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Court rules in favour of AngloGold in R2,7m silicosis case.
Mining News of 27 June 2008. 'The Johannesburg High Court,
on Thursday, ruled in favour of gold-miner AngloGold Ashanti in terms of a
R2,7-million occupational health disease claim lodged by a former employee,
Thembekile Mankayi. The ruling had also settled a
dispute on whether mineworkers, who had already been compensated under the
Occupational Diseases in Mines and Works Act (Odimwa), could be able to
claim compensation from their employers. The case
was seen as a test case and had the potential to open mining companies to
thousands of lawsuits said to be worth millions of rands. In
February, the High Court held hearings in which the relationship between the
Odimwa and the Compensation for Occupational Injuries and Diseases Act (Coida)
were in dispute. AngloGold Ashanti and Mankayi's
counsels had had differing interpretations of section 35 of Coida, and
whether or not mineworkers who had contracted occupational lung diseases
such as silicosis, were barred from suing their employers.
Mankayi's counsel had argued that their interpretation of
the act would allow him to claim for enhanced compensation, including future
loss of earnings, and future medical cost coverage, as he was compensated
under an entirely different act, the Odimwa. In
opposition, AngloGold Ashanti's counsel said that the two pieces of
legislation had been intended to be read together.
AngloGold Ashanti, on Thursday, commented that the ruling confirmed that
employees who qualified for benefits in respect of Odimwa could not, in
addition, lodge civil claims against their employers in respect of their
relevant conditions AngloGold Ashanti said it
considered the finding to be fully in line with compensation law. "We
believe that the social contract implied by the Odimwa and similar statutory
compensations systems, where employees afflicted by occupational injuries
and illnesses receive a predetermined compensation without having to suffer
the expense and inconvenience of prosecuting legal actions, and in return
waive the right to civil claims, is a just one, offering easier access for
employees and greater certainty for employers," the company said in a
statement. Attorney Richard Spoor, who represented
Mankayi, was not immediately available to comment on the ruling.
"This case is an attempt to deal with far deeper and more
fundamental problems. We are doing this to attach a certain value to human
life and human health, because the current system attaches no value to life.
It is bad and defective and it has to be fixed, but if you fix it, it will
be expensive," Spoor told Mining Weekly Online in an interview earlier this
year. At the time, he said that the objective of the
hearing had been to clear the way to file class-action lawsuits and force
the mining companies into a settlement. Mankayi had
lodged the R2,7-million claim after he had received a lump sum of R16 316
under the Odimwa as compensation after being dismissed from the gold mines
where he had worked for 16 years, on the grounds of medical incapacity.
Mankayi had worked at AngloGold Ashanti's Vaal Reefs mine
in the 1990s
Mining silicosis verdict awaited.
Busrep'A small group of former mine
workers listened intently yesterday during the resumption of former miner
Thembekile Mankayi's bid to secure R2.6 million from AngloGold Ashanti after
he contracted silicosis. Speaking during an
adjournment at the Johannesburg high court, one of the group, Willie Fuledi,
said he hoped the court would make a ruling for other mine workers seeking
their own payouts for the disease. "We have dealt
with this for a long time," said Fuledi. Mankayi
worked at the old Vaal Reefs mine near Klerksdorp in the North West from
1979 until 1995. He became ill with pulmonary tuberculosis in 1993.
After treatment it recurred, and in 2006 he was told that
he had contracted silicosis and obstructive airways disease.
He believed that his exposure to harmful silica dust at
work caused the silicosis, and that dust and harmful gases caused the
obstructive airways disease. He thought the mining company had breached its
duty of care. He received a little more than R16 000 in compensation.
Represented by Richard Spoor, Mankayi is now seeking additional money to
cover past and future expenses, along with loss of earnings.
He has a grade 7 education. Given his condition, he does
not believe he would be able to find another job where he resides in Khambi,
a village in Mthatha in the Eastern Cape. According
to the heads of argument, AngloGold believes that
section 35 (1)
of the Compensation for Occupational Injuries and Diseases Act (Coida)
constitutes a statutory bar to his claim. The section provides that he may
not recover damages relating to his disease from his employer.
Mankayi was paid in terms of the Occupational Diseases in
Mines and Works Act. He alleges that section 100 (2) of this act precluded
him from receiving any benefit in terms of Coida.
According to the argument, he is not
entitled to benefits from more than one source in relation to the disease,
so he cannot claim for an increase in compensation under Coida.
Judgment was reserved by Judge Meyer Joffe.
