasion of the responsibility by the industry does not reflect the “sympathy for all miners who have contracted silicosis” expressed by Anglo American South Africa last week. Whether deliberate or not it is a fact that, as time goes on and affected, ageing miners die at an increasing rate, the compensation bill for the industry decreases.
It is immoral for companies claiming to be socially responsible to continue paying armies of “fat-cat lawyers” to defend the indefensible while former miners, on whose backs the industry amassed its fortune, languish on the scrap heap.
The half-a-billion-rand settlement last week by Anglo American and AngloGold brings with it enormous pressure on the mining houses to establish an industrywide settlement scheme along similar lines.
Richard Meeran and Shanta Martin are partners at London human rights law firm Leigh Day.