The disease and context
What is silicosis?
Silicosis is an occupational lung disease (OLD) caused by the inhalation of free respirable crystalline silica dust. Silica dust is present in many industries, including mining and quarrying where quartz concentrations are high, as is the case in many deep-level gold mines. If inhaled, crystalline silica dust may cause a fibrotic reaction (or scarring) in the lung, which results in a restriction of lung elasticity. Silicosis predisposes an individual to the development of pulmonary tuberculosis (TB). The chance of this is increased when an employee is immuno-compromised – for example, if he or she is HIV-positive. Silicosis and TB in silica-exposed employees are considered to be compensable diseases in terms of the Occupational Diseases in Mines and Works Act (ODMWA).
What are its symptoms? How does it develop? Is it always fatal?
Silicosis presents in a number of ways. Clinicians differentiate between acute silicosis, chronic silicosis and accelerated silicosis.
The vast majority of cases fall into the category of chronic silicosis, which manifests only after 10 to 30 years of cumulative respirable crystalline silica dust exposure. Once contracted, the condition tends to progress gradually, even after silica exposure has stopped.
Silicosis is rarely a cause of death. Those affected tend to die with, rather than from, silicosis. But silicosis increases the risk of contracting other infectious respiratory diseases, most commonly pulmonary TB which, if not diagnosed early or if left untreated, could be seriously disabling and even fatal.
Is there a relationship between HIV and silicosis?
There is no known direct link between HIV and silicosis. An indirect link exists due to the fact that both HIV and silicosis pose an increased risk of contracting TB. Individuals with silicosis are more likely to develop pulmonary TB. Both HIV and TB are major public health issues in South Africa.
Undiagnosed and/or untreated respiratory disease carries a far greater risk of future impairment so it is imperative that diseases such as pulmonary TB and HIV are diagnosed early and properly treated. The companies provide comprehensive healthcare services to employees, including regular screening and treatment of TB and HIV/Aids, including education around prevention, screening and testing, and the provision of antiretroviral treatment where needed.
Do all gold mines have silica?
Yes. However the levels of crystalline silica in the ore could vary from one mine to another. Silicosis is generally not an issue in open pit mines where the working environments are not confined and which are mostly mechanised. The vast majority of the world's gold mines outside South Africa are open pit operations. South African gold mines are, in contrast, almost all underground hard rock mines.
How extensive is silicosis on our mines, and among former mineworkers?
There are several estimates in the public domain. Without wishing to understate the serious human impact of silicosis in South Africa, there is a view that these estimates overstated the numbers of silicosis sufferers as they tended to concentrate on groups of former miners in the most affected occupations and with many years of service. No one can be certain of the actual numbers, though, and for this reason we don't believe there is value in speculating.
Our goal is for every employee to return home each day without having suffered any ill-effects at work and for their lifetime. This was the reasoning behind the 2003 Mine Health and Safety Summit milestones, and all our subsequent commitments. It is also the reasoning behind the work we have done to eliminate accidents at work. While every work-related accident or occupational illness is one too many, and we know we have a long way to go, we are gratified at the progress made thanks to co-operation between regulators, our employees and their organisations and ourselves.
What do South African mines do in respect of dust management? How successful have they been? And why are people still contracting silicosis?
The focus is threefold:
- Prevention: Our mines manage respirable crystalline silica at source by means of wet drilling and other engineering controls such as ventilation, dust allaying, filtration at tipping points and centralised blasting to prevent peak exposures. Employees are provided with personal protective equipment (PPE). We have also been constantly improving our standard of dust monitoring, sampling frequencies and dust analysis methods and this has resulted in the incidence of silicosis (ie the number of new cases in a study population in a given period) declining over time. This is also evidenced by the increasing period of exposure before diagnosis.
- Detection and treatment: This includes regular compulsory medical assessments for early detection of the disease and, where detected and possible, transferring individuals into areas with less exposure. The vast majority of silicosis cases are contracted only after 10-30 years of cumulative dust exposure. So current diagnoses are not a reflection of current dust management effectiveness.
- Compensation is the third leg of this work, and will be a major focus of the initiative we have announced.
