David versus Goliath battle over silicosis
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Johannesburg - As he toiled deep underground, Bongani Nkala had little chance of escaping the dangerous dust. It coated his face, his hair and his clothes like a deadly shroud. Sometimes he could taste it in his mouth.
The worst was when Nkala, a gold miner at Harmony, started his shift. He would breathe in the dust constantly as he expertly navigated his way through the 8km of stifling tunnels carved into the earth, to get to his workspace.
There was no ventilation. “I was never provided with any respiratory equipment. I inhaled all the dust I was exposed to. This exposure happened from working with and near activities such as drilling, blasting and crushing of ore and rock,” he recalls in an affidavit.
“Blasting created a lot of dust and much of it remained in the workspace, even after the walls were sprayed with water (to control the dust levels) as we could still see it, taste it and smell it… When the walls dried, the dust levels would rise again.”
Unknowingly, in the decade he had spent working for Harmony, the noxious silica dust entered his lungs – causing silicosis – a debilitating and incurable lung disease that is now slowly killing him.
In 1997, when he left the mine at 52, he was diagnosed with tuberculosis and pneumoconiosis during his exit medical examination. It was only in 2012 that he discovered he had developed silicosis at Harmony.
Today, Nkala, who lives in Mthatha in the Eastern Cape, can’t even walk up a small flight of stairs. When he does, he is seized by “sharp pains” in his lungs. Exhausted, he has to take frequent breaks while attempting to walk, and this makes performing the most menial tasks almost impossible.
“I have to be careful not to overexert myself because there is much work that needs to be done and I need to have the energy to do it.”
But what the former gold miner worries most about is how he will look after his wife, four children and two grandchildren.
As the first claimant in a historic case, Nkala is hoping to gain justice from leading mining companies for “allegedly knowingly harming” workers who, from 1965, contracted fatal lung diseases because of their exposure to silica dust.
In Bongani Nkala versus Harmony Gold Mining Company Limited & Others, he is one of 69 former miners suing the 32 companies spanning the gold mining industry.
Theirs is an epic David and Goliath battle. The miners’ legal teams – comprising Richard Spoor Attorneys, Abrahams Kiewitz Inc and the Legal Resources Centre as well as two US firms – are armed with 5 000 pages of court documents, including medical reports and miner’s testimonies. They are up against seven well-muscled legal teams representing the mining firms.
But this is why Georgina Jephson, a lawyer with Richard Spoor Attorneys, who occupies a small, sparse office in Joburg, became a lawyer after all: to help the most vulnerable seek justice.
She has waded through too many cases like Nkala’s; poor, black rural men, aged 55 to 60, who got sick underground, were sent home to die, and were rarely compensated for the illnesses they contracted underground.
“Ours is a significant case,” she says. “It’s a lot of pressure securing justice for these men in this; the biggest class action of its kind in South Africa.”
Spoor is a veritable thorn in the side of goldmining companies because of his “unwavering commitment” to holding them accountable for their alleged ill-treatment of miners. He and his team have spent more than four years on this case, which has taken them to the remotest reaches of southern Africa, to interview ailing claimants who live a fragile existence in dire poverty. Many of these sufferers have such a poor level of education that had to use their thumbprints to sign their affidavits.
On October 12, after a four year wait, the South Gauteng High Court is finally set to hear arguments regarding the certification of the class, which is the first step in this action.
Their case has the potential to achieve justice for as many as 200 000 former goldmine workers “who have never before had a voice” because they are too impoverished and sick to access justice.
For many sufferers, time is running out. In their court papers, the lawyers contend that the rate at which former gold miners are dying is alarming. The lawyers say that permitting a class action will streamline the judicial process, thus allowing members of the class a speedier adjudication of their claims.
Says Jephson, “One of the main arguments against the class action from the industry’s side is that the case is too big, too cumbersome, and unmanageable, and that it will take years to finalise. But the class action mechanism is the most appropriate way to resolve this issue.
“The likelihood is small of your average ex-miner finding out that (a) he has silicosis, (b) realising he has a claim against the company he worked for and (c) finding a lawyer with the expertise to prosecute his case.
“We know that between 22 and 36 percent of former gold workers develop silicosis, but no studies have been undertaken of where they are now, how many are alive, what age they are and how sick they are.”
