TAC/Sonke Background on amicus Application in Historic Gold Mining Lawsuit

On August 24 and 25 2015 the South Gauteng High Court is hearing our application to be admitted as “friends of the court” in the historic Nkala and others v Harmony and others class action lawsuit. We’ve prepared a briefing note to help our members and the public better understand what it is all about.

Below are links to some of the key legal documents:
The Treatment Action Campaign and Sonke Gender Justice Application to Intervene as amici curiae in:
Bongani Nkala v Harmony Gold Mining Company Limited & Others
In March 2011, the Constitutional Court (the Court) made a ruling that allowed current and former mineworkers to institute damages claims against mining companies for occupational diseases. This lawsuit – Mankayi v AngloGold Ashanti Limited  – sets a critical precedent, as it now allows former gold mineworkers with silicosis to institute civil damages claims in addition to pursuing the paltry statutory compensation established by the Occupational Diseases in Mines and Works Act of 1973 (ODIMWA). For severe silicosis, which is a death sentence, the maximum payout under ODIMWA is only R100,000 . 
Mr Mankayi died of silicosis a week before the Court’s ruling. His family however, including his widow, pursued their claim in the high court. To date, she has yet to receive a cent, because legal issues around the transmissibility of damages make it difficult for miners’ dependents to pursue claims for damages suffered as a result of the loss of their breadwinners. 
The class action lawsuit 
Class action lawsuits can potentially provide access to justice for large groups of people who would not otherwise have access to justice. So, for example, the Nkala lawsuit seeks to provide access to justice for former workers in South Africa’s gold mines who contracted silicosis or TB. Class action lawsuits have been rare in South Africa and therefore the law in regard to how they should be conducted is still developing. The Nkala lawsuit therefore provides an opportunity to help shape the law in ways that would benefit other classes of vulnerable people in other industries.
Mr Mankayi’s widow, Ms Nozuzile Mankayi, is part of the class action lawsuit being filed by Richard Spoor Attorneys (Spoor), Abrahams Kiewitz Inc (Abrahams), and the Legal Resources Centre (LRC) against the 32 gold mining companies collectively comprising the entire South African gold mining industry. The various legal teams have been developing these cases over many years, e.g. LRC has been preparing its case for about a decade. 
•The main applicants are asking the court to certify two proposed classes:
1)Current and former gold mineworkers with silicosis and the dependants of those who have died as a result of silicosis. 
2)Current and former gold mineworkers who have or had contracted pulmonary tuberculosis, and the dependants of deceased underground mineworkers who died of pulmonary tuberculosis. 
•56 class representatives are named as applicants. The number of potential class members who stand to benefit from the lawsuit is conservatively estimated to be over 200 000.  
The hearings in October will determine whether these two classes will be certified by the court.
TB, Silicosis and HIV
•Silicosis is a degenerative lung disease arising from exposure to and inhalation of silica dust . 
•It is a latent disease, meaning it can appear decades after exposure to the dust.
•It is an irreversible condition with no cure. 
•It is preventable. 
•The prevalence rates of silicosis among South African goldminers is 22 – 36% .
•Silicosis prevalence among older or long-serving current and former black mineworkers is between 22-32%, with above 50% for former black mineworkers over the age of 50 . 
•Silicosis is an inflammatory and fibrotic lung disease that also hinders the body’s ability to control the mycobacteria that cause TB. This leads to about a doubling of the annual rate of TB in mineworkers with silicosis compared to mineworkers without silicosis .
•41% of black goldminers were found to have had TB upon autopsy . 
•The crowded hostels at the mines have become TB breeding grounds and by 2007 new TB cases among miners was 33% higher than that of the general population . 
•In 2007, the Department of Health estimated that the gold mining industry had the world’s highest  rate of new TB cases, with prevalence ranging from 3000 – 7000 per 100,000 miners per year . Nationally, prevalence was 715 per 100,000 in 2013 . The WHO considers an incidence of 250 per 100,000 to be a “health emergency”. 
•The TB epidemic is also linked to the high levels of HIV amongst miners. Those with HIV are 4 times more likely to develop TB . 
•15% of HIV-positive, silicotic mineworkers develop TB each year, versus 1% of HIV-negative, non-silicotic mineworkers . HIV prevalence among mineworkers is 14% higher than among the general population . 
The Gold Mining Industry
