There may be a R5bn silicosis settlement, but miners have a long wait


It might take “several years” for former mineworkers suffering from silicosis and tuberculosis to be compensated despite a R5-billion landmark settlement being reached.

Two weeks ago a full bench of the Johannesburg High Court approved the settlement of the silicosis and tuberculosis (TB) class action suit.

Bongani Nkala (65) was a general worker at Harmony Gold from 1981 and was able to provide for his family, which included his wife, four children and six grandchildren.

However, in 1997 he was told by the mining company that he was no longer fit for the job and was booted out.

He received just R2 000 in compensation. He later discovered that he had TB.

Nkala, who lives in Khambi village in Mthatha, said he was glad that the matter had been concluded.

“I don’t care how much I will get, it’s better than nothing. Many of our brothers who have worked in the mines died poor because this case was dragging on for too long,” Nkala said

The settlement is between the Occupational Lung Disease Working Group – representing African Rainbow Minerals, Anglo American SA, AngloGold Ashanti, Gold Fields, Harmony and Sibanye Stillwater – and settlement classes’ representatives as well as the settlement classes’ attorneys Richard Spoor Inc, Abrahams Kiewitz Inc and the Legal Resources Centre.

In terms of the R5-billion settlement agreement each of the tens of thousands of eligible former mineworkers will receive between R70 000 to R500 000 categorised according to the degree of harm suffered by claimants.

The gold mine companies agreed to collectively furnish a security of R5 billion which will be paid to a Trust that will be established to administer the claims.

The settlement was concluded in May 2018 and approved by the courts on July 26.

Richard Spoor whose legal firm represents 25 000 class action members told City Press this week that even though the settlement, which was a culmination of three years of extensive negotiation between parties, was a measure of justice, the real work was still to come.

The road ahead

“There is still one more step in the process. People who wish to not participate in the settlement will now have an opportunity to say so. We call this the opt-out process, so people who don’t want to be part of the agreement, are not happy with it or think they can do better, those people can make their own cases. That is the last obstacle,” Spoor said.

Over the next few weeks court-approved notices will be published and broadcast in newspapers in South Africa and other southern African countries, and on scores of radio stations in those areas.

The notices will inform class members of their right to opt out. These will be published and broadcast repeatedly for four weeks, and class members will then have an additional 60 days to submit their opt-out forms, if they so wish.

Spoor said after the opt-out process was concluded the next step would be to register a trust so that it would commence with the real work – tracking down the mineworkers, processing their claims, arranging medical examinations and accepting claims.

“That is what is going to be a real job because we’ve got tens of thousands of former mineworkers scattered across South Africa, Mozambique, Swaziland, Lesotho, Botswana, Zimbabwe and even Malawi. And of course in South Africa most of them are found all over the Eastern Cape,” Spoor said.

He said reaching all of these people in their homes was a big task and would take several years to finish, which was why the life of the trust was 12 years.

Spoor said the compensation of the mineworkers was not by any chance fixing the wrongs of the past, such as the 100 years of migrant labour in gold mines in South Africa.

‘We did our best

“What the court found when it approved the settlement was that this is the best settlement we could achieve in the circumstances. The court is happy and I am satisfied that we have done our best. With all things considered we could not achieve more,” Spoor said.

He said they had to consider a number of issues, including the fact that the gold mining industry at the moment was in decline, which meant that the companies were getting poorer not richer.

They also had to consider the fact that the sick miners were dying before they could get their compensation.

“We estimate that about 4% of our clients are dying every year. And so to continue this battle for another four or five years you could lose another 15% to 20% of your clients and that really does not help anybody. So, after consulting with our clients and with the other class representatives we decided to accept this final settlement.

“So, is it justice? No, it’s not going to fix everything. But it is an important step. It is significant and will make a difference in people’s lives,” Spoor said.

The compensation

According to court papers, the compensation to be paid to an eligible claimant is determined by a number of factors, including whether it was silicosis or TB-based.

• Silicosis class 1: a claimant who suffers mild lung function impairment will receive R70 000

• Silicosis class 2: a claimant who suffers moderate lung function impairment will get R150 000

• Silicosis class 3: a claimant who suffers serious lung function impairment will receive R250 000. Over and above this a claimant falling into this category could receive a sum of R500 000 at the discretion of the trustees if he has, at least 10 years cumulative employment undertaking risk work on one of the mines of the settling company during a qualifying period.

Meanwhile the TB categories vary from R50 000 to R100 000 claims.

Qualifying claimants included those that would have undertaken risk work on the mines of the settling companies after March 12, 1965 and those who have not resolved their claims previously.

During its judgment the court said: “In this case the compensation amounts each eligible claimants will receive are not insubstantial, while the sum total of the amount to be paid to all of them is certainly sizeable. It is expected to be in the range of R5 billion but could be more.

“The settling companies cannot be accused of failing to appreciate the gravity of the harm the claimants have suffered. Given the nature of compensation in a class action – where the amount paid to a claimant is likely to be on the basis of one size fits all – it would be wrong to seek the perfect amount to be awarded to each claimant.”

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