CAPE TOWN – The Chair of the Occupational Lung Disease Working Group representing the six producers involved in the silicosis class action lawsuit, is optimistic they will have a big announcement to make regarding a settlement or solution later this year.
Graham Briggs, the previous chief executive of Harmony, is now representing the six mining companies (referred to as the Working Group) being sued in the class action case instituted against them on behalf of silicosis sufferers.
The companies represented include African Rainbow Minerals, Anglo American, AngloGold Ashanti, Harmony, Gold Fields and Sibanye.
Speaking at the Mining Indaba in Cape Town on Wednesday, Briggs said: “The Working Group believe that during the course of 2017 we, and our stakeholders, will have substantive news to report on material achievement on the future compensation of claimants. We are optimistic because we are working together, and we are continuing to talk to the class action lawyers, the various unions, and the claimants lawyers,” said Briggs.
In theory, it should be in no one’s interest to continue with a long drawn-out legal process, one that has been over a decade in the making and which could quite possibly run another decade given the challenges a case of this nature presents. The claimants and their families could use the money a settlement would provide, while the companies implicated would be able to put the matter behind them and focus their attention on mining. The resources of the judicial system could easily be applied elsewhere if a settlement came about.
The period contested in the class action case dates as far back as 1965. So the issue of what records there are to prove an individual worked on a mine, as well as what may have caused their death, is a tricky one from the perspective of who can be included in the class action.
For this reason, no one really knows how many silicosis sufferers there are. Some estimate the number affected could be as large as 100 000 or 200 000. Because most of the mines were located on the highveld, the men were sourced from as far afield as the Eastern Cape and Mozambique through what became known as the migrant labour system.
Many of them would have returned to their homes once they had finished working, or when they became so ill they could no longer continue working. The mines themselves have also been closed down and sold to other companies, making the concept of who exactly is liable for each individual a complicated undertaking.
Statutory compensation has already been awarded and funded
Briggs was at pains to point out that the first part of the compensation for silicosis sufferers has from a statutory and funding point of view, already been put in place. “The uproar about claimants not receiving settlement is simply not true. Through ODIMWA (the Occupational Diseases in Mines and Works Act), we have the money, we just need to find the people and pay them.”
The implicated mining companies have set aside funds based on a per shift contribution (equating to about R8 per worker per shift) to a fund under the control of the Department of Health, which currently amounts to approximately R3.7 billion.
ODIMWA also states the quantum of the fixed payout based on what degree of silicosis the claimant has contracted. For first degree effects, the claimant receives R47 000, while for the second degree, this rises to R105 000 per person.
Due to administrative neglect, the money has not been paid out as quickly as it should have been. “The Chamber of Mines has spent a lot of money digitising the administrative component of the process. But then the system relies on being able to find the person, conducting the medical tests to assess them, and then pay them,” Briggs explained. “It is working better but not fast enough.”
A settlement will ultimately involve the creation of a legacy fund
Whatever settlement is reached between the Working Group and the lawyers of the claimants will ultimately result in the creation of a legacy fund. Its objective will be to “top up” the compensation agreed to by the parties, after taking into account what ODIMWA has already paid.
The apex of this discussion will be reliant on a figure the parties agree to per individual affected. That might not be so easy.