silicosis
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While the cogs have turned slowly in what has been the first class action settlement of its kind in South Africa, mine workers that have been affected by occupational lung diseases including silicosis and tuberculosis from working in South Africa’s gold mines will soon start being compensated by the companies for which they worked.

CHANTELLE KOTZE reports.

This article first appeared in Mining Review Africa Issue 3, 2020
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The compensation for workers suffering from occupational lung diseases is the outcome of a three-year long negotiation process, between Richard Spoor Inc, Abrahams Kiewitz Inc and the Legal Resources Centre – representing claimants in the silicosis and tuberculosis class action litigation – and the Occupational Lung Disease (OLD) Working Group – representing African Rainbow Minerals, Anglo American SA, AngloGold Ashanti, Gold Fields, Harmony Gold Mining Company and Sibanye-Stillwater, which culminated in a R5 billion settlement agreement, which was reached on 3 May 2018.

The agreement provides for compensation to all eligible gold mineworkers (or their dependants) suffering from silicosis and/or who contracted work-related tuberculosis.

Eligibility is based on a mine worker having worked for a mine owned or managed by any of the six companies that are party to the settlement at any time between 12 March 1965 and 10 December 2019 – the date at which the settlement agreement became effective. 

However, before the agreement could become effective, class action members were given the right to opt out of the agreement if they so wished. The 90-day opt out period ended on 24 November 2019. The opt-out submissions underwent an independent audit and the outcome was that only three members chose to opt out.

Fair, adequate and reasonable settlement

Speaking at the media briefing, Michael Murray, chairperson of the OLD Working Group (which acts as a platform with which to engage all stakeholders including mining companies and unions, the regulators, medical professionals and others), said that this settlement is significantly better crafted and has better outcomes than any result that the claimants’ lawyers or the mining companies could have ever achieved and could be used as a model for other disputes that may come forward in future.

According to Murray, the settlement saw parties able to benefit from the dispute in a way that they could not otherwise in the following ways:

  • The settlement provides for a class that is wider than the class that was certified by the court;
  • The amounts that companies have to pay are guaranteed by banks, with no danger of the guarantees failing and no risk that the claimants will not be paid what they are entitled to;
  • There is no cap on the amount that the claimants will receive (claimants will be paid the fixed amount determined by the level of severity of the silicosis or tuberculosis that they have), irrespective of the number of claimants that come forward;
  • If claimants develop silicosis during the 12 year life of the Trust they will still be entitled for compensation for the duration of the Trust;
  • The medical examinations and tests applied to determine whether or not claimants are entitled to compensation are largely aligned with the Compensation Commissioner for Occupational Diseases’ (CCOD’s) statutory requirements, which means that the examination can be used to determine whether they are eligible for both statutory compensation and settlement compensation.

Establishment of Tshiamiso Trust now under way

The Tshiamiso Trust, which will identify and certify, as well as oversee the processing of claims and payment of benefits to those eligible, was registered on 28 November 2019.

Initial work has focused on the logistics of establishing offices, not only in and around South Africa’s labour sending areas, but also within the common labour sending areas of Mozambique, eSwatini, Lesotho and Botswana from which a majority of the historical mine workers had been sourced. Resources are currently being focused in Lesotho and the Eastern Cape, from where the bulk of South Africa’s gold mines drew its labour.

While Murray believes close to one million mine workers could be considered as potential claimants, owing to the sheer number that worked on South Africa’s gold mines over the past-half century, he expects fewer than 100 000 people to be certified as eligible for compensation.

Additionally, the appointment of the full Board of Trustees, which will comprise seven members, including the CCOD, is now under way.

Silicosis claims broadly fall into three classes of compensation, depending on the severity of claimants’ illness, namely:

  • Silicosis Class 2 (equivalent of 1st degree silicosis in ODMWA) – R150 000;
  • Silicosis Class 3 (equivalent of 2nd degree silicosis in ODMWA) – R250 000; and
  • Silicosis Class 4 (which provides relief to a small number of claimants who are suffering from extraordinary disease conditions which exceed most other silicotic claimants) – R150 000.

An additional class – Silicosis Class 1 – has been added to the settlement agreement. While not compensable in terms of ODMWA, the settlement makes provision for mineworkers in this class, where eligible workers will be compensated R70 000 if they suffer from an early stage of silicosis, with lung function impairment of up to 10%.

There are also three classes of tuberculosis for which compensation will be paid. Where an eligible claimant has passed away, his or her dependant will be entitled to claim.

With first pay-outs expected at the end of June, further details on the establishment of the Trust and how potential beneficiaries can establish whether they might be eligible for compensation under the Trust and, if they are potentially eligible, how to go about establishing a claim, will be made in due course.

Ensuring a healthier future

The OLD Working Group, which was established in 2014, initially by five current and past gold mining companies, but soon extended to six, was aimed at creating a better compensation system that is both fair to past, present and future gold miners – and one that is also sustainable for the gold sector.

Over and above facilitating the class action settlement compensation, the OLD Working Group aims at overcoming the significant shortcomings of the Medical Bureau for Occupational Diseases (MBOD) where statutory compensation is paid to mineworkers.

In doing so, the OLD Working Group, and the Minerals Council, work hand-in-hand with the CCOD to improve the administration of the MBOD and speed up the statutory compensation payments to eligible claimants.

Equally important, the OLD Working Group is also working toward ensuring that the right compensation system, with compensation coverage for all employees who join the industry in the future, is employed.

According to Murray, this is the application of the Compensation for Occupational Injuries and Diseases Act (COIDA) across the board – as COIDA is a progressive compensation system that is compliant with standards set by the International Labour Organisation.

“By having all new members of the industry covered by COIDA, this will ensure that mineworkers who become sick or are injured in the course of their employment are eligible for substantially higher compensation than employees suffering occupational lung disease, who currently fall under ODMWA.”

While this legislative reform is still in the pipeline, Murray believes that this should significantly improve the benefits to new mineworkers but would likely also preclude future litigation.