The gold mining industry in SA has fought viciously to ward off the imposition of stricter regulation that would protect the health of workers . South African law allows for miners to be exposed to much higher silica dust levels as opposed to their US counterparts (see table below). There are two types of silica dusts that are regulated by South Africa in terms of the Hazard Chemical Substance Regulations of the Occupational Health and Safety Act, 1993 – fused and crystalline –both of which have an Occupational Exposure Limit. However, silicosis is caused specifically by crystalline silica. There is a large discrepancy between international and South African limits, as evident in the table below.
The class members’ affidavits describe the lack of protective gear given to them to prevent them from inhaling silica dust. The miners describe being “caked in dust”. There was also no separation in the mining hostels between where the miners slept and where their silica-clothes were kept. Consequently they inhaled the dust day and night. 
ODIMWA establishes a separate compensation scheme for miners, and precludes them from accessing compensation through COIDA. It is the only industry that is not governed by the Compensation for Occupational Diseases Act, which has a higher ceiling for pay-outs. This is contrary to the ILO Convention (No.42) on workers’ compensation for occupational diseases, which requires that compensation rates for occupational diseases not be “less than those prescribed by the national legislation for injury resulting from industrial accidents”. 
It is the rare miner who knows of their rights under ODIMWA. Research by the Health Systems Trust found that 99% of former mineworkers surveyed in the former Transkei had no knowledge of the ODIMWA compensation scheme . 
As of 2011, an estimated 280,000 miners would have qualified for compensation under ODIMWA.  Even worse, the miners who do know of ODIMWA and make claims rarely get paid out. A study by Deloitte found that less than 1.5% of claims of people certified as eligible through ODIMWA actually received their full payments . Few who are compensated benefit from the lump sum. In terms of ODIMWA, compensation is paid out on the basis of severity of disease. For first degree severity, they receive a small payout, and if this progresses to second degree severity, there is a second payout to ‘top up’ to the total amount of approximately R100, 000. This maximum amount payable is often for those with silico-tuberculosis . 
It is for all of these reasons that researchers like Professor Jonny Myers of the University of Cape Town Centre for Occupational and Health Research says that the gold mines “convert lung structure and lung function into profit” .
Amicus Curiae Intervention
Treatment Action Campaign (TAC)  And Francis Wilson Affidavit : Socio-Economic Impact of Silicosis & TB
•TAC has applied to intervene as amicus curiae with the legal representation of SECTION27. 
•In addition to raising legal arguments pertaining to the class certification as well as the transmissibility of damages, Professor Francis Wilson’s affidavit raises evidence around the devastation caused to mine-sending communities. 
•Since the discovery of gold in South Africa, the mining industry has depended on the structural violence caused through the racialised migrant labour system allowing gold mining companies to rake in unspeakable wealth, while mineworkers sacrificed their bodies and lives, and their families and communities were left devastated.
•This devastation is acutely experienced in communities that provided mining labour such as the former Transkei, Lesotho and Mozambique. The former Transkei, by far the largest provider of labour to mines within South Africa, experiences the worst levels of deprivation in the country, whether measured by rates of employment, level of education, living conditions or material deprivation. Research by the Southern African Social Policy Research Institute found that as of 2011, 69% of households in the former Transkei had no refrigerator, telephone, television or radio, and 58.4% people between the ages of 18-64 had no secondary schooling . 
•Research conducted by the Health Systems Trust with miners in the mine-sending communities of the former Transkei, puts a fine point on the deprivation and illness caused by the exploitation of miners. Almost all of the former workers in the study had symptoms of respiratory illness (coughing, weight loss and fever). A quarter of them were diagnosed with TB while in the mines, and half had been diagnosed with TB since leaving them. None of them were formally employed and 92% said they went without food or experienced hunger on a monthly basis .
•For the many migrant mineworkers from outside of SA, like Lesotho, Botswana and Mozambique, it is even more difficult to secure compensation, as they must return to their countries of origin after they are released from their jobs. These workers have limited or no knowledge about their social security status in South Africa, let alone the ODIMWA benefits applicable to them. These workers, and the widows, orphans and dependents of deceased foreign migrant workers often face utter destitution on top of the emotional pain of sick or dying loved ones. 
Advocate Anand Grover Affidavit : International Law and The Right to Health
•Advocate Anand Grover was the UN Special Rapporteur on the Right to Health until July 2014. His affidavit focuses on the Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework (aka “The Ruggie Principles”) and the right to remedy. 