It's important to note that, given the length of time it takes to contract silicosis, the dust management procedures put in place now are only likely to show results (fewer cases of silicosis) in about 20 years' time.
Are workers supplied with dust masks or respirators?
Respiratory masks are made available to employees where applicable to reduce exposure to inhaled pollutants. It is mandatory for employees to make use of PPE where considered applicable.
Silicosis on its own does not necessarily affect a person's quality of life, particularly in the relatively early stages – which is the case in the majority of gold miners with silicosis and in whom the disease is only detected if they have an X-ray. Undiagnosed and/or untreated respiratory disease carries a far greater risk of future impairment. For this reason, it is imperative that diseases such as pulmonary TB are diagnosed early and properly treated. If they are, this may well result in little or no functional impairment.
The ODMWA, which currently governs compensation of occupational lung disease in the South African mining industry, recognises two degrees of silicosis, based on the chest X-ray and also on the extent of functional impairment.
Does silicosis affect certain job categories of employees?
Employees working in confined, dusty areas where respirable crystalline silica dust is present are more likely to be affected, although precautions are taken to control dust exposure to keep it within Occupational Exposure Limits set by regulatory agencies.
What is the relationship between TB and silicosis, and what is being done about this?
See What is silicosis?. Our company medical services offer comprehensive TB control programmes with preventive, diagnostic and treatment services, and have also participated in some TB research studies in the gold mining sector.
What compensation do silicosis sufferers receive in terms of ODMWA?
Current compensation is a lump sum payment of R105 000 for 2nd degree silicosis and R47 160 for 1st degree silicosis in terms of ODMWA. The combination of silicosis and tuberculosis is classified as 2nd degree.
Mining companies have known about the inefficiency within the MBOD for years – why has nothing been done about this before now?
The operations of the Medical Bureau for Occupational Diseases (MBOD) are a government function, though its funds available for distribution to eligible claimants are sourced from regular employer contributions. Nonetheless, the mining industry's efforts to assist, including through participation in the corporate governance structures of the MBOD, date back to at least the early 1990s.
More recently, in 2004 our companies initiated a dialogue with the Department of Health and organised labour aimed at improving access to compensation for former mineworkers. Part of that Former Mineworker Project, which included a pilot programme being rolled out to assist rural hospitals to develop the capacity to examine former miners and assist them with compensation applications, also involved offering assistance to the MBOD.
In addition, the Chamber of Mines and gold mining companies have provided financial assistance to the MBOD/CCOD (Compensation Commission for Occupational Diseases) to set up "One Stop" occupational health services for ex-mineworkers in Mthatha and Carletonville. The companies involved in the OLD initiative also partnered with the MBOD to launch Project Ku-Riha
Why did the companies oppose improvements to ODMWA benefits over the last 20 years?
We have actively lobbied for improvements over the years. The adequacy of the compensation, and necessary legislative changes, which raise complex issues, will be discussed in the process we have initiated. Our preferred goal is that all current and future employees should be covered by the Compensation for Occupational Injuries and Diseases Act (COIDA), and we are in discussions with government on how to achieve this.
Do you know where these silicosis sufferers are? Have any attempts been made to trace them? And is any support provided to former employees who now have silicosis?
The Former Mineworkers Project pilots were a positive step in identifying the work that needs to be done. The Department of Health's initiative to establish one-stop occupational health centres, in which the companies are co-operating, is another example. We are sure there will be further progress emerging from this initiative.
In addition, our companies' occupational health facilities provide free medical benefit examinations and medical care where required to any current or former employees presenting themselves.
Details of litigation
Background to the Class Application
In 2012 and 2013 the following class applications were instituted:
- The Abrahams class application: In August 2012 three separate applications against each of AngloGold Ashanti, Gold Fields, Harmony and their respective subsidiaries were instituted in the South Gauteng High Court (the “High Court”) by applicants represented by Abrahams Kiewitz who say they represent approximately 6,000 claimants and are supported in these applications by the US law firm, Hausfeld LLP.
- The Spoor class application: In December 2012, applicants represented by Richard Spoor attorneys, who say they represent approximately 23,000 claimants and are supported by US law firm Motley Rice, instituted a class certification application in the High Court against 30 mining companies.
