Scales of justice will weigh gold against cost to health
Lawyer Richard Spoor holds government more to blame for miners’ neglect than companies
HUMAN rights lawyer Richard Spoor, who last week won the right for mineworkers with silicosis to institute a class action against gold mining companies, says his 11-year legal battle wouldn’t have been necessary if the government had done its job.
The government failed “dismally” to enforce health and safety legislation or compensate miners for occupational diseases such as silicosis and tuberculosis, he says. This in spite of the Compensation Fund for workers being “massive”.
“The government’s performance has been absolutely wretched. It is a disgrace.”
It has enabled offending companies to escape criminal or administrative liability, he says.
“It’s a case of us falling back on the civil justice system to ensure some accountability when accountability should be coming from the state and its enforcement agencies. And the state is failing dismally to do that.”
One of the consequences of the litigation is that it forces employers to take the health and safety of workers more seriously because if they don’t, they could be held accountable through the civil courts.
“There is civil accountability now, in the absence of any criminal or administrative liability,” Spoor says.
Thanks to the government’s “monstrous” failure there has been little incentive for employers to ensure decent conditions underground.
“Why would employers spend vast amounts improving ventilation in gold mines if, when workers get sick and die, it makes no difference to the bottom line or [doesn’t] land you in prison?”
One of the reasons health and safety in South African mines and industry cannot be compared to places such as Europe, the US and Australia — “the societies we’d like to compare ourselves to” — is because there is no accountability. And the government is the chief culprit.
“This is not about people in corporations and mining companies being bad. It’s about systemic failures. Systems that work properly will protect workers’ lives and ensure they are adequately compensated.
“If workers were being fairly compensated for the harm done to them in the course of their employment, we wouldn’t be litigating.
“A good system would eliminate the need for this kind of litigation. This is a measure of the inadequacy of the statutory system. It is a disgrace. It is monstrous.”
Spoor has been fighting for the victims of silicosis since 2005. Before that, he fought an eight-year battle to win compensation for sufferers of asbestos poisoning.
Safety regulations for miners were more stringent before 1994 than after, he says, but there was no enforcement whatsoever.
“What is shocking is that nothing has changed post-1994.
“There has never been a prosecution of a mine owner for exposing workers to excessive quantities of dust.
“There has never been an inquest into the death of a miner who has died from an occupational disease caused by exposure to dust.
“There has never been a formal accident inquiry into the serious illness or death of a mineworker as a result of exposure to harmful quantities of dust.
“Those are all mechanisms that exist in the law but have never been applied.”
The government has “no awareness or understanding of the problem”, Spoor says. And this goes for the National Union of Mineworkers, too, a member of the ANC’s alliance partner, the Congress of South African Trade Unions.
“Before 1994 there was considerably better capacity and understanding, but apartheid was predicated on migrant labour and the ability to bring in healthy young men and then just dispose of them.”
The problem then was a murderous ideology. Since 1994, it’s been about dysfunctional systems. But the outcome is the same.
Trade unions, too, have lacked the institutional memory and capacity to protect members.
“In the UK, helping workers secure compensation for occupational injury and diseases is one of the most fundamental and important services unions provide to their members,” says Spoor. “That has never been the case here.”
The only union with the capacity to assist workers with compensation claims is Solidarity, which has a unit specifically for this.
It’s naïve to blame the mining companies, Spoor says.
“Corporations are not people. They act in their own interest. If there are no systems to ensure accountability they are going to behave in antisocial ways. That is the character of the beast.”
It is not about the moral deficiencies of executives or directors, he says. “It’s not to do with the character of individuals; it’s to do with the way the organisation functions. The organisation has no soul. Corporations do what corporations do. They’re as ready to sell landmines to the Taliban in Afghanistan as they are to donate blankets to refugees.
“Corporations are soulless entities that do what is in the best interest of their shareholders. To appeal to them to do the right thing is futile. They need to be regulated and controlled, and then you will see responsible behaviour.
“There are very good people who work in these corporations. They are not ‘bad’ people. But the organisations they work in and with do terrible things.”
Up to 1978, mineworkers who developed tuberculosis were sent home untreated to Mozambique, Malawi, Lesotho, the Eastern Cape or wherever, in the full awareness that they would not receive adequate treatment and would die.
“It was absolutely murderous,” says Spoor. “You look back on that and say, ‘How on earth could you ever have done that?’ But that’s what they did.
“There’s a moral culpability, but as a lawyer I’m interested in holding somebody to account. Pointing fingers and saying ‘you’re a bad man’ doesn’t really help.”
Pinpointing liability is difficult because corporations have restructured out of their liabilities. Anglo used to dominate the local asbestos industry. When it recognised the potential environmental and human costs, it sold its asbestos interests to Afrikaner empowerment capital in the form of Gencor.
Similarly, when Anglo saw the writing on the wall with gold and began to understand the environmental and human costs associated with 100 years of gold mining, it got out. In the late 1990s it restructured completely and by early in the new century it was out of gold.
The result is that 40% of the mineworkers with these diseases (100 000 to 200 000) are likely to have no remedy because the mining companies they worked for no longer exist.
Spoor says they may be saved by a precedent in English law for parent company liability, which he thinks South African law could follow.
This is the basis on which Gencor accepted liability in relation to the asbestos litigation. “We raised precisely that argument,” he says.
Meanwhile, the gold mining companies descended from Anglo have formed a working group that is talking to Spoor about a possible settlement.
“The day the benefits of settling outweigh the costs of continuing to fight the matter is the day the matter will settle,” he says. “That’s how corporations work.”
The certification of a class action by the High Court in Johannesburg last week is likely to hasten settlement.
“They think about what a class action means, and they don’t like it.”
After 1994, funding for human rights law almost dried up. Spoor has been able to afford the asbestos and silicosis litigation only because he is partnered with the large US law firm Motley Rice.
“You can’t go into this kind of battle with very powerful and wealthy corporations without your own support. It’s important that industry knows I have a partner with very, very substantial resources.
“This helps the mining companies understand that we have the capacity, the resources and the will to pursue this thing as far as we need to go.”
Spoor, 57, is a University of Cape Town graduate who worked for labour law firm Cheadle Thompson and Haysom before starting a one-man public interest law firm in White River, Mpumalanga.
He was vilified as a racist last year when he said he didn’t use more black advocates because those who met his standards weren’t prepared to work for the kind of money human rights law pays. “My dream is to litigate for poor people and workers on a sustainable basis. The fact that I’ve survived for 30 years shows that it can be done, but it’s really marginal. It’s very, very difficult. If it were easier, a lot more people would do it, but they don’t.”
Lawyers wanting to get rich “steer well clear of this kind of work”, he says.
This is not about people in corporations being bad. It’s about systemic failures The day the benefits of settling outweigh the costs of fighting is the day the case will settle