On August 24 and 25, the South Gauteng High Court will hear argument in the application by Sonke Gender Justice (Sonke) and the Treatment Action Campaign (TAC) to intervene as amici curiae (“friends of the court”) in Nkala and others v Harmony Gold and others, a class action against South African gold mines.
“For decades gold mines have treated their workers as inferior human beings and shown a shocking disregard for the health of these workers,” says Anele Yawa, General Secretary of the Treatment Action Campaign. “The exploitation of, mostly poor black workers, mirrors the apartheid and colonialist exploitation of workers that we have seen throughout the continent. That even in post-apartheid South Africa the rights of mine workers are routinely violated is a national disgrace.”
The case is a significant milestone in the process for the legal certification of a class action, which in itself is an important mechanism for access to justice. It is also important because the case concerns silicosis and tuberculosis in mines and the appropriate relief to be sought. The class action, if successful, would be the largest ever in South Africa and have widespread ramifications for mineworkers, their families and the gold mining industry.
The gold mining industry has, for decades, failed to comply with obligations to treat and prevent lung disease amongst mineworkers, and has thus caused mineworkers to develop tuberculosis (TB) and silicosis, an incurable and often fatal condition. Due in part to the failures of the gold mining industry, the TB and silicosis pandemics in Southern Africa have exploded to the point of public health emergencies.
Affected mineworkers have initiated a class action against 32 gold mining companies, collectively the entire South African gold mining industry, to claim compensation for their illnesses. If successful, the class of affected mineworkers could include hundreds of thousands of people.
Sonke and the TAC have applied to intervene as amici curiae in order to raise important legal arguments and present evidence that otherwise would not be before the court. In so doing, they would contribute to the court’s understanding of the law on class actions, the role of class actions in facilitating access to justice for vulnerable people and the consequences for such people of failure to certify the class.
If successful, TAC and Sonke will be permitted to participate in the hearing in October. The perspective and arguments of TAC and Sonke are vital to a full understanding of the case and could shift the debate and focus in the case significantly. “In short, we want to put the Constitution on the table in this case,” says Yawa. “When considering this matter the court must take into account the Constitutionally guaranteed rights we all have to access healthcare, to bodily integrity and to dignity. Just like Constitutional considerations swayed the balance in the famous PMA case in 2001, we believe it may change this case as well – and thus at least provide some justice for the shameful exploitation of black lives in South African mines.”
Sonke and TAC also seek to introduce evidence of the negative impact the gold mining industry’s neglect has had on labour-sending communities and particularly on women in rural areas. When miners are unable to work, they return to their rural homes to be cared for by their wives, sisters or other, almost always female, relatives.
UPCOMING PICKETS
On August 24 and 25, TAC will picket at the South Gauteng High Court to demonstrate that we are appalled by the mining industry’s neglect of basic human rights, including miners right to health and the right to dignity of those living in labour-sending communities such as those in the Eastern Cape.
TAC will also picket at the offices of the Teba miners recruitment agency in iDutywa and Lusikisiki in the Eastern Cape on August 24. Many of the affected miners over the years have come from these areas.
Background to certification class action
From October 12 to 23 2015, the South Gauteng High Court will hear argument as to whether the class should be “certified” and, therefore, permitted to proceed as a class action. It is the view of Sonke and the TAC that should the court decline to certify the class it would effectively leave thousands of people without access to justice – unable to access the compensation due to them because they do not have the resources to access courts through any other means except a class action.
The applicants in the certification application are represented by Richard Spoor Attorneys, Abrahams Kiewitz Inc and Legal Resources Centre.
Media contacts for Johannesburg:
Anele Yawa
Treatment Action Campaign
073 555 8849
anele.yawa@mail.tac.org.za
Xolile Sawuka
Treatment Action Campaign
060 363 6738
Strike Tshabalala
Treatment Action Campaign
079 557 4488
Tanya Charles
Sonke Gender Justice
079 109 5932
tanyac@genderjustice.org.za
Patrick Godana
Sonke Gender Justice
073 233 4560
patrick@genderjustice.org.za
Media contacts for the Eastern Cape:
Noloyiso Ntamehlo
Treatment Action Campaign, Eastern Cape
083 4871 814
Zukile Madikizela
(At Lusikisiki picket)
073 345 1488
Vuyokazi Matiso
(At iDutywa picket)
073 636 1373
PRESS KIT: BONGANI NKALA V HARMONY GOLD MINING COMPANY LIMITED & OTHERS
Background
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).
