Mining Houses blocking implementation of Silicosis Class Action Settlement

Justice forMiners Campaign Press Release: 22 November 2024

ForImmediate Release

Mining Houses blocking implementation ofSilicosis Class Action Settlement

A largelyunnoticed press statement from the Tshiamiso Trust dated 31 August 2024 revealsthat ongoing disputes amongst the Trustees of the Tshiamiso Trust  have led to claimants not being paidcompensation:  “The Tshiamiso Trusttoday announced significant delays in processing thousands of claims todetermine their eligibility for compensation” . The delays are caused bydisagreements about the interpretation of clauses in the Tshiamiso  TrustDeed, “ several difficulties arise in the interpretation and practicalapplication of some of its provisions .“ (TT August 2024)  In a rare admission of failings addressed by JusticeFor Miners (JFM) since 2020 the statement goes on to say  “As Trustees, we understand that thesedelays have caused considerable hardship and frustration for many claimants”(TT August 2024).

Who iseffected?

Accordingto the Tshiamiso Trust statement , “While these delays impact somecategories of living ex-mineworkers, the dependents of deceased mineworkersare affected the most, with only 14% (2,613) of the 18,727 claims paid to datebeing for deceased mineworkers.”

What isat stake?

Thedisputes of interpretation addressed by the TT statement  are all concerned with what evidence isrequired to compensate ex-miners suffering from silicosis and TB or theirwidows and families. MiningCompanies want to make access to compensation as difficult as possible and payout as little as possible. Their aim to pay out as little as possible of theallocated R5 Billion is driving the conflicts of interpretation and resultingdelays.

Accordingto the TT statement, “These protracted proceedings consume significantresources and impact the Trust’s ability to process impacted claims, thuspreventing many claims from advancing to the payment stage” (TT August2024).  

Instead ofhonouring the spirit of the out of court settlement and paying faircompensation mining companies are spending money to secure legalisticinterpretations under the guise of insuring that all actions of the Trust arewithin the ambit of the law, i.e. legal rather than illegal.  Mining companies do not want to setprecedents for fair payments which would open the road for large numbers ofclaimants being paid.  Instead theinternal conflicts and delays benefit the mining houses as uncompensated sickminers are dying with every passing month.

DeathCertificates:

The disputethat death certificates serve “as the sole source document to determine theprimary cause of death”. (TT statement August 2024) or not .  As death certificates issued in SouthAfrica and the neighboring countries very rarely state silicosis and TB as thecause of death the strict application of this provision of the trust deed inisolation from other provisions and judgements effecting the trust Deed willeffectively exclude hundreds of thousands of claimants from compensation.

Post-Mortem Reports

TheSA government’s National Institute of Occupational health issues reports on thepresence of silicosis and TB in the lungs of deceased miners. The dispute is about whether NIOH Post-mortem Examination Reports “canbe used to determine the primary cause of death where Silicosis and/or TB isreferred to in the Main Findings of the post-mortem examination,irrespective of whether it is stated as the Clinical Cause of Death” (TTAUG 2024).  Thus, if a post-mortemreport of a miner states in the Main Findings that the miner died fromSilicosis/TB  but mentions e.g. heartfailure as the Clinical Cause of death then, mining company representatives onthe Tshiamiso Trust  will insist thatonly the Clinical Cause of death may be considered to determineeligibility for compensation.   Thiswould  absolve the  mining houses from paying compensation in countlesscases of miners whose Clinical Cause of death does not mention Silicosis/TBalthough the Post-mortem reports contain clear diagnoses of Silicosis/TB.

Tuberculosis(TB) Claims

“Whetherall qualifying mineworkers who developed permanent lung impairment fromwork-related TB should be included, regardless of when they wereexamined and diagnosed with this impairment by an Accredited Practitioner” (TTAug 2024). Thiseffects miners with TB only diagnosis certified by the MBOD (the government’sMedical Bureau of Occupational Diseases). The dispute refers to a clause in theTrust Deed which stipulates that TB diagnoses will be taken into account forpaying compensation if these diagnoses were done within 12 months of the minerhaving been employed by a qualifying mine.  TB diagnoses from legal  MBOD certificates should be recognizedwithout question by the Tshiamiso Trust.  Instead, mining house representatives areinsisting on a narrow application of compensation criteria for TB in order tosignificantly reduce the numbers of claimants who should be paid.

ApprovedMBOD certificates under ODMWA (Occupational diseases in Mines and Works Act)

Minerssuffering from silicosis and TB certified by the MBOD under ODMWA, wereconsidered “the low hanging fruit” category of claimants who would bepaid out as soon as the Trust was operational in 2019.  This was a commonly accepted understandingamongst Claimants Representatives and some trustees.