- The LRC class application: In March 2013, 13 applicants represented by the LRC instituted a class certification application in the High Court against Anglo American South Africa.
- In 2013 the Abrahams, Spoor and LRC class applications were consolidated into a single class application against 32 mining companies including African Rainbow Minerals, Anglo American South Africa, AngloGold Ashanti, Gold Fields, Harmony, Sibanye and their respective subsidiaries (the Working Group companies).
The applicants in the Class application are applying for the certification of two classes:
- a silicosis class comprising current and former mine workers who have contracted silicosis, and the dependents of mine workers who have died of silicosis; and
- a tuberculosis class comprising current and former mineworkers who have or had contracted pulmonary tuberculosis and the dependents of deceased mineworkers who died of pulmonary tuberculosis.
The Working Group companies and other defendant mining companies are all opposing the class application.
It should also be noted that no amount of damages has been specified yet for any of the claimants in the class application.
Status of the class application
The class application was heard in the South Gauteng High Court from 12 to 23 October 2015. On 13 May 2016 the High Court ordered, among other things:
- The certification of two classes of current and former mineworkers and dependents of deceased mineworkers who worked on one or more of the South African gold mines listed in the order:
- those with silicosis or who died from silicosis; and
- those with TB or who died from TB.
The defendant mining companies all applied to the High Court for leave to appeal to the Supreme Court of Appeal (SCA) and on 24 June 2016 the High Court ruled that they all:
- Be granted leave to appeal to the SCA the ruling that the common law be developed in relation to transmissibility of general damages, since there was a reasonable prospect that the SCA could reach a different conclusion;
- Be refused leave to appeal their ruling in relation to the certification of a Silicosis class and a TB class.
The defendant mining companies all petitioned the SCA for leave to appeal to the SCA and on 13 September the SCA ruled that the defendants be granted leave to appeal the entire order previously issued by the High Court.
A date has not yet been set for the SCA hearing.
The High Court judgement
The judgment by the High Court certifying the class action did not deal with the merits of the claims against the companies. The certification judgment gave the claimants permission only to bring their claims as class actions. In any event, the High Court’s ruling has been taken on appeal to the Supreme Court of Appeal.
The Working Group companies believe that the High Court judgment addressed a number of complex and important issues – including a far reaching amendment of the common law – that had not previously been considered by other courts in South Africa. The High Court itself found that the scope and magnitude of the proposed claims was unprecedented in South Africa and that the class action would address novel and complex issues of fact and law. The companies applied for leave to appeal the judgment because they were of the view that the court’s ruling on some of these issues is incorrect and that another court may come to a different decision.
However, we believe that the High Court judgment is flawed and should be reviewed by the Supreme Court of Appeal. We are not appealing against the High Court judgment to delay the certification of the class. The precedent set by the High Court leads to very wide, unmanageable classes and will create issues for both claimants and respondents in the future.
The Working Group companies are conscious of concerns that the appeal processes will delay the finalisation of the matters. In an attempt to shorten any delay brought about by these applications for leave to appeal, the Working Group companies have requested that the appeals be dealt with on an expedited basis.
The respondents are opposing the class action application because they genuinely believe that it is not the best mechanism to address the legacy of occupational lung diseases (OLD). The companies believe that there are better ways of providing compensation and medical care to the ex-mineworkers affected by OLD and this can be achieved without a lengthy and expensive court action. The Working Group member companies remain of the view that achieving a mutually acceptable comprehensive settlement which is both fair to past, present and future employees, and sustainable for the sector, is preferable to protracted litigation.
Although the statutory compensation system is flawed we believe that it remains the better compensation option to court action (quicker, simpler, and more effective). We have spent a lot of effort, time and money in addressing the administrative issues at the MBOD / CCOD. We have also been actively involved in seeking alternatives to ODMWA (e.g. participation in the working groups to transfer current mineworkers to COIDA)
In addition, the Working Group will continue with its efforts – which have been ongoing for more than two years – to find common ground with stakeholders, including the claimants’ legal representatives.