95% of dust measurements will be below global limit by December, mining
industry declares. Mining News of 14 May 2008. 'Silicosis
continues to be a major health challenge for South Africa’s mining industry,
despite the funds that have already been expended on trying to research the
incurable occupational lung disease. The mining industry has declared that,
by December this year, 95% of all exposure measurement results will be below
the global 0,1-mg/m3 occupational exposure limit for respirable crystalline
silica. Then, by 2013, it is determined that 100% of all exposure
measurement results will be below that 0,1-mg/m3 international benchmark. To
achieve this, the Mine Health and Safety Council (MHSC) of South Africa has
a R40-million, five-year programme of research into the debilitating
disease, caused by the inhalation of crystalline silica dust. “We will
counteract this disease through a collaborative approach with medical
academics and organisations locally and internationally, and by expanding
our research capacities,” MHSC occupational health programme manager Dr
Audrey Banyini tells Mining Weekly. A High Court hearing could still open the floodgates to compensation claims
from mineworkers. Judge Meyer Joffe is likely to pass judgement soon in the
case of Thembekile Mankayi, who contracted silicosis after working
underground for gold company AngloGold Ashanti. Should the judge find in
favour of Mankayi – represented by advocates David Unterhalter, Alan Dodson,
Steven Goldblatt and Adrian Friedman, instructed by attorney Richard Spoor
and attorneys Abrahams Kiewiets of Cape Town – it may mean that thousands of
other afflicted workers could be placed in a position to sue their
employers. AngloGold Ashanti – represented by advocates Chris Loxton and
Mark Atrobus, and instructed by attorneys Brink, Cohen and Le Roux of
Johannesburg – has described the case as having “far-reaching and
substantial economic consequences” for the mining industry, and,
consequently, the State. Though many see the judgement as having the
potential to clear up the issue of differing interpretations of
Section 35
of the Compensation for Occupational Injuries and Diseases Act (Coida),
seasoned worker-rights campaigner Spoor sees it as an attempt to deal with
far deeper and far more fundamental problems. “What we are trying to do is
to persuade the mining industry to take responsibility for the historical
burden of lung disease and to be accountable in civil law for what it has
done in the past,” says Spoor. “We are doing this to attach a value to human
life and human health, because the current system attaches no value to life.
The objective of the hearing is to clear the way for the filing of
class-action lawsuits and to force the mining companies into a settlement,”
he says. He blames Section 35, which dates back to 1947, for South Africa’s
poor health and safety record, “because it removes all financial incentives
to protect the health and safety of workers”. He perceives Section 35 as
discriminating against manual workers, in particular, in that it compensates
people for impairment rather than disability. For instance, he says that, if
a miner breaks a leg, so that he cannot perform manual work underground, he
can be assessed to be 10% disabled, even though the impairment is 100%
disabling, in that the miner is not trained for any other job. Spoor
contends that lung diseases like silicosis are routinely diagnosed as
tuberculosis (TB), since TB is not recognised as an occupational health
disease. Another problem he finds with Coida is that it often repudiates
claims, without offering any assistance to workers wishing to challenge the
commissioner. Moreover, the Occupational Diseases in Mines and Works Act (Odimwa)
does not provide for pension and medical care. If lungs have been damaged
40%, Odimwa allows for a R70 000 one-off lump-sum compensation and, if
infected 10% to 40%, allows for R35 000. Odimwa classifies one to be
suffering from silicosis only when one has 10% or more restricted lung
function. There is also the issue of limited testing facilities for former
miners, one in Umtata seeing only 30 to 40 people a week, “which doesn’t
begin to address the problem”, says Spoor. He contends that workers, their
families and taxpayers are bearing the cost of the disease, which, he points
out, has proved preventable, in countries like Brazil and Australia. In
1998, Parliament resolved to combine Coida and Odimwa in order to improve
worker compensation, but agreement on how the costs should be borne is a
sticking point. Meanwhile, it can be pointed out that South Africa is the
only country that compensates silicosis sufferers posthumously, irrespective
of the cause of death. Also, upon diagnosis, miners may not continue to be
exposed to silica dust. But the big change to the silicosis landscape is
still awaited and could well arise from the impending High Court judgment,
coupled to mining industry determination to protect its workforce fully from
the dangers of crystalline silica dust.
Mining silicosis verdict awaited.
Busrep. 'A small group of former mine
workers listened intently yesterday during the resumption of former miner
Thembekile Mankayi's bid to secure R2.6 million from AngloGold Ashanti after
he contracted silicosis. Speaking during an
adjournment at the Johannesburg high court, one of the group, Willie Fuledi,
said he hoped the court would make a ruling for other mine workers seeking
their own payouts for the disease. "We have dealt
with this for a long time," said Fuledi. Mankayi
worked at the old Vaal Reefs mine near Klerksdorp in the North West from
1979 until 1995. He became ill with pulmonary tuberculosis in 1993.