•His final report as the UN Special Rapporteur focused on the need for corporate accountability in the face of transnational corporations’ increasing power and domination in the global economy. He also wrote about their influence over domestic policy that infringes on the state’s policy space. These corporations are major rights violators that undermine rights with impunity – especially transnational corporations. 
The UN Special Representative on business and human rights – John Ruggie – proposed the UN Guiding Principles on Business and Human Rights. They describe the duty of the state to protect rights, including through developing policy and law to hold corporations accountable. They describe the responsibility of corporations to respect rights, including through preventing and addressing human rights violations. Lastly, they underscore the importance of access to remedy, including state obligation to reduce legal, practical and other barriers to remedy. 
Sonke Gender Justice: Gendered Impact of silicosis & TB 
•Sonke has applied to intervene as amicus curiae with the legal representation of SECTION27. 
•Dean Peacock’s affidavit raises arguments and presents evidence on the gendered impact of occupational lung disease in mine-sending communities. 
•In addition to the legal issues that need to be clarified through the courts on the transmissibility of damages to widows, children and other dependants of the mine workers, the mining industry has effectively displaced its responsibility for taking care of sick miners onto women living in poverty stricken rural mine-sending areas, where there is often no access to running water, and limited transportation to get to healthcare services. 
•Hence, when mineworkers return home sick with silicosis and TB, it is women who take care of them – at considerable personal and financial expense. All too often the mothers, sisters, wives and partners of sick mineworkers are required to withdraw from formal and informal work, or (in the case of girls) leave school, in order to care for men with mine-induced chronic and often fatal respiratory illnesses. 
•Caregiving is demanding and includes efforts such as carrying, lifting and bathing patients, monitoring medication, and staying up at night to attend to patients. 
•Caregivers are often anxious about the physical deterioration of their loved ones that they cannot stop or reverse. They have reported experiencing tearfulness, nightmares, insomnia, worry, anxiety, fear, despair and despondency, as well as trauma. They additionally report headaches, body aches and physical exhaustion, and caregivers who are elderly women report deteriorating health due to stress.
•Mineworkers experience high levels of HIV and often experience co-morbidity of HIV and silicosis and/or TB. Co-morbidity with TB and silicosis, even without HIV, is catastrophic. 
•Where a patient with silicosis is co-morbid with TB and /or HIV, caregivers may come into close contact with the patient’s body fluids, or even risk exposure to infection from coughing. 
•Caregivers are sometimes the only breadwinners.
•Women in South Africa are increasingly expected to fulfil the role of both caregiver and breadwinner. 
•Women, girls, and older women pensioners disproportionately undertake care work in South Africa. 
•We know that women with precarious employment and girls with limited formal education are in turn more vulnerable to HIV and gender-based violence and have a harder time accessing their right to equality and other rights. 
•Data on the gendered nature and consequences of home-based care, found that by creating a disproportionate burden on women, home-based care is exacerbating existing gender inequities.
•The assumption that care is a woman’s role exacerbates the exploitation of women, who are strained by having to juggle caregiving for the sick on top of existing work, child rearing, elder care and/or domestic chores.
•This enormous time-tax limits women’s ability to engage socially in other activities, and reduces their time for self-care. The lack of daily assistance from males (partners, sons, and other relatives) is compounded by the lack of employment and abject poverty that is a common feature in the communities that provide mining labour. As of 2010, women spent significantly more time than men providing unpaid housework, including care work. 
•Caring for the sick is especially difficult for girls who are ill equipped mentally, emotionally and physically to cope with burden.
•Caring for someone experiencing these illnesses can be full time work and is provided on an unpaid basis. 
•Even worse, as the law currently stands, it is difficult for them to receive just compensation, equal to the amount the deceased miners they cared for could receive through the courts, which in itself is already an insufficient amount. 
Important Dates 
•TAC and Sonke’s application to be admitted as amici curiae is being heard by the South Gauteng High Court on 24 and 25 August 2015. Court starts at 10h00.
•The certification of the classes in the main application will be heard by the South Gauteng High Court starting 12 October 2015. 

