A way to break the silicosis logjam

THE decision by Anglo American to settle with 23 miners who contracted silicosis while working on its mines in the Free State before 1998 could be the first step in breaking a logjam that has developed around silicosis compensation.

For nearly a decade, lawyers have been battling to get mining houses to admit some form of liability for silicosis among their workers, a position the mining houses have vigorously defended in the fear that should they do so, it would open the floodgates to claims.

The absurdity of this is that everyone accepts that mining causes silicosis. And of course the problem is complicated by SA’s history of racial discrimination. As far back as 1911, legislation was enacted to protect white miners and regulate compensation claims.

Most of the initiatives to tackle and compensate miners for silicosis have been skewed in favour of white miners. It was not until the dawn of SA’s democracy that the Occupational Diseases in Mines and Works Act was amended to give black miners equal compensation.

The problem the gold industry now faces is how it deals with the legacy of its operations, much like acid mine drainage, without, first, bankrupting the industry and, second, ensuring that those who were responsible are held to account. The gold mines have over the past two decades changed hands a number of times. Those who might have been operating the mines in the 1980s and 1990s in some cases no longer exist. This is an important point as it takes 10-20 years for silicosis to develop. So the present claims often have their roots in the late 1980s and early 1990s, which further complicates whom is liable. It is a conundrum all parties recognise.

What is at stake is trying to find the common ground to a mutually acceptable solution and determining what it will cost.

What is clear is that continuing litigation will not be able to achieve this goal. Rather it will further entrench positions, with the mining companies dragging out every possible court case on technical details. The miners’ lawyers have already accused the mining companies of deliberately adopting this tactic in the cynical hope that the claimants will die during the litigation, thus lowering their liability.

Yet even these attempts to paint the mining companies as uncaring have not been able to budge them from their positions. Anglo American gave an indication of this when it said in response to this week’s settlement that it did not accept liability and would continue to defend itself against any other claims made against it, either on an individual basis or in a class-action lawsuit.

Except, and this is quite telling, when it involves arbitration.

Could it be then that the company is willing to engage and find a route to compensation as long as it can avoid public liability?

It certainly makes sense and is an opening that the miners’ lawyers should explore further. For the mining companies, there is also merit in listening to calls for a settlement scheme to compensate victims.

Such a proposal will allow them to draw a line under this matter and move on unburdened from any future claims. It would also create greater certainty for investors in mining stocks, particularly those, such as Anglo American, which potentially faces the biggest liability should a judgment go against them.

And such a ruling, should it ever happen, will be calamitous for the industry, opening the door to death by a thousand cuts as miners line up to make individual compensation claims.

To continue to deny liability might make for a good legal strategy but it fails to recognise that next to the hostel system, silicosis is the gold industry’s most disgraceful legacy.

It would be better for the mining companies to find a solution that preserves its future than have one foisted on it.