08 March 2011

Court ruling spells trouble for mines

A Constitutional Court ruling in favour of the late Thembekile Mankayi has enabled mine workers to sue for health damages under common law.


A Constitutional Court ruling in favour of the late Thembekile Mankayi - a miner who sustained a lung disease while working at AngloGold Ashanti between 1979 and 1995 – has enabled mine workers to sue for health damages under common law, opening the door to a litany of legal claims against the mining industry.

Mankayi lodged a civil claim of more than R2,6-million after he had been compensated through the Occupational Diseases in Mines and Works Act 78 of 1973(ODIMWA). The court had to decide whether miners who had been compensated under the ODIMWA could further claim compensation from their employers, or whether a section of the Compensation for Occupational Injuries and Diseases Act precluded common law claims.

Mankayi died on February 25 at the age of 53 of respiratory problems according to the Daily Dispach, a mere week before the Constitutional Court ruling.The judgment, however, allows Mankayi’s family to return to court and institute his initial R2.6million claim against AngloGold Ashanti.

Mining companies could now face potential liabilities associated with lung disease in particular, Mining Weekly Online reported Mankayi's attorney, Richard Spoor, as saying.

"There are between 300,000 and 500,000 ex-mine workers in South Africa who suffers from these diseases, so the potential liability is huge, with examples of earlier cases achieving settlements of up to R700-million," he noted.

Battle over compensation

Mankayi claimed damages in terms of the common law from the mining company where he worked as a miner from 1979 to 1995.

During his work underground he was exposed to harmful dusts and gases (see below) which, according to him, caused serious lung and air tract diseases. Mankayi's work was classified as risk work and he was awarded R16,320 compensation in terms of ODIMWA.

When he sued for damages in the High Court under common law, the mining company argued that he was prohibited from suing an employer for common law damages arising from disease resulting in the employee's death or disablement in terms of the Compensation for Occupation Injuries and Diseases Act 130 of 1993. The High Court held that the compensation law prevented Mankayi from claiming damages, which was confirmed by the Supreme Court of Appeal.

However, Mankayi turned to the Constitutional Court where he submitted that the mining law and the compensation law were not part of one compensation system as found by the Supreme Court of Appeal. He argued that his view on the matter better promoted the spirit, purport and objects of the Bill of Rights as required by section 39 of the Constitution.

Mankayi contended he did not receive compensation in terms of the compensation law but in terms of the mining law and that he should therefore be able to sue in terms of the Compensation for Occupation Injuries and Diseases Act 130 of 1993 as well.

The dangers of mining

"Gold miners face two major risks related to the underground environment that affect the lungs," explained Dr Dave Clark, Deputy CEO of the Aurum Institute. "Silicosis, a fibrotic disease of the lungs caused by exposure to silica dust, and tuberculosis, an infectious disease that is strongly correlated to silica dust exposure and the general socioeconomic environment associated with mining."

Silica dust is created from the drilling and blasting of the gold-bearing ore and then breathed in by workers underground. Tuberculosis (TB), which destroys lung tissue, is at epidemic levels in gold mining populations, with rates of active disease varying between 2 % and 6% of workers, compared to 0.5 % to 1% in the general population.

"The two diseases, silicosis and TB, are in turn aggravated by HIV disease. Untreated, more than 40% of people who are HIV-infected will die of TB. The rate of death from TB in gold miners is 13 times higher than that caused by mining accidents," said Clark.

Whilst the gold mines typically have among the best TB screening and treatment programmes in the world, the triple threat of HIV, silicosis and TB places miners at high risk of lung disease and debilitation or death compared to the general population.

The Aurum Institute has been the vanguard of research into mining-related infectious diseases and silicosis since 1992. Included in its work are research into the epidemiology of silicosis and TB, the treatment and prevention of TB and HIV, and the prevalence of TB and silicosis in ex-miners.

Its flagship project at present is the Thibela TB study, a study of using a standard TB drug, Isoniazid, to prevent TB in over 27,000 mineworkers and involving more than 80,000 workers in total. The study is nearly complete with final results expected to be published in early 2012. - (Wilma Stassen, Health24, March 2011)

Sources: Sapa, Mining Weekly, Daily Dispatch

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