Important Sources and References

[1] Mankayi v. Anglo Gold Ashanti Ltd, 2011 ZACC 3; 2011 (5) BCLR 453 (CC).

[2] Occupational Diseases in Mines and Works Act 79 of 1973 [Accessed from https://www.acts.co.za/occupational-diseases-in-mines-and-works-act-1973/index.html].

[3] Abrahams Kiewitz Attorneys, Legal Resources Centre, and Richard Spoor Attorneys Inc. (2013). Legal Teams Seek to Consolidate Thousands of Cases in Historic Silicosis Litigation. Press Statement.

[4] Cowie, R. L. (1994) The epidemiology of tuberculosis in gold miners with silicosis. American Journal of Respiratory Critical Care Medicine, 150.

[5] Trapido, A. (2000). An Analysis of the Burden of Occupational Lung Disease in a Random Sample of Former Gold Mineworkers in the Libode District of the Eastern Cape. University of Witwatersrand: Johannesburg, South Africa.

[6] Nelson, G. et al. (2009). Three Decades of Silicosis: Disease Trends of Autopsy in South African Gold Miners. [Accessed at http://repository.up.ac.za/bitstream/handle/2263/13797/Nelson_Three%282010%29.pdf?sequence=1&isAllowed=y].

[7] Corbett, et al, “HIV infection and silicosis: the impact of two potent risk factors on the incidence of mycobacterial disease in South African miners,” AIDS 14(2000): 2762, as sited in Byoko, et al, Fulfilling Broken Promises: Reforming the century-old compensation system for occupational lung disease in the South African mining sector, Yale Global Health Justice Partnership, Policy Paper (No.2/2013).

[8] Nelson supra note 6.

[9] Stuckler, D., Basu, S., McKee, M., Lurie, M. (2011). Mining and Risk of Tuberculosis in Sub-Saharan Africa. American Journal of Public Health, 101(3), pp. 524-530 [Accessed at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3036676/].

[10] Department of Minerals and Energy (2008). Mine Health and Safety Audit.

[11] Department of Health (2007). Tuberculosis Strategic Plan for South Africa, 2007-2011. [Accessed at http://www.gov.za/sites/www.gov.za/files/tbstratplan_0.pdf].

[12] WHO (2013). South Africa. Annex 2 Country Profiles, pp. 141.  [Accessed at http://www.who.int/tb/publications/global_report/gtbr14_annex2_country_profiles.pdf?ua=1].

[13] Corbett supra note 7.

[14] Ibid.

[15] Corno, L. & De Walque, D. (2012). Mines, migration and HIV/AIDS in southern Africa. World Bank Policy Research. [Accessed at http://elibrary.worldbank.org/doi/book/10.1596/1813-9450-5966].

[16] Jonny Myers, “Dust measurement, exceedances and the need for proper monitoring on the South African gold mines,” presented at the Alternative Mining Indaba, February 2015.

[17] US Department of Labor: Occupational Safety & Health Administration [Accessed at https://www.osha.gov/dts/chemicalsampling/data/CH_266740.html]. 

[18] Ibid.

[19] WHO (2007). The Global Occupational Health Network: Elimination of Silicosis. GOHNET Newsletter. [Accessed at http://www.who.int/occupational_health/publications/newsletter/gohnet12e.pdf].

[20] Ibid.

[21] Safe Work Australia (2012). Guidance on the Interpretation of Workplace Exposure Standards for Airborne Contaminants.

[22] WHO supra note 19.

[23] Byoko, et al, supra note 7.

[24] Roberts, J. (2009). The Hidden Epidemic Amongst Former Mineworkers: Silicosis, Tuberculosis and the Occupational Diseases in Mines and Works Act in the Eastern Cape, South Africa. Health Systems Trust: Durban, South Africa.


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