An activist prepares a powerful interactive photograph exhibition at the Central Methodist Church of 56 miners and families who were applicants in the silicosis certification hearing case taking place at the South Gauteng High Court in Johannesburg next door in April 2015. Shayne Robinson
Johannesburg - With a grimace, Nkayi William Sifanelo gestured to his back. “It’s hurting even now,” said the sickly former gold mineworker, explaining how the pain in his lungs moved to his upper body.

The 57-year-old was one of a group of 45 elderly former mineworkers from the SA Destitute Ex-Miner Forum who drove on Thursday from the Eastern Cape to witness the South Gauteng High Court in Johannesburg cements a historic settlement agreement for ex-gold workers, suffering from silicosis and tuberculosis.

A full bench of the court on Friday approved the R5billion settlement in the landmark, silicosis and tuberculosis class action suit, to compensate thousands of sickly former gold mineworkers.

The settlement agreement provides meaningful compensation - between R70000 and R500000 - to all eligible workers suffering from silicosis and/or tuberculosis who worked in mines owned by the six companies who form part of the settlement agreement from March 12, 1965 to date.

For Sifanelo, who suffers from silicosis, the realisation that his claim could be settled brought long-awaited relief. He said he had an unsuccessful operation in Randburg on his lungs in 2015. He worked as a winch operator at several mines, but in 2015, was sent home to Lusikisiki “with nothing” after being informed he had silicosis. “I am very happy. Many people have died for nothing,” he said, simply.

The six mining firms who are funding the settlement form the Occupational Lung Disease Working Group (OLD), which consists of African Rainbow Minerals Anglo American SA AngloGold Ashanti Gold Fields Harmony and Sibanye Stillwater. They joined forces with the claimants attorneys Richard Spoor Inc, Abrahams Kiewitz Inc and the Legal Resources Centre, to draw up the settlement in three years of extensive negotiations.

Judge Leonie Windell said all the parties had made an effort to ensure the settlement agreement was reasonable, adequate and fair. “The terms of the settlement agreement demonstrate that they succeeded in their efforts ... We accept as a starting point that the settlement agreement is not intended to, and could never make full redress for the loss and harm suffered by gold mineworkers, their families and communities over the last 100 years as a result of the epidemic of lung disease that afflicted them and the system of migrant labour and racial discrimination that sustained this epidemic”, Windell’s 70-page judgment read.

“It is therefore important to recognise that as with all negotiated settlements, the agreement represents a compromise between the parties and their competing interests. The class representatives are of the opinion that a class action settlement is the best outcome for the classes and the settling companies.”

She noted how a class action lawsuit might continue for at least another five but possibly even 10 or more years before it was resolved and many of the claimants were ill and elderly.

“During the last six years, 18 of the 56 class representatives ... have died. While we accept that litigating individual claims to conclusion is undoubtedly the best way to determine the value of each mineworkers claim, there are many drawbacks in this approach.”

The settlement agreement caters for four classes of claimants: those who contracted silicosis or were exposed to silica dust, the dependents of deceased miners with silicosis; those who contracted TB; and their dependents, if they have died.

Claims will be administered by the Tshiamiso Trust, which means “to correct” in Setswana, and has been set up specifically for the claimants. These would be received by the trust for 12 years from the date the trust became effective. It would operate for an additional period of one year to finalise any outstanding claims that were lodged with it during the preceding 12 years.

“Dr Deborah Budlender, an independent policy researcher ... explained in her affidavit ... that symptoms of the diseases will in all likelihood manifest during the lifespan of the trust. We believe that a 12-year period will provide sufficient time to alert claimants to the existence of the trust and to enable claimants to lodge their claims.”

The judgment noted how there was no established procedure in SA for obtaining the approval of a settlement agreement in a class action.

“We are satisfied the procedure followed by the applicants affords protection to the proposed class members by giving them ample opportunity to familiarise themselves with the terms of the settlement agreement; to consider their rights in relation to the settlement in advance of the return day; and to raise any objections they may have.”

A statement released by the parties said class members needed to be given the opportunity to opt out of the settlement. “This is because the agreement acknowledges that no individual can be forced to forego his or her right to pursue litigation should he or she so choose.”

Over the next few weeks, court-approved notices would be published and broadcast in newspapers in SA and other southern African countries, and on scores of radio stations in areas where former mineworkers resided. The statement said that the parties to the agreement were confident that the support of class members for the settlement was overwhelmingly positive.

“This is evidenced by the fact that no formal opposition was argued by any class members before the court, in the hearing that took place in late May.”

Once the opt-out period was over, and the settlement agreement became effective, the trust, which will be funded to the tune of R845m by the six firms, would commence “the real work of implementing the settlement.

“This will include the trust tracking and tracing class members, processing all submitted claims, including the undertaking of benefit medical examinations and the payment of benefits to eligible claimants.”

The Saturday Star