Light at the end of tunnel for thousands of silicosis-hit miners?
But, challenges still lie ahead before they receive their compensation
In a desperate bid to reach hundreds of thousands of former miners who were felled by TB or silicosis while working in SA’s gold mines, adverts have been sent out across Southern Africa.
The adverts inform the miners and the families of those who have died of the diseases of a R5bn compensation settlement agreement.
In 2018, the Johannesburg High Court, in a precedent-setting judgment, ruled in SA’s first class-action for sick miners that former gold miners who have silicosis and TB, and the families of those who have died, could make claims against the gold mining companies they used to work for.
Mining companies are now going to have to fork out an estimated R5bn to mineworkers after the class action settlement was reached in May.
The agreement was reached between the Legal Resources Centre (LRC)‚ Abrahams Kiewitz Inc and Richard Spoor Attorneys (collectively representing nearly 40,000 mineworkers), and the Occupational Lung Disease Working Group.
The working group represents the mining houses, African Rainbow Minerals‚ Anglo American SA‚ AngloGold Ashanti‚ Gold Fields‚ Harmony‚ Sibanye Stillwater and Pan African Resources mining companies.
But, while many are set to benefit from the agreement, the battle to receive compensation is far from over, with a mountain of challenges still facing former miners and their families.
The biggest challenge is to ensure that those who are eligible for compensation are made aware of the settlement, said attorney Alex Spoor.
While many in SA knew about the settlement, thousands of former mineworkers living in far-flung rural areas in SA’s neighbouring countries did not.
“While the majority of the mines’ labour force came from Botswana, Mozambique and Lesotho, there are many who came from rural areas in countries like Malawi.
“The challenge is going to be to ensure that these people are made aware of the settlement so they can also lodge their claims.”
Spoor said the exact number of possibly affected individuals was still unknown.
“Various studies that have been done put the figures of possibly affected people up to hundred thousands of individuals.
“Any claim made within the 12-year lifespan of the trust will be honoured by the settling mining companies.”
He said the trust was uncapped, meaning that if the total claims amount to more than R5bn, affected miners or their families will still be paid.
In accordance with a court order handed down by the Johannesburg High Court in December 2018, adverts had been placed in the media across the region.
“The adverts explain the proposed settlements and the establishment of a trust fund to disburse claims. They also inform claimants that if they do not wish to be bound by the class action, they must contact the lawyers involved in the case and ask to opt out of the action.
“They explain how claims can be made, who the lawyers are, give indications on where one can obtain the court papers, and provide dates for various upcoming hearings.”
Spoor said there were two hearing dates, which had been scheduled, to look into the fairness of the settlement.
The first date had been set for April 3.
“During this hearing date, if there are no objections to the settlement, then lawyers for the various groups will have to motivate why the settlement is both fair and reasonable. The judges will then deliberate before making their ruling.”
However, Spoor said, they were anticipating possible objections.
“We only have a mandate from our clients. Given the sheer magnitude and number of former miners who worked in the mines, there may still be possible claimants, who are unaware of the finer details of the settlement, who may object or want to have their input into the matter.
“If there are, then a fairness hearing will be heard over three days in May. At the May hearing submissions will be made regarding whether the settlement reached is fair and reasonable.
“The May hearing will look at the establishment of the trust, how it is to be administered, as well as who can claim, how much they can claim and under what circumstances they can lodge a claim.”
Spoor said at the May hearing the court could come to a new decision on the amount set aside under the settlement agreement, “which could be more or less than the R5bn”.
These were just come of the challenges facing potential claimants.
“The management and operations of the trust is going to be vital. The trust will have its work cut out for it, especially in tracking down former mineworkers and verifying medical records and other employment documentation to ensure that people receive the compensation which they are rightfully due.”
LRC Carina du Toit said the greatest challenge they faced was that the number and identity of interested parties who would apply to participate in the hearing was unknown.
“We do not know if they will support or oppose the settlement and, if so, on what basis. We will have to wait until the deadline for filing a notice to participate expires on 20 March before we can assess the nature of the participating parties.”
Bowmans partner Clement Mkiva, who is representing the working group, said they did not foresee any particular challenges or opposition to the settlement, “which is a great settlement”.
“We have gone to all the neighbouring countries including countries like Malawi and Zambia, where the mines’ traditional labour force came from, and advertised the settlement agreement.”
Any opposition to the settlement agreement could affect when the hearings were held.
“During previous court hearings the parties involved expressed upon the court the importance of this matter being resolved soon.
“If there are objections we expect a ruling on compensation will be made in July.”