After treatment it recurred, and in 2006 he was told that
he had contracted silicosis and obstructive airways disease.
He believed that his exposure to harmful silica dust at
work caused the silicosis, and that dust and harmful gases caused the
obstructive airways disease. He thought the mining company had breached its
duty of care. He received a little more than R16 000 in compensation.
Represented by Richard Spoor, Mankayi is now seeking additional money to
cover past and future expenses, along with loss of earnings.
He has a grade 7 education. Given his condition, he does
not believe he would be able to find another job where he resides in Khambi,
a village in Mthatha in the Eastern Cape. According
to the heads of argument, AngloGold believes that
section 35 (1)
of the Compensation for Occupational Injuries and Diseases Act (Coida)
constitutes a statutory bar to his claim. The section provides that he may
not recover damages relating to his disease from his employer.
Mankayi was paid in terms of the Occupational Diseases in
Mines and Works Act. He alleges that section 100 (2) of this act precluded
him from receiving any benefit in terms of Coida.
According to the argument, he is not
entitled to benefits from more than one source in relation to the disease,
so he cannot claim for an increase in compensation under Coida.
Judgment was reserved by Judge Meyer Joffe.
Gold miner's R2.7m suit could rewrite labour laws. Busrep
of 6 February 2008. 'A former mine worker's bid to sue his
former employer, AngloGold Ashanti, for R2.7 million after he became ill
following exposure to dust and gas in a gold mine was one of the most
important occupational health cases in South African legal history, Willem
le Roux, the lawyer for the gold mining company, said yesterday.
Success in the court action could result in the launching
of class actions by other sick former mine workers against their former
employers, making the companies vulnerable to contingent liabilities running
into billions of rands. Le Roux was speaking ahead
of the Johannesburg high court action next week in which Thembekile Mankayi
(49), an ex-miner from the Eastern Cape, will seek damages against AngloGold
Ashanti. Mankayi instituted the claim in October 2006. He was employed at
the company's Vaal Reefs gold mine for 16 years, until he was dismissed on
grounds of medical incapacity after falling ill in 1995. Mankayi had
contracted silicosis and silico-tuberculosis (also known as phthisis) after
exposure to harmful dust and gases in the mine. The
mining company has challenged, by way of an exception, Mankayi's right to
sue his erstwhile employer by virtue of the provisions of section 35 of the
Occupational Diseases in Mines and Works Act.
AngloGold Ashanti argues that Mankayi received a once-off, lump sum payment
of R16 316 he received from the compensation commissioner for occupational
diseases. This is the amount to which he was
entitled to in terms of the act, which regulates the compensation payable to
mine workers who contract a lung disease on the job.
Le Roux said the court had to decide if the exception was valid and if the
indemnity in
section 35 of the Compensation for Occupational Injuries and
Diseases Act (Coida) was correct that employees could not sue their
employers. If the court ruled in the mining
company's favour, it would establish a precedent. As a result, similar cases
could not be brought to court unless Mankayi successfully appealed the
matter before the supreme court of appeal. "It's an
exceptional case, in the sense that there is no judgment in this regard
because of the fact that Occupational Diseases in Mines and Works Act came
into operation in 1973," said Le Roux. "It would establish a principle and
is of course of great significance. [It] is one of the most important cases
in occupational diseases up to now." On the other
hand, if the court should decide in Mankayi's favour, it would open the way
for thousands of former mine workers who suffer from occupational lung
diseases - such as silicosis, silico-tuberculosis, chronic obstructive
airways disease and asbestosis - to launch class actions against AngloGold
Ashanti, Gold Fields, Harmony and other large employers in the gold mining
industry. Mining companies would also be vulnerable
to contingent liabilities running into billions of rand.
As a former mine worker, Mankayi is disqualified from
receiving medical aid, a disability pension or any of the other benefits to
which other workers are entitled under the provisions of the Coida.
His lawyers intend to argue that on a proper
interpretation, section 35 of the Coida does not apply to employees like
Mankayi; and that section 39 of the constitution requires the court, when
interpreting any legislation, to promote the spirit, purport and objects of
the bill of rights of equal protection and benefit of the law.
Should the high court bid fail, the next step would be to
challenge the constitutionality of the pertinent section of the Coida, his
lawyers have said. A spokesperson for Gold Fields
declined to comment on the matter. Harmony could not be contacted.
More
Interesting. We know that
section 35
of the COID Act has
already been ruled to be constitutional in the Constitutional Court in
Jooste
v Score Supermarket Trading (Pty) Ltd [1998] (CC)
but here we are dealing
with
Section 100(2)
of ODMWA .
Click here
for original High Court case that led to the referral to the Constitutional
Court. RHL.
More
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