What are the wid­ows and chil­dren en­ti­tled to?

CityPress - - Business - LUBA­BALO NGCUKANA busi­ness@city­press.co.za DE­WALD VAN RENS­BURG de­wald.vrens­burg@city­press.co.za

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

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