Court case could force gold industry to pay out miners’ daughters and wives

COMMENT

When Nobomi Dlamini’s husband, Thamsanqa, returned to his rural Eastern Cape home after 32 years on Johannesburg’s mines, she thought it would be one of the happiest moments of her life.

She imagined Thamsanqa would finally be able to spend time with his family.

But Thamsanqa’s homecoming in 2006 signalled the beginning of the most difficult period of her life.

Nobomi’s day starts at 4am when Thamsanqa wakes up. She prepares warm water for him — drinking it will help his chest open up and allow him to breathe normally. He then has a bath and they return to bed.


“We are lucky that there is electricity. I put everything next to the bed including green apples. He likes them very much,” she says.

Nobomi will wake up again at 7am to prepare porridge so that her husband can take his medication. She was told that the pills were dangerous when consumed without food. “We force him to take the porridge with [butter] because we want the pills to work well. We give him milk as well. He doesn’t want to take long life milk so we boil it to reduce the smell.”

She looks after her husband all day. She cleans and washes their clothes, makes his food, bathes him and tends to his every need.

On Sunday, Nobomi goes to church. If Thamsanqa is well enough, he will attend a funeral in the village to keep up appearances. Nobomi remains with him at all times. “You see, I do all of these efforts. I do it for him to be better, not to wait for his death.”

Nobomi knew something was wrong in 2006, when Thamsanqa came home to attend his brother’s funeral. “When I realised he is not well I took him to the clinic in our village,” she says. “He was having a runny stomach and chest problems. When he coughed, there was blood in his sputum. The clinic transferred him to the clinic in Butterworth. He was diagnosed with silicosis and HIV.”

Nobomi did not allow her husband to return to the mine.

Starting in the 1880s when gold was first discovered, the mining houses colluded with colonial governments to put in place a range of taxes and legislation. These forced black men to leave their small holdings to work in the mines, to afford the newly imposed colonial tax.

Black women and girls were required by law to remain in rural areas where they carried out the work of the men and caring for them when they returned home, often desperately ill with pulmonary disease caused by the mining houses prioritisation of profit over protecting the health of mineworkers. In rural areas across Southern Africa women like Nobomi were left to provide care and a measure of dignity to men slowly dying of suffocation caused by silicosis.

In May this year, the Johannesburg High Court in Nkala and Others vs Harmony Gold Mining Company Limited and Others 2016 (5) SA 240 (GJ) granted a historic ruling in a class action lawsuit, giving hope to thousands of women — if the mining houses own up to their obligations.

Sixty-nine applicants sought certification of a class action to hold South Africa’s gold mining industry accountable. They did so on behalf of all miners who had contracted silicosis and tuberculosis as a result of their exposure to silica dust, and of the families of all miners who have died of these diseases.

The miners were represented by Richard Spoor Attorneys, Abrahams Kiewitz Inc and the Legal Resources Centre. Sonke Gender Justice, alongside the Treatment Action Campaign (TAC), represented by the social justice organisation Section27, sought to be admitted as friends of the court.

Sonke and the TAC submitted evidence specifically on the gendered effect of the mining-related lung diseases, including the unpaid care-giving provided by women and children and the ripple effects of having to dedicate time, money and personal wellbeing to provide this care.

The high court developed existing common law to allow for transmissibility of general damages, such as pain and suffering, to the widows and dependents of those miners who died in the early stages of litigation. Prior to this ruling, if plaintiffs died before pleadings had closed, their claims would expire and the family members would not be eligible for compensation.

The court ruled in favour of the friends of the court’s argument, stating that “this rule of nontransmissibility of general damages … had … a strong gender bias in its consequence … Mineworkers come from rural areas [labour-providing areas] where they are dependent largely upon home-based care to assist them in coping with their illnesses. Such care is ordinarily provided by their wives and daughters. The care-work is demanding and includes efforts such as carrying, lifting and bathing the mineworkers, monitoring their medication and staying up at night to attend to their needs.”

The court found that the common law was not in line with the constitutional values and principles.

The ruling sets an important precedent which, in this case, affirms women’s rights and the need to remedy the gendered harms imposed by the industry. The court recognised that compensation could ease the burden on women and girls caring for ill miners and could indirectly compensate them for the unpaid care they’ve already given. Widows, daughters and other dependents of mineworkers now stand to benefit from this progressive ruling.

The mining industry applied to appeal the high court ruling and challenged the certification of the class action and the ruling on transmissibility of damages to dependents of mineworkers. In September, the high court rejected the appeal on the class action certification. It did, however, allow the appeal on transmissibility. The mining companies have since successfully petitioned the Supreme Court of Appeal on both the certification of the class action and the development of the common law.

While the legal teams prepare for the proceedings at the Supreme Court of Appeal, which is scheduled for mid-2017, Nobomi will continue to care for her husband without financial assistance from the mines.

“Someone once said to me, we will get the money when Jesus Christ returns. We hope God will carry us forward,” she says. “We hope justice will be served before then.”

Thabang Pooe is a policy, development and advocacy fellow at Sonke Gender Justice. She was awarded the 2015-2016 Sonke-University of California, Los Angeles health and human rights fellowship and holds a master of law in public interest law and policy. Dean Peacock is cofounder and executive director at Sonke and an honorary senior lecturer at the University of Cape Town’s school of public health.

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