Thousandsof claimants have been waiting and some have died while waiting as the TT isinsisting that; “the Trust should first assess the underlying medicalrecords on which basis the ODMWA Certificate was issued” (TT August 2024). Thisissue is effected by the difficulties of finding the medical records given overa century of negligence by both mining houses and  the MBOD in the keeping of  medical records of miners made ill by SouthAfrica’s gold industry.  Should thedispute be won by those who want to assess and likely dispute the underlyingmedical records it is clear that many more will be excluded from receivingcompensation.

The out ofcourt silicosis class settlement covers gold miners effected by Silicosis andTB  reaching back to 1966. Up to 1996,white miners were examined  by the MBOD (MedicalBureau of Occupational Diseases) where lung function tests could be done.  Black miners, however, had their medicals donewithout lung function tests at mine hospitals.  Medical records generated at mine hospitalswhich have been closed in the wake of mines closures were mostly lost or destroyed.  Medical records  generated by the MBOD are more likely to beretrieved.  Thus, to insist onconsideration of medical records on which MBOD medical certificates were based,would privilege white miners and exclude the large majority of black miners.The benefit of excluding large numbers of black miners deserving compensationis clearly an advantage for the mining companies.

Contextsand Remedies

When theout of court settlement that gave rise to the Tshiamiso Trust and approved bythe Gauteng High Court, Judge Vally’s Judgement directly addressed the issuethat is fueling the current delays and disputes.  Turning to the difficulties that widows andex-miners have in acquiring medical records and employment records andnoting the negligence of the MBOD and mining companies with regard to recordkeeping, the judgement directs the Trust to “err on the side of paying ratherthan not paying”. This should be religiously adhered to by the Tshiamiso Trust.

TheSilicosis and TB settlement was hailed by mining companies and the MineralsCouncil (Chamber of Mines) as a great achievement and a movement towardsaddressing the “legacy issues” of mining in South Africa. Considering the scaleof destruction brought upon families and communities across Southern Africa bythe knowing and willful exposure of miners to silicosis and TB by miningcompanies for the last 120 years and considering the low amounts ofcompensation awards, the settlement was disappointing for claimants and apropaganda marketing coup for mining companies.  Having gotten away with murder, the miningcompanies have since approached the implementation of the settlement withoutremorse or goodwill.  Instead they havecontinued the legacy of impunity and arrogantly imposing their“law”/interpretation of law onto the Southern Africans they have already harmedso severely.

The Trustconsists of 2 trustees appointed by the claimants representatives, 1 trusteerepresenting government, 3 trustees appointed by the mining companies , aCompanies’ agent, a Claimants’ Representative and a Chairperson.

The TrustDeed makes provision for changes to the deed which can be voted on and must beapproved by the Master of the Gauteng High Court. To date, 6 amendments havebeen made to the Trust Deed (TT August 2024).

Each of theabove issues can be resolved by clarifying and/or removing specific clauses andthereby facilitating the speedy payment of compensation to thousands of widowsand ex-miners who have been made to suffer unnecessarily.  Dr Barry Kistnasamy (SA Gov representative onTT Trust), Richard Spoor (Claimant’s representative), Dr Kisting and Mrs Love(trustees appointed by Claimants Representatives) and TT Chair Prof MayHermanus should insure that these “disputes” are immediately resolved in  the interest of the ex-miners and theirfamilies.

In 2023,JFM brought the above and a number of other issues to the attention of theMaster of the Gauteng High Court with the request to investigate the TshiamisoTrust’s implementation of its mandate.  Weagain call on the Master of the High Court to intervene and ensure that justiceis served.  We call on civil society andthe governments of South Africa, Lesotho, Mozambique, Botswana and eSwatini todefend their citizens and those who on whose backs the wealth of South Africawas created  by exerting pressure on theTrustees of the TT to resolve the current and other similar disputes in theinterest of ex-miners and their families.

Contacts:

JFM chairperson:  Bishop Jo Seoka jfmchairperson@justiceforminers.org (+27 82 893-1378)

JFMAdvocacy: Ms Catherine Meyburgh jfmadvocacy@justiceforminers.org (+278329930090

JFM EasternCape Chapter: Ms Ziyanda Manjati Jfmeasterncape@gmail.com (+27 73391-1431)

JFM LesothoChapter:  Ntate Booi Mohapi: booimohapi@gmail.com (+26662100688)

JFM FreeState Chapter and Medical advisor: Mrs Janet Kahn and Dr Rhett Kahn rhett.kahn@gmail.com & rkahn@icon.co.za (+27 82 772-9850)

JFMBotswana Chapter: Mr Robert Letsatsi: botswanawatch@gmail.com  (+267 71 702 508)

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