Silicosis sufferers in South Africa are unlikely to obtain genuine justice

There is likely to be a settlement of the silicosis and tuberculosis (TB) class action litigation, which was initiated in 2012 by lawyers acting on behalf of Southern African ex-gold mineworkers. Yet it remains to be seen if the settlement is truly comprehensive and fair. Action for Southern Africa (ACTSA) took up the campaign for justice for mineworkers with silicosis and TB in 2011 following discussions with the British law firm Leigh Day and the South African National Union of Mineworkers (NUM), the union to whom many of the mineworkers belonged. From our experience, the six main mining companies have regularly sought to frustrate efforts to ensure that their former employees receive what they deserve.

At Anglo American’s AGM in April last year, ACTSA, supported by Unite, launched the campaign briefing Coughing Up. The paper details the gold mining industry’s active collaboration with the apartheid regime. It also discusses the scale of the problem.

There are tens, possibly hundreds, of thousands of ex-gold mineworkers across Southern Africa with silicosis [a long-term lung disease caused by inhaling large amounts of crystalline silica dust]. No one knows the accurate number because the mining companies failed in their duty to test for it. Just as they failed to protect the mineworkers from the effects of silica dust in the first place.

The mining companies recruited black Southern Africans to be cheap, expendable labour. For this they were paid a fraction compared to their white counterparts and housed in shockingly unhygienic hostels. When too sick to work these mineworkers were simply sent home to die.

In March 2016, a settlement was reached on behalf of 4,365 ex-mineworkers in relation to legal actions against Anglo American and AngloGold Ashanti. ACTSA joined NUM in welcoming this statement but together we stressed that it only applies to a very small proportion of all Southern African gold mineworkers who developed silicosis and TB. Since then, ACTSA has called for any settlement of the class action – which in theory would cover all affected ex-mineworkers – to be at least as good as the terms of the March 2016 settlement.

In October 2017, the six main mining companies announced the amounts that they had individually set aside in relation to a possible settlement of the class action. At the time, ACTSA calculated that these amounts totalled approximately $371.2 million (5.1 billion rand). We argued that this figure was too low when weighed against the estimates of the numbers of ex-mineworkers with silicosis and TB. Another reason that this figure is too low is because it is inclusive of all other costs (under the March 2016 settlement costs relating to providing medical examinations, distributing funds and supporting payment of statutory compensation to those who qualify were treated separately and are borne by the mining companies).

Now the mining companies are presenting the larger headline figure of around nine billion rand. However, this is misleading, as the ‘additional’ money is actually in a statutory compensation fund established through the Occupational Diseases in Mines and Works Act and administered by Government of South Africa’s Department of Health. This should not be conflated with any settlement in relation to the class action. Of course, synergies between the statutory fund and any settlement fund are necessary, but this is just common sense.

On top of this, AngloGold Ashanti is already bleating about the impact of the amount that it has set aside in relation to a possible settlement of the class action. In reality, the amounts that it and the other mining companies have set aside are small compared to the size of their businesses and insignificant compared to the pain and suffering endured by the ex-mineworkers. Moreover, this issue should have been addressed long ago. Instead of taking responsibility for what they did to their former employees, the mining companies have spent many years fighting them through the courts.

As a result, many ex-mineworkers have already died without ever receiving any compensation. What of the many women who cared for sick mineworkers when they returned home for good, unable to work any longer? Relatives of deceased ex-mineworkers with silicosis and TB were included in the March 2016 settlement. Yet it is unclear whether they will be eligible to receive decent compensation under any settlement of the class action. It would be nothing short of scandalous if they do not.

We wait to see the details of any final settlement. It must give ex-mineworkers with silicosis and TB, as well as the relatives of deceased ex-mineworkers, the medical care, financial compensation and support that they deserve. If it does not, then ACTSA will continue to stand with NUM and the broader IndustriALL family, and ensure that the world knows the truth.