by Ashley Wu:
A chest X-ray hangs in Mr. Mkoko’s door. The cavity in the upper left corner confirms what his constantcoughing already indicated: He has contracted tuberculosis.
Mineworkers in South Africa, used to frequent terminations due to occupational lung disease, colloquially say that their coworkers have been “sent home to die.” Though Mkoko was personally unsuccessful in fighting through the tangled web of legal statutes to obtain care or compensation, those who succeed him may have more luck.
South African miners are in a particularly fatal position because they are exposed to both some of the highest concentrations of silica dust and highest rates of HIV in the world. “Gold mining in otherparts of the world does not have this problem,” said Jonathan Smith, a professor at the Yale School of Public Health. “It’s not like it is in Peru, where mining is something more akin to industrialized panning for gold. Ore in South Africa is surrounded by silica dust.”
Immune cells in the lungs are predisposed to attack silica dust particles in the same way that they would react to true viral vectors. So the immune system becomes paralyzed in the battle to engulf a ceaseless supply of new silica particles. Continued exposure to silica dust eventually scars the lung tissue and results in silicosis, a permanent condition that cannot be treated. Given the rates of HIV in South Africa, particularly among miners, the combination of these two immunodeficiency disorders increases the risk of contracting tuberculosis by about 15 times.
It is no surprise, then, that tuberculosis prevalence among South African gold miners is the highest among any demographic population in the world, and 28 times the level of declared emergency by the World Health Organization.
But these facts and figures have been known for years. Not only do effective methods of controlling silica dust exist, but the world has also had an affordable cure for tuberculosis for half a century now. Ultimately, complexities of South African law, coupled with the legal power of mining conglomerates, have been the biggest obstacles to resolving this epidemic.
”Be prepared for a mess,” Smith warned as he began a discussion of why mining companies are able to flaunt existing compensation laws. The mining companies’ legal power has stymied governmental attempts to improve safety conditions. A 2008 government audit of the mining industry stated that the list of safety violations committed by mines “goes on and on.”
The first major legal obstacle is that the mining industry operates under a complex third party labor contract system. Third-party agencies, not the mining conglomerates themselves, go into remote villages and recruit men to work. “As such, the miners can’t sue the contracting companies because they are simply an intermediary,” said Smith. “The contracting company didn’t expose them to high levels of dust or disease, the mining company did. There is no legal claim there.”
This loophole aside, South African law also contains two conflicting compensatory schemes for occupational lung diseases. The first, the Occupational Diseases in Mines and Works Act (ODIMWA), was enacted in 1973 and provides disabled miners with a small lump sum. “But the bottom line is that the compensation payable under ODIMWA is particularly low, around R16,000 [or $2,062]” said mining law expert Warren Beech of the South African firm Webber Wentzel. The second scheme, enacted in 1993, is the Compensation for Occupational Injuries and Diseases Act (COIDA). Under COIDA, employees receive monthly compensation in exchange for signing away their right to sue employers. Payments are determined on a sliding scale based on disability level, similar to American Social Security Disability payments.
”Keep in mind, though, no one gets this compensation anyway,” said Smith.
A Deloitte audit of the mining industry found that only 400 out of 28,000 miners who filed ODIMWA claims in an 18-month period were granted awards. When they sign their contracts with the mining company, miners essentially give up their right to sue, Smith explained. Thus, former miners like Thembekile Mankayi are considered lucky if they can even get an ODIMWA award.
In March 2011, Mankayi’s groundbreaking case against AngloGold Ashanti was brought to the South African Constitutional Court, after the High Court rejected his right to appeal. “For the first time, a miner was asserting that he was entitled to damages outside of the four corners of the ODIMWA act, [that] he was not precluded from a common law claim because of COIDA,” said Bonita Meyersfeld, associate professor of law at the University of Witwatersrand, Johannesburg.
Mankayi’s case, which held that his occupational lung disease was a result of his exposure to harmful dusts and gases, was effectively a test of COIDA’s section 35(1). Though he died two days before he could see the Constitutional Court rule in favor of his case, the judgment “opened the door for claims against employers on a civil basis even in the case of coverage by ODIMWA,” according to Beech. Given the 300 to 500,000 former mineworkers who suffer from occupational lung diseases, mining companies would stand to lose a substantial sum if more cases are successfully brought to court. Collectively, these settlements would be worth up to R700 million (about $85 million), according to Beech.
Though the Mankayi case cements the legal right for miners to bring civil claims against mining corporations, it may yet be unrealistic to expect a tide of change.
”Again, you have the implementation problem. It is great in terms of an abstract right, but in terms of bringing actual justice, it’s going to be easier said than done,” said Gregg Gonsalves, former program coordinator for the Aids and Rights Alliance for South Africa’s tuberculosis campaign. Civil cases in the High Court typically last four to five years, involving litigation costs far out of reach of individual miners’ ability to pay. Since most of South Africa’s constitutional litigation is done through NGOs, progress in litigation really depends on whether NGOs are willing to recognize the potential in these mining cases.
Early indications of interest are encouraging. Sayi Nindi, a lawyer working with the nonprofit Legal Resources Center, currently has funding from Legal Aid South Africa to proceed with litigation in the Blom et al v. Anglo American group claim. The scope of the Blom case is even more ambitious than Mankayi’s, aiming to hold mining conglomerates like Anglo American responsible for the dangerous safety conditions and silica levels in their mines. If successful, the decision will hopefully arrive by the end of this year, Nindi believes that mining companies will be forced to form a compensation scheme that can be applied to the all the affected ex-miners.
Even considering all the recent legal progress, it is possible that the exasperating impunity under which mining companies operate may continue. Nindi points out a central difficulty of her own litigation: “On paper, everything seems fine. AngloAmerican reports that the silica dust levels in their mines adhere to the legally required maximum. But if that were true, every year we wouldn’t have thousands of miners being diagnosed with silicosis and dying.”
Indeed, big mining companies like AngloAmerican are also quick to call attention to the fact that they have programs to give workers access to medical treatment and drugs. But Gonsalves makes it clear that these programs make little practical difference. “First off, no one notices that many of the smaller mines don’t have these programs. And miners only get six months of treatment. They also have to get sick while they’re on the job in order to get the treatment—an issue if the disease contracted is silicosis, which is permanently incurable and only later leads to life-threatening tuberculosis.”
The Mankayi and Blum cases undoubtedly comprise an important first step towards forcing mining companies to be accountable for their role in the silicosis-tuberculosis epidemic. Laws in South Africa that mandate mines to provide basic safety equipment and limit the level of silica dust already exist. Perhaps, faced with evidence that occupational lung diseases are developed as a direct result of work-related conditions, the closing of the COIDAODIMWA loophole, and the possibility of paying group claims worth millions of dollars, mining companies may finally have the incentive to comply with these laws.
Ashley Wu ’15 is in Morse College. Contact her at ashley.wu@yale.edu.