What are the widows and children entitled to?
Silicosis sufferers in the Eastern Cape are anxious to be compensated “in their lifetime”, following years of hard labour resulting in their health deteriorating because of underground exposure to dust. Last month, in a landmark judgment, the South Gauteng High Court ruled in favour of mine workers wishing to launch a silicosis class action against mining companies.
However, the mining companies in that case are appealing that ruling.
In March, Anglo American and AngloGold Ashanti put up nearly R500 million to settle a number of individual silicosis claims against them.
The larger class action, covering mine workers and former mine workers with silicosis and TB from almost all gold mines, would have taken a year to get off the ground even before all the major mines launched appeals against it.
But faced with everyday realities, extreme poverty, unemployment and ill-health, the desperate mine workers want to be compensated while they are still alive. Many others died penniless, leaving widows and young children with little to hope for.
City Press visited the rural Zinkumbini village in Libode, Eastern Cape, to speak to sufferers of silicosis and TB, and families of those who died sick and poor after working for decades underground.
Nyaniso Fuduswa (53) lives with his wife, Nolusapho, their four children and three grandchildren.
Fuduswa, who showed City Press a copy of his exit medical clearance documents, which revealed that he suffered from silicosis as a result of TB and pneumoconiosis, said he still suffered from ill-health.
He worked at Harmony Gold mines as a rock-drill operator from 1979 to 1999.
He was laid off due to ill-health, and now stays at home, sick and jobless.
“Even today I am still sick. I recently visited the local clinic because I was coughing nonstop. It is painful that these mines used us for many years, working under extremely difficult and inhumane conditions, only to send us home to die because we had been exposed to dust and inhaling all the chemicals there,” Fuduswa said.
He said if he got compensation, it would help send his younger children and grandchildren to school, and go towards building his house.
“A lot of people who got sick in the mines were not paid a cent. Most of them have died. I worked with some of these men. They suffered a lot and died penniless. The least that these mines can do is to take care of their families left behind,” he said.
Pakamile Holoza (82) worked at the Hartbeesfontein mine as a rock-drill operator between 1956 and 1990.
At his prime, Holoza was able to support his family as a mine worker and took pride in his job.
He was a respected member of the community in Mangwanani Village about 2km away from Zinkumbini.
It was later in 1990 that things changed for him when he was sent packing by the mining company, allegedly because he had contracted TB and was unfit to continue working. He regularly visits the local clinic for checkups and treatment because of his ill-health.
“The company just said I should stop working because I have TB. I was surprised because when I joined the mine I did not have any TB or illness,” Holoza said.
Referring to his illness in isiXhosa as “isifo somgodi”, meaning a disease contracted in the mines, Holoza claims he only got paid R320 from the mine when he was fired.
The married father of nine children and eight grandchildren mainly survives on social grants and says life is tough.
He and his wife, Nosebenzile (66), both get old age grants and three of their grandchildren receive the child support grant.
Speaking from his home, made of three rondavels and a two-room mud flat, Holoza said he was afraid A major part of the class certification judgment last month was a piece of common law development meant to massively increase the entitlement to damages from mining companies for widows and children of deceased mine workers.
It came as a surprise to everyone involved and could have huge ramifications for all other personal injury claims involving a claimant who dies.
All the mines are attacking this part of the judgment in their appeals against the class action, but it is unclear just how meaningful it would turn out to be in this case.
The case would most likely end in an settlement, not a court order on damages, so the widows’ claims would not have relied on the legal rules, said the mine workers’ lawyer, Richard Spoor.
There is no rand-and-cent claim before the courts yet, but when it comes, it will consist of legally distinct categories: lost earnings, medical expenses and “general Former mine workers with silicosis damages”, such as pain and suffering and loss of quality of life.
General damages are not inheritable, so when a mine worker dies and his dependants join the class action, they cannot sue for it – or for future medical expenses.
That would make widows’ claims before a court far smaller than for living mine workers.
The law as it stood before the judgment meant that the total claim against the mines was constantly falling as mine workers die and their general damage claims die with them.
Now the claims of those who die, and have died since 2012, are kept intact.
The common law only allows general damages claims to keep going after death if the court case has already reached a certain point.
In legalese, it is called litis contestatio – the point where pleadings are finished.
Judge Phineas Mojapelo called this cutoff arbitrary and unjust, and instead ruled that the real cutoff should be August 2012, when the court application for a class action was first filed.
He shifted the rule, but also implicitly criticised its very existence.
Mojapelo couched the decision as a way to compensate the dependants of a mine worker for the burden of care they would have borne. That is not something that could normally form part of general damages.
This still doesn’t mean that widows of workers who died before the application can claim general damages.
“I respect that the industry has a legitimate interest in challenging the transmissibility issue,” Spoor said.
“It is completely novel and new. I don’t think it makes a huge difference [to our case].”
Most of the claimants were old, and the dependants of those who had already died would have a hard time proving they had silicosis, said Spoor.
“So not many widows will have a claim. It will be a small class. The intention was to have them benefit, but we were not necessarily going to label it ‘general damages’. [The judgment] now gives that a legal justification.”
Despite the mines publically favouring a settlement, they have strongly attacked this part of the judgment.
Anglo American SA said “the learned judges should have held that such care workers would not necessarily have any legal entitlement to ... the deceased’s claim for general damages”.
According to AngloGold, the court “erred in finding that the deceased’s heirs would lose ... claims which they never had”.
Gold Fields likewise argued that “caregivers and families should have no claim to amounts in respect of such personal damages [general damages]”.
The practical effect of keeping general damages claims alive was illustrated by the original silicosis case in 2004, which made the class action possible.
In that case, Mankayi vs AngloGold, a silicotic mine worker sued his former employer for R2.6 million. Of that, half was for future medical expenses, which a widow would not get.
Another R500 000 was for general damages. In effect, that claim would have fallen by 72% if Mankayi’s widow pursued it after his death.
A recently published study of 11 557 current mine workers between 2004 and 2009 found that the incidence of silicosis is basically unchanged since the 1980s A number of studies of former mine workers since the 1990s have found the following: BATTLING ILL-HEALTH his wife, Nolusapho