Justice for mineworkers
Mankayi v AngloGold Ashanti (2011)
In a constitutional democracy, what is rightful compensation for mineworkers who contract terminal illnesses while working underground?
They would blast and blast and then just send us in, without waiting for 15 minutes. There was dust everywhere. We were not even given masks. It feels like I have stones in my lungs. And the doctors say it won’t get better.
Siponono Phahlane
Mineworker, 4 September 2012
Background
South Africa has mostly been built from the proceeds of its lucrative mining industry, but it has come at a high cost for the workers who risk their lives every day to go underground. Research suggests that as many as one in two former gold miners has silicosis – a lung disease caused by the inhalation of dust containing silica.
Thembekile Mankayi was one such mineworker. He worked underground from 1979 until 1995. He contracted silicosis at the age of 37 and was eventually unable to walk. After 15 years of service, he received R16 320 from AngloGold as compensation in terms of the Occupational Diseases in Mines and Works Act 78 of 1973 (ODIMWA).
Mankayi took AngloGold to court. He argued that despite obtaining compensation in terms of the ODIMWA, there was no provision in the Act which precluded him from suing AngloGold. He sought damages against AngloGold to the value of R2.6 million for his debilitating lung disease. Mankayi also maintained that AngloGold had breached its duty to provide a safe and healthy working environment.
AngloGold argued that Mankayi had no claim because he fell within the provisions of another piece of legislation – the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) which specifically excludes employees from instituting civil claims for damages against their employers.
Path to the Constitutional Court
Mankayi first sued the mining company in the South Gauteng High Court and claimed damages in the sum of about R2.6 million. This comprised past and future loss of earnings of R738 147, future medical expenses of R1 374 600 and general damages of R500 000.
The High Court held that Mankayi’s claim of damages against AngloGold was barred by the clear wording of the COIDA. The findings of the Supreme Court of Appeal, and its approach, broadly accorded with those of the High Court.
Mankayi then appealed the matter to the Constitutional Court. The Court had to decide whether, in light of the provisions of the ODIMWA and the COIDA, Mankayi could sue AngloGold for damages.
Some of the Arguments
Thembekile Mankayi
Mankayi argued that despite obtaining compensation in terms of the ODIMWA, there was no provision in this Act which precluded him from suing AngloGold.
Anglo Gold Ashanti Ltd
The mining company argued that the COIDA extinguishes the right of mineworkers to recover damages against mine owners, even though they are covered by the ODIMWA, and as such are not entitled to make the claim.
We literally are talking about tens of thousands of people who have become sick or who have died as a result of this disaster. It is the biggest and longest-running industrial disaster in human history.
Richard Spoor
attorney for the mineworkers, 4 September 2012
What did the Constitutional Court decide?
“Where the person suffering from a compensatable disease has been paid the lump sum, the dependants get nothing even if they are children. To make matters worse, the person who finds himself afflicted with a compensatable disease merely because of legislative classification, has no right to claim additional damages even if the employer was negligent, a right that is preserved for employees who suffer occupational diseases.”
-Justice Sisi Khampepe, from the Mankayi judgment, 3 March 2011
Impact and Significance
Mankayi did not live to see the judgment. Sadly, he succumbed to the disease he contracted while working at the mine four days before the judgment was handed down. The decision from his case, however, gave rise to the biggest class action lawsuit on behalf of all former mineworkers who suffer from silicosis against mining companies.
Following the Mankayi judgment, the High Court in Johannesburg certified the first class action in South African history for sick workers, allowing miners suffering from silicosis and tuberculosis to proceed with their claims against thirty big gold producers, including AngloGold Ashanti, Harmony Gold, Gold Fields, Anglo American, and African Rainbow Minerals. Few class actions have been brought in South Africa, and none have been filed on behalf of sick workers.
A class action lawsuit is a lawsuit in which a large number of people with similar injuries sue one or several people, corporations. The group of people (the “class”) alleges that the corporation is responsible for causing the harm that was suffered by members of the “class”.
The silicosis class action included thousands of people – all gold mineworkers suffering from silicosis or tuberculosis, and the dependants of deceased miners who ultimately died after contracting the often-fatal disease.
A pervasive culture has existed for decades in the mining industry that views these miners as disposable. Therefore, it has been a privilege to represent them and offer a voice to thousands who have never had one and who have been ignored by society. This class action is proof that when we push for what is right … for those harmed, we can achieve real reform and in this case, overdue improvements to a broken system that has been in place for decades in the pursuit of justice.
Richard Spoor
attorney for the miners, 4 September 2012
The decision to certify the class action was a step towards ensuring that the litigation against the mining companies could continue. Twenty-five thousand individuals were represented in this case. The number of class members who stood to benefit is estimated at between 100 000 and 200 000 people.
On 3 May 2018, a historic settlement of over R5 billion was reached between the mining companies and mineworkers and their dependants. The draft settlement which was signed in Johannesburg provides for medical examination and compensation to mineworkers who worked in gold mines from 12 March 1965 to date. The settlement is subject to certain suspensive conditions, including the agreement being approved by the High Court.
Once the settlement is approved by the High Court, a trust will be set up to do the work of finding the potential claimants and facilitating the process. Mining companies will contribute R845 million in administration costs to the trust.
