Silicosis lawsuit filed against South Africa’s gold miners. After decades of chronic and systematic neglect of mine-related diseases, a bold class action suit was filed in August on behalf of up to half a million black mineworkers, who had been worked to death or sent home to die from gold dust related diseases. Three transnational companies, AngloGold Ashanti Limited (formerly Anglo American), Harmony Gold Mining Company Limited, and Goldfields Limited will have to answer why the workers were never protected or compensated. Cape Town based attorney Charles Abrahams, who brought the case, is also a driving force in another global class action lawsuit, the nearly decade long bid to hold transnational companies accountable for allegedly aiding and abetting apartheid, pending before a New York judge.

A!: What is the significance of this case?

CA: It is important to first give the socio-economic and political background as well as the history of mineworkers in the gold mines before we talk about the case. Even though that history has been documented over many decades the documentation on black mineworkers contracting occupational lung disease is virtually non-existent. There are very specific reasons, one being that these mineworkers were only an afterthought as they were part of a migratory labour system based on a political and economic model of exploitation. This is in contrast to white miners’ medical records, which were well documented for many legal and compensational reasons. Over the last 100 years, black miners went into the mines with no real concern on the part of the state or corporations for their well-being. Epidemics emerged at various intervals over the past century and when scientists started to investigate them, they discovered one of the greatest tragedies.

A!: Who was responsible?

CA: The system was simple: mines used an agency called the Employment Bureau of Africa (EBA), in place since the early 1900s. Their principal task was to recruit black labour, both in South and Southern Africa. They aimed for very strong healthy men from villages and brought them to the mines in the Witwatersrand. Before undergoing training, these men were subjected to the most humiliating forms of medical examination and were treated like animals to assess fitness. They were then housed in the most despicable conditions, not fit for humans. And that’s where they would spend most of their lives, for 10, 20, 30, sometimes up to 40 years.

Moreover, they were sent underground with only a very short course to prepare them for the reality of what was in the mine, how to use the equipment etc… no briefing on protection, particularly against the dust, or safety hazards that they would encounter. Subsequently, they were subjected to more forms of exploitation as they were treated as subalterns to the white miners, who were invariably their supervisors. This class action is about the health aspects of the story, but we could also complain about the lack of protection against injury.

A! Why is the health aspect so important?

CA: After 10, 15 or 20 years of service, the miners would go home. They were employed on year-to-year contracts, so that over a 20-year period they would have had 20 contracts with a specific mine. Every year they would undergo an exit medical exam. Initially, when a miner first started showing symptoms of tuberculosis or silicosis he would immediately be repatriated back to his village. Yet the mining companies soon realised they were repatriating their most experienced miners and started to keep on sick workers. A miner would be hospitalised for three months and go back to the very same job, because the company couldn’t replace that kind of expertise over a short period of time.

They effectively worked the miner until he could no longer work. Only when a mine doctor certified that a miner could no longer work was he repatriated or retrenched and sent back home.

At that point, the mining company paid out whatever pension of a little provident fund was due to the miner and then washed its hands of all obligations to him.

The majority of miners went back to their rural homes and to other Southern African countries with no form of support. Health systems in those areas weren’t equipped to detect the kind of diseases that they had. Even if they could, there was no further support in the form of either lawyers or anyone to assist miners in filing claims with a compensation fund.

The result was that many died without their families getting any form of support. Those who survived still live in the most impoverished conditions, while the companies declare super profits, year after year.

A! How did the case come about?

CA: Six years ago, my colleague lawyer Richard Spoor and I decided to take on the challenge of one mine worker and to take the case to court as a test case with potential for a class action suit on behalf of hundreds of thousands of miners. We started off with a miner called Mr Thembekile Mankayi, who worked for AngloGold Ashanti for a number of years and had contracted chronic obstructive pulmonary (lung) disease, COPD. We summonsed AngloGold Ashanti on the grounds that they had failed their common law and statutory duties. They opposed the matter and said we had to claim from the compensation fund. But we refused and eventually took the matter to the High Court in Johannesburg. The judge agreed with AngloGold Ashanti so after losing that fight, we took the battle to the Supreme Court of Appeal. Our claims were rejected again. We thus had to take the matter to the Constitutional Court, which unanimously overturned the decision of both the High Court and the Appeal Court. This opened the door to our case.

In the week of 21 August 2012, we filed an application on behalf of all mineworkers who have worked for AngloGold Ashanti, Harmony Gold Mining Company and Gold Fields, and who contracted occupational lung diseases while working for them.

A!: What are your main heads of argument?

CA: They have breached and violated common law, statutory law and, more recently, constitutional rights. We’ve focused on the gold mine simply because of the nature of the illnesses and of silicosis; it’s something specific to the gold mine.

A!: What would be the ideal outcome and the implications?

CA: The ideal outcome obviously is compensation for as many, if not all, of the workers who contracted occupational lung disease, both those who are alive and those who have passed on so that their dependents can benefit. We obviously need to see a completely new mining system, particularly in relation to health damages on the mine. Even though there is the new Act of 1996, … the rate at which new cases are coming to the fore, means it is highly unlikely that the government or the industry might be able to achieve its eradication.

A!: Is there any compensation for women, for the wives and widows of miners?

CA: The consequences for women have been devastating on various fronts. One, when the miners leave their rural areas, they leave the households and don’t return for more than a year. The women are left on their own and one sees the disintegration of the family’s social cohesion. The men live in the most abnormal conditions which invariably invites them to have relationships with other women, and with other men. The environment becomes the breeding ground for the worst kind of diseases…I think we’re hoping to look at HIV in the context of what this institutionalised system has created. Tuberculosis goes without saying. When the men go home, they infect their partners and that’s how diseases spread. But there is absolutely no compensation for women.

A!: Could we imagine a Truth and Reconciliation Committee (TRC) for the minerals-energy complex?

CA: I think we’ve lost a very important opportunity with the TRC, particularly with the recommendations on, for example, a wealth tax (which government rejected). I’m not sure if that in the context of mining we need a reconciliation process. We cannot reconcile. There are objective facts and the reality that stands out there. We need to readdress the fundamentals at both a political and an economic level. We need the commitment to fundamentally reconsider and reconfigure the status quo. The people that have built the vast majority of this country and continue to do so have not only been marginalised, they’ve been destroyed and they continue to be. We need to address the fact that the policy in existence allows that to happen. The only thing we have is the law, and we’re using it to as best as we can to push boundaries so that we can make significant strides in obtaining social justice.