'If he dies we will suffer': silicosis victim desperate for payout
After the historic court victory, all Mthuthuzeli Ncgawa wants is to leave something for his family
Blind and wracked by the lung disease silicosis, Mthuthuzeli Ncgawa, 64, has one hope: that the compensation he won for working on the mines is paid while he is still alive.
“He wishes they can pay him soon so when he dies he can leave something,” said his daughter, Amanda Ngcawa, after the first class-action settlement yet in South Africa was reached on Thursday.
The family, who live in a rural area at King William’s Town in the Eastern Cape, were jubilant when they heard Mthuthuzeli had won compensation for damage incurred working on the mines from 1974. His wife and carer, Nonkoliseko Ngcawa, said: “We are so excited. W were glued to the radio as it was announced.”However, she added: “My husband said he had hopes that the payment could made while he is still alive ... he can’t wait to see the day … He is coughing a lot.”
The ravages of the disease weigh heavily on the family – not least financially.Amanda, who dropped out of university in 2007, said: “I couldn’t even go to school because he couldn’t afford fees to pay for university.”Her father had not even received his provident fund when he left work. “If he dies, we will suffer because we depend on his old-age grant.”
Amanda reiterated that Mthuthuzeli’s health is terrible.
“It's bad; when it’s late he starts coughing until morning.”
The class-action settlement was reached between Abrahams Kiewitz Attorneys, Richard Spoor Attorneys and the Legal Resources Centre – which represented tens of thousands of mineworkers who developed silicosis or TB from mining from 1965 – and the Occupational Lung Disease Working Group.
The group represented African Rainbow Minerals‚ Anglo American SA‚ AngloGold Ashanti‚ Gold Fields‚ Harmony‚ Sibanye Stillwater and Pan African Resources.
The companies will make an initial contribution for benefit payments of R1.4-billion for the first two years of benefit payments‚ the Legal Resources Centre said.
The High Court in Johannesburg must now confirm the draft settlement, which is expected around September.
Long time coming
The settlement took more than two years to negotiate, but it has been more than 15 years in the making.
In 2003, the Legal Resources Centre started the lawsuit after gold miners from the Free State’s President Steyn Gold Mine approached them.
Legal Resources Centre director Janet Love said: “Our clients hailed from the Free State, Lesotho and remote areas in the Eastern Cape. They had contracted silicosis and some had consequently also contracted tuberculosis (TB).
“The litigation was delayed for over six years, primarily as a result of procedural objections raised by the mining company.”But the centre was able to prove that even though Anglo American had small shares in the mine, it did manage it and set standards for safety, and was therefore responsible for workers’ injuries.
The court ruled in 2011 that mine companies were liable for health damage caused to mineworkers, which allowed the lawyers to argue that mine companies were responsible for the ill health of hundreds of thousands of miners.
The responsibility to pay damages applied even if the mining company had since sold the mines.
However, there was a case that laid the groundwork.
In 2006, lawyers Richard Spoor and Charles Abrahams from Abrahams Kiewitz Attorneys took the test case of a single miner, Thembekile Mankayi, to court asking for compensation from Anglo Gold Ashanti.
The mining firm argued that the Compensation for Occupational Injuries and Diseases Act states that no employee may sue in employer for occupational injury, explained Spoor.
But while Anglo Gold Ashanti won in the high and supreme court, Spoor and Abrahams won in the Constitutional Court in March 2011, arguing that miners fall under a different law since they are regulated by the Occupational Diseases in Mines and Works Act.This act doesn’t specify that mineworkers cannot sue employers for damages.
That ConCourt victory laid the groundwork for the later case, said Abrahams.
There are 10 classes of complainants who will be paid between R70,000 and up to R0,5-million in exceptional cases of severe illness. The families of mineworkers who died from TB or silicosis will also get paid.
Abrahams said: “The settlement payouts are significantly higher than statutory compensations - about two-and-a-half to three times higher."
Miners with less than 10% of their lungs damaged by silicosis will receive R70,000, but under current compensation law they would get nothing.
Legal Resources Centre attorney Carina du Toit said Rand Gold Exploration and DRD Gold chose not to settle, but the centre would continue to fight them in court.
DRD Gold CEO Niël Pretorius said: “It is correct that DRD Gold has not settled. Should the plaintiffs decide to continue their claim against DRD Gold, it is DRD Gold’s intention to defend the action.”
Rand Gold Exploration denied it was in any way involved. Spokesperson Brian Gibson said: “Rand Gold Exploration were not party to settlement negotiations as we had no controlling interest in the affected mines and only an indirect interest for a period of three years. Nevertheless we welcome the settlement.”