Five years after committing to pay R5bn to impoverished former miners with terminal lung disease South African gold mining companies have yet to fully deliver, says public interest lawyer Richard Spoor, who brought a precedent-setting class action against them in 2012.
The companies, which include AngloGold Ashanti, Gold Fields and Harmony Gold, basked in good publicity after agreeing to a R5bn out-of-court settlement in 2018 for miners with work-related incurable lung conditions. So far only R1bn has been paid out to 11,300 out of 110,000 claimants.
“The implementation of these settlements is problematic”, says Spoor, adding that the mining companies are of the view that having concluded the agreement they've discharged their obligation to the miners.
“The fact that the agreement isn't being implemented particularly well or efficiently is an issue they haven't focused on. I guess they're still basking in the satisfied feeling you get when you conclude a good agreement and get recognised and acknowledged for making this commitment.”
Thousands with incurable silicosis from breathing in gold dust during 30 years underground have died and are dying, leaving their families destitute
A trust set up to disburse the R5bn is administratively cumbersome and expensive, and getting money out it has been an uphill battle.
“We're asking for the appointment of a special master with quasi-judicial powers to award damages and expedite the damages payment process. But there are very significant challenges.”
These include the attitude of the agent representing the mining companies. A company in its own right, the agent is not doing what it should be doing to carry out the trust's mandate to compensate as many people as it can within its lifetime, says Spoor.
The agent says it has to be sure the precise terms of the settlement agreement are followed, but Spoor's perception, which he says is shared by the majority of trustees, is that the agent is playing an obstructive role.
“What we've communicated to the industry is that this threatens the goodwill that was established with the settlement. We're pointing out that it would be very unfortunate if what was achieved there is undermined by the companies' agent.”
He's been trying to get the mining companies “to prevail upon the agent” to speed up the payments.
Meanwhile, thousands with incurable silicosis from inhaling dust during 30 years underground have already died or are in the process of dying, leaving their families destitute.
“The next step forward for the mining companies is to say, 'We've agreed to this settlement, let's make sure we get it implemented effectively so it accrues to the benefit of the workers as quickly as we possibly can.’ That's where they need to go.”
Over and above the R5bn promised by the gold mining companies, almost R1bn has been paid out as a result of separate litigation Spoor launched for workers with asbestos-related cancer years before his class action on behalf of silicosis sufferers. This means R2bn has been paid out so far to workers “dying every day, most of them utterly impoverished, unable to afford adequate medical treatment or support their families”.
Even this modest amount wouldn't have been possible without considerable financial support from large law firms in the UK and US with a commitment to social justice, he says.
Since the asbestos and silicosis settlements, he has completed the tortuous process of getting permission to file class actions against the coal mining companies.
After filing class actions against South32, BHP, Seriti Power, Anglo American and Thungela, he filed a class action against Exxaro last week and will file one against Glencore in December, he says.
As well as being an instrument to ensure accountability, he sees litigation as an incentive for mining companies to change their attitude to their workers' health.
It's an attitude illustrated by one of the silicosis sufferers he represented who had been a gold miner for 30 years until being laid off in 2007 because he was too sick to be of any further use to the company. He was shown an X-ray of his ravaged lungs and told in effect to go home and die. All he got was his retirement fund worth R4,000, and a R72,000 payment from the department of health under the Occupational Diseases Act. Then nothing.
The likelihood of getting terminal lung disease from inhaling coal and gold dust has been “very well understood by mining companies for a very long time but there were no consequences for killing and maiming workers this way”, Spoor asserts.
There were health and safety laws but no mine-owner had ever been prosecuted for exposing employees to hazardous levels of dust and gas underground.
“The position of the mines was that they were indemnified against civil claims by the workmen's compensation legislation. We felt that they were not, and ultimately the Constitutional Court agreed with us in 2011, and the right to recover civil damages was established. It was from that point that we were able to litigate these issues.”
He tried in the early 2000s on behalf of a worker at Highveld Steel who had asbestosis, and lost. He kept trying until succeeding in 2011, by which time the worker had died.
“There has been no incentive to protect workers from getting these incurable diseases.”
To what extent can they be protected from breathing in coal and silica dust?
“It is possible to ventilate the work environment and keep it clean and safe so it doesn't pose a threat to their health. It's not rocket science. Terminal lung diseases are not an inevitable consequence of mining. They're completely preventable.
“Mining companies never had an incentive to prevent them thanks to the statutory regime they helped to engineer through the political clout they had, which granted them immunity to civil action. That's what it was about all these years.
“Protecting workers' health underground requires care, equipment, technology and management systems, which cost money. If you have no incentive to spend that money you're not going to do it.”
He's determined to give every coal mining company in the country an incentive, but is under no illusions about the challenge.
“You're chasing a moving target. Companies are continually restructuring and reinventing themselves to remove all historical liability.”
It's been happening “flat out”, he says.
“You're always too late, always at least 10 years behind the curve.”
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