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 the law (legal issues around the transmissibility of damages) makes it difficult for miners’ dependents to pursue claims for damages suffered as a result of the loss of their breadwinners. Their claims often end up being much smaller than those that would have been awarded to the miners themselves.
The class action lawsuit
A class action lawsuit has been 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.
- There are two classes:
- Current and former gold mineworkers with silicosis and the dependants of those who have died as a result of silicosis.
- Current and former gold mineworkers who have or had contracted pulmonary tuberculosis, and the dependants of deceased underground mineworkers who died of pulmonary tuberculosis.
- These two classes include 56 class representatives who represent more than 25 000 individuals. Those who stand to benefit from the lawsuit are conservatively estimated to be between 100 000 and 200 000.
- All three teams represent the silicosis class, but only Abrahams represents the TB class.
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, yet is entirely preventable.
- The prevalence rates of silicosis among goldminers in South Africa 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.
- The annual rate of TB is double in mineworkers with silicosis compared to those without silicosis.
- 41% of black goldminers were found to have had TB upon autopsy.
- In 2007, the Department of Health estimated that the gold mining industry had the world’s highest rate of new TB cases, with new TB cases among miners, 33% higher than that of the general population.
- 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
South African law allows for miners to be exposed to much higher silica dust levels as opposed to their US counterparts.
The class members’ affidavits describe the lack of protective gear given to them to prevent them from inhaling silica dust. There was also no separation in the mining hostels between where the miners slept and where their silica covered 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, which has a higher ceiling for payouts. 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”.
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. 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.
Sonke Gender Justice Amicus Curiae Intervention: Gendered Impact of silicosis & TB
- Sonke is intervening as amicus curiae (friends of the court) with the representation of SECTION27.
- They are arguing on the gendered impact of occupational lung disease in mine-sending communities.
- The mining industry has effectively displaced its responsibility for taking care of sick miners onto women living in poverty stricken, rural, mine-sending areas, with limited transportation to get to healthcare services.
- Women, girls, and older women pensioners disproportionately undertake care work in South Africa.
- Hence, when mineworkers return home sick with silicosis and TB, it is women who take care of them – at considerable personal and financial expense – by withdrawing from formal and informal work, or (in the case of girls) leaving school. Yet, they are increasingly expected to fulfil the role of both caregiver and breadwinner.
- Mineworkers experience high levels of HIV and often experience co-morbidity of HIV and silicosis and/or TB.
- 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, and risk exposure to infection from coughing.
- 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.
- 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.
- 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.
Treatment Action Campaign (TAC) Amicus Curiae Intervention & Francis Wilson Affidavit: Socio-Economic Impact of Silicosis & TB
- TAC is intervening as amicus curiae (friends of the court) with the representation of SECTION27.
- They are raising legal arguments pertaining to 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, leaving families and communities 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 conducted by the Health Systems Trust with miners in the mine-sending communities found that almost all of the former workers had symptoms of respiratory illness. 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 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.
Important Dates
- The amici application is being heard by the South Gauteng High Court on August 24 & 25, 2015.
- The certification of the classes in the main application will be heard by the South Gauteng High Court from October 12th 2015.
Media representatives
Treatment Action Campaign
Anele Yawa
073 555 8849
anele.yawa@mail.tac.org.za
Xolile Sawuka
060 363 6738
Strike Tshabalala
079 557 4488
Sonke Gender Justice
Tanya Charles
079 109 5932
tanyac@genderjustice.org.za
Patrick Godana
073 233 4560
patrick@genderjustice.org.za
For legal matters:
Section 27
John Stephens
073 077 5779