The lawyers are representing two classes: current and former gold mineworkers with the fatal disease, including the families of those who have died; and current and former gold mineworkers who have contracted pulmonary tuberculosis, including families of those who’ve perished.
In March 2011, a similar landmark case paved the way for this case when the Constitutional Court ruled that Thembekile Mankayi, a former mineworker, could seek compensation from AngloGold Ashanti after he contracted silicosis.
Mankayi died a week before the unanimous judgment – and his wife has not received a cent.
The claimants’ lawyers say that despite the deaths of and serious injury to thousands of mineworkers over the decades in “consequence of their having been exposed to harmful quantities of crystalline silica dust”, no inquest or accident inquiry has been held.
Instead, the mining industry has “enjoyed almost complete immunity” and has not been held accountable. “The respondents have been aware that significant numbers of the gold mineworkers employed on their mines were exposed to harmful quantities of crystalline silica dust.”
The lawyers contend that the dust monitoring, dust prevention and dust protection methods on the mines were “inadequate or ineffective”.
The industry is playing its part, says Alan Fine, who speaks on behalf of eight large gold producers, including Anglo American SA, Harmony, Gold Fields and AngloGold Ashanti.
Since last year, they have ploughed more than R5 million into addressing the backlog of compensation claims, with the Department of Health.
Fine explains that there are moves afoot to improve how mineworkers are compensated under the law, adding that miners employed in the industry since 2008 shouldn’t be contracting silicosis because of the improved safeguards that have been put in place.
“The companies recognise that occupational lung diseases, and silicosis in particular, are a challenge. They are doing a great deal, as technical knowledge improves, to reduce the incidence of dust underground.”
Companies are engaged in discussions with the claimants’ lawyers “with a view to finding a settlement” to the legal action.
“We want it to be fair to the claimants and sustainable for the industry. Companies don’t particularly like having this claim hanging over them. It’s costly to defend, and for the claimants, because of the complexities, a case like this could carry on for 15 to 20 years.”
In a 2011 paper on occupational lung disease in the mining industry, researchers Jill Murray, Tony Davies and David Rees concluded that miners “face an epidemic” of occupational lung disease.
“The proportion of black gold miners found to have silicosis at autopsy increased from 3 percent in 1975 to 32 percent in 2007. Key studies on silicosis prevalence in gold miners show substantial disease burdens into the late 2000s, with no evidence that interventions have reduced these to acceptable levels.”
Biological and social factors combine to create a “perfect storm” for the interaction of silicosis, TB and HIV. The migrant labour system has weakened incentives to control dust and diseases by externalising the costs of disease, “moving them away from the gold mining industry to communities and the state”.
That’s why the Treatment Action Campaign and Sonke Gender Justice have successfully joined the case as friends of the court, despite “aggressive” opposition by some of the 32 mining firms. Their input will centre on the “wider social impact of how gold mining companies have endangered workers, fuelled epidemics and impoverished communities” over the past 50 years.
Attorney John Stevens, of Section27, which represents the two organisations, says: “This litigation affects hundreds of thousands.
“It could be one of the most important labour and health issues of our time.”
What the mines say
Unimaginably cumbersome. Costly. Time-consuming. Inconvenient. That’s how Harmony gold mine describes the class-action lawsuit against mining companies for lung diseases they allegedly “knowingly” caused, in its arguments about why the case should not be certified by the South Gauteng High Court.
But Harmony contends that such a class action “in respect of tens or even hundreds of thousands of potential claims, against more than 30 gold mining companies, pertaining to countless unique mines, shafts or sections and spanning decades of mining operations” is “utterly unworkable”.
“A person may contract silicosis after prolonged exposure to legally compliant levels of silica dust; just as he or she may contract tuberculosis without any exposure to such dust. This means that one cannot infer from the existence of either disease that a mineworker was exposed to non-compliant levels of silica dust. Furthermore, since many mineworkers will have worked in different mines, shafts and/or sections – some compliant, others not – the mere incidence of disease sheds no light on which operations were or were not legally adherent.”
African Rainbow Minerals says: “The scale of the classes… is enormous and will give rise to litigation that will… last for a number of years.”
Gold Fields says accusations that firms sought to escape liability for the “history of neglect” of mineworkers are a generic attack. “Respondents like Gold Fields are fully transformed corporate citizens with a strong commitment to sustainable mining.”