Long wait for redress for SA’s ailing miners
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Jan Verster’s clothes hang off his bony frame as he walks slowly to his bakkie to fetch his oxygen.
It’s only around 100m away but when he returns, the 65-year-old former mineworker is bone-tired. He collapses in a plastic chair set out in the neat garden of Dr Rhett Kahn’s medical practice in Welkom and takes deep, heavy breaths.
“Jis, I’m bad you hear,” says Verster, haltingly in Afrikaans. “I must do everything on my time - slowly. I can do nothing, go nowhere without my oxygen.”
Decades spent inhaling dangerous silica dust on gold mines has left Verster with second-degree silicosis, an incurable, progressive lung disease. A former smoker, he also suffers from heart failure and hypertension.
He last worked as a vamper and stoper, both “high-dust jobs” at Sibanye-Stillwater’s Beatrix mine. After his discharge, despite suffering from chronic obstructive pulmonary disease, he was not submitted for compensation under the Occupational Disease in Mines and Works Act (ODMWA).
While silicosis and tuberculosis (TB) are endemic occupational diseases on SA’s gold mines, few workers have been timeously compensated for their devastating illnesses, explains Kahn.
The struggle to access compensation, through the Medical Bureau for Occupational Diseases (MBOD), plagued by backlogs, can take years. Many ailing workers die before they ever receive a cent.
Over the years, Kahn has taken the battle against undue delays processing claims to the public protector. “Our names are swear words at the MBOD,” remarks his wife, Janet.
Under ODMWA, too, mines are responsible to pay for treatment for occupational diseases contracted on their premises. “But no one really knows how the system works,” explains Kahn. “The sick mineworkers are supposed to approach the mine but it’s really a hit-and-miss affair whether they agree to pay.”
With the Kahn family’s help, Verster has successfully fought the mine to foot the bill. “The mines must pay for what they did to us,” he says, coughing hoarsely.
In the midday sun, mineworker Fole Zakari, who is from Lesotho, tells how he was diagnosed with silicosis in 1997. “The mine told me I was no longer fit to work and told me to go. I got R23000 in 2001.”
Since then, he has barely survived on a government disability grant. “I can’t breathe. Sometimes when I go to sleep I wonder if it will be for the last time.”
In July, a full bench of the South Gauteng High Court in Johannesburg approved a historic R5billion settlement agreement in the landmark silicosis and TB class action lawsuit.
The settlement is between the Occupational Lung Disease (OLD) Working Group - African Rainbow Minerals, Anglo American SA, AngloGold Ashanti, Gold Fields, Harmony and Sibanye Stillwater - settlement classes’ representatives and their attorneys Richard Spoor Inc, Abrahams Kiewitz Inc and the Legal Resources Centre.
It provides meaningful compensation - between R70000 and R500000 - for thousands of eligible workers and their beneficiaries suffering from silicosis and/or TB who worked in gold mines owned by the six companies from March 12 1965 to date. Compensation will be administered by the Tshiamiso Trust, which will be set up early next year. “I’m happy to know at least I’ll get something to take care of my family,” says Zakari.
Verster, too, is hopeful. “The people mustn’t stop fighting,” he says.
Since 1992, Kahn, an occupational and general medical practitioner, together with Janet, has treated thousands of sick, impoverished gold mine workers from Mozambique, Lesotho, Eastern Cape, North West and Limpopo, suffering from silicosis and TB. In the 1980s, while working as a mine medical officer for Harmony in Virginia, Kahn couldn’t believe how many young mineworkers lay in its hospital beds, stricken with TB.
“One year, there was a big retrenchment and they lined up the TB people (for retrenchment),” recalls Janet. “Rhett wrote to the mine manager, complaining this was unfair labour practice and they reinstated the whole lot.”
But when the next retrenchment came along, Kahn was targeted. He set up the clinic, which has become a sanctuary of sorts for sickly workers. Janet helps them navigate the complex labyrinth of medical paperwork. “Sometimes it takes two days to get a reply (from the MBOD) so Janet has resorted to feeding the workers,” he says.
“The mine medical officers should be doing what we do, but most are afraid of the consequences in terms of their future employment and do not stand up for the workers,” Janet adds. “Both Rhett and I are fighters and I think often tilt at windmills. Each person I can help to access their compensation, albeit a little amount, it may send a kid to school, help start a spaza store; buy a sheep skin to avoid bedsores.”
These little things make a difference in the lives of ordinary, vulnerable people. “It would be great if the laws could be changed and there now seems to be a groundswell in that. This class action has focused the minds; let’s hope that focus turns to action.”
While the Kahn family are pleased with the settlement agreement, deep problems in the system remain. “Dust levels haven’t come down and the law hasn’t changed,” says Kahn, firmly.
ODMWA sets a compensation ceiling much lower than the Compensation for Occupational Injuries Diseases Act (COIDA) , which applies to every other industry, providing poor benefits for occupational lung diseases.
“(The agreement) hasn’t altered ODMWA’s inferior benefits paid to mineworkers compared to COIDA, which provides for lifetime
compensation for occupational injury or disease, which are paid to ex non-mine workers,” Kahn points out.
“Basically, the mines are getting away with paying less compensation because of some peculiar historical law instead of joining together and paying everyone the same amount. They’re getting off lightly.
“If you get second-stage silicosis on a mine you get R140000 - on a foundry you get 75% of your usual salary for the rest of your life, which could be 15 years.”
Too little, too, is being done to reduce high dust levels. “The mines cook their levels,” he says. To illustrate this, Kahn shows a new study by Wits University and the National Institute for Occupational Health on silicosis and pulmonary TB (PTB) in deceased female SA miners.
It found proportions of silicosis and PTB were comparable in women and men, suggesting similar exposures. “Silicosis detection after short employment indicates inadequate dust control, particularly as most entered the industry after implementation of interventions to control silica dust in 2003,” the authors wrote.
Alan Fine, OLD spokesperson, says mines manage respirable crystalline silica at source through wet drilling and engineering controls such as ventilation, dust allaying, filtration and centralised blasting to prevent peak exposures. Employees remaining at risk of exposure in excess of occupational exposure limits are provided with personal protective equipment.
“Mines have also been constantly improving their standard of dust monitoring, sampling frequencies and dust analysis methods, and this has resulted in the incidence of silicosis declining over time.”
Given the length of time it takes to contract silicosis, dust management procedures put in place now are only likely to show results in terms of fewer cases of silicosis in the next 20 years, Fine says, adding how the number of silicosis diagnoses has fallen from 1537 in 2006 to 635 in 2016.
Through the Jock McCulloch Mining Fund, the Kahns now plan to fight for miners with first stage silicosis and normal lung function “who can work and want to work” by mounting a legal challenge in the Labour Court.
“In terms of the new rules, you can’t work anymore and since the class action, the mines have been getting rid of anyone at risk for developing silicosis and TB,” says Kahn.
Are they waiting for me to die or what?
FROM a neat folder, former mineworker Joseph Malefetsane Shata pulls out the letter he received from AngloGold terminating his services for medical incapacity. His last day of work was on May 15, 2014.
His medical reports detail how he suffers from hypertension, diabetes and occupational underground mining-related silicosis.
After nearly 40 years working underground, he has “chronic shortness of breath, chronic coughing and recurrent chest pains”.
“I struggle to breathe. Having this disease has affected my life. I haven’t been compensated by the mines yet. Are they waiting for me to die or what? That is my question.”
Once he receives his compensation under the historic settlement agreement, Shata will save it for his family’s future.
“I want to make sure my wife and children are looked after.”