Sick system

Is occupational disease in South African mines a problem without a solution?

Occupational diseases can be described as the “Achilles heel” of the South African mining industry. They represent perhaps the most pressing challenge faced by the industry simply because, although they were first recognised in the late 19th century, to this day no long-lasting solution appears to have been found.

Disease rates among miners remain high and in some cases there are clear signs that the problem is worsening. Occupational diseases raise many socio-economic issues. Among these, two stand out. First, there is the issue of what can be done to reduce disease rates among mine workers. Then there is the issue of how occupational disease sufferers should be compensated.

There are no easy solutions to these issues. Each requires coordinated interventions at a policy level by relevant stakeholders; notably government, the mining industry and worker representatives.

Occupational diseases in South African mines have a long history. There is irrefutable evidence that as early as 1896 silicosis had reached crisis proportions in South Africa! Today, even though estimates vary, it is evident that the problem is not being overcome; if anything it is getting worse.

For instance, according to the South African National Institute for Occupational Health Pathology Disease Surveillance Report for 2012, pulmonary tuberculosis (TB) and silicosis rates remain very high among black gold miners at 352 and 396 per 1 000 miners respectively.

In 2011, the rates for pulmonary TB and silicosis stood at 346 and 362 per 1 000 miners, respectively. Among the countries where accurate records are available, South African occupational disease rates are the highest in the world.

The surprising thing about occupational diseases in South African mines, is that the local mining industry and policymakers have perhaps the longest history and experience worldwide in dealing with this problem … Occupational diseases have been recognised as a problem since the beginning of commercial mining. One would be forgiven for thinking that all these years of gaining experience and scientific insight into occupational diseases have yielded cutting-edge solutions to this problem.

Indeed, in the 1930s, South Africa was regarded as a world leader in mine occupational health and safety research and risk management. Evidence gathered locally was used in other countries such as the United Kingdom and Australia to shape occupational health and safety policies and legislation.

Furthermore, South Africa also hosted several high-profile international conferences on mine health and safety around the same period. Yet, the problem of occupational diseases in the mines has continued with no sign of being eliminated.

The sad reality is that many experts in this field privately agree that occupational diseases in South African mines may never be totally eliminated. Mining activities are governed by several pieces of legislation, most of which aim to improve occupational health and safety.

For instance, the Mine Health and Safety Act 29, of 1996, has extensive provisions on occupational health and safety risk management in the mines. It imposes a wide range of obligations on mine employers to ensure health and safety of employees and third parties.

Some of the obligations imposed by this Act include a duty to: provide employees with adequate health and safety equipment; establish a health and safety policy; provide health and safety training; assess and respond to risk; and, establish a system of medical surveillance.

If it is accepted that mining companies are complying fully with the provisions of this Act, which are clearly intended to reduce and possibly eliminate inter alia the problem of occupational diseases, then one fundamental question immediately comes to mind: why does the system appear to be failing? Disease rates remain unacceptably high, despite all the efforts to control the problem. Should someone be blamed for this and, if so, who?

This brings us to the second fundamental issue posed at the beginning of this article – how should occupational diseases sufferers be compensated? In 2011, we wrote on the landmark Constitutional Court judgment in the case of Thembekile Mankayi versus Anglo Gold Ashanti.

In this judgement it was decided that a mineworker, who contracts an occupational disease in the course of employment, is not barred by Section 35 (1) of the Compensation for Occupational Injuries and Diseases Act (COIDA) 130 of 1993 from suing the employer for damages, in addition to claiming statutory benefits, provided fault can be established.

At the time the judgment was handed down, it was hailed in the media and other sections of South African society as a major victory for mineworkers. We argued then that this was misplaced jubilation. If we assume that mining companies are doing all they are required to do, by law, to improve occupational health and safety, then litigating against them – which requires proving fault – will not be easy.

Suing employers at common law, which the Manakayi case authorised, has historically never been an easy process. In fact, all available evidence suggests strongly that suing the employer for damages has been an ineffective option in many countries, and it is for this reason that workmen’s compensation schemes were introduced in the early 1900s. Suggesting that suing the employer is a solution worth celebrating is, therefore, inconceivable as it takes us back a hundred years.

The current system of compensating occupational disease sufferers in the mining industry, where they are required to sue their employers, hardly improves their position. Against the background of high disease rates, which show no signs of improving, the last thing one would want to see is a compensation system that further complicates the position of occupational disease sufferers.

Suing employers at common law is a very slow and expensive process. For instance, the Mankayi litigation started in the South Gauteng High Court in 2006, and the Constitutional Court only ruled on the existence of Mankayi’s right to sue the employer in 2011; some five years later.

Herein we find another misconception, which was clearly evident soon after the judgment was handed down. Many people, including some leading media reports, were under the mistaken impression that the Constitutional Court awarded Mankayi damages. It did not. The Constitutional Court merely ruled that Mankayi had a right to sue the employer. This means that, on the question of whether he was entitled to any damages at all, the matter was supposed to go back to the High Court for this issue to be determined.

Unfortunately, Mankayi died before this process (which could have taken another several years) could begin. Had this process continued, there was no guarantee that damages would have been awarded to him. Likewise, it is also uncertain what their quantum would have been. This serves as a classic illustration of how slow litigation can be to yield compensation – it can take years before issues are finalised and, in the interim, victims will be suffering with no compensation at all.

Suing the employer is also an expensive process – more so in occupational disease cases where issues involved can be extremely complex. To resolve them, scientific evidence and expert witnesses are usually required. If there is one area where litigation is not desirable as a compensation option, it is occupational disease claims. Large portions of potential compensation end up being transferred to third parties, such as lawyers and expert witnesses, leaving disease sufferers with very little.

The current policy and system for dealing with occupational diseases in South African mines seems to be failing, both in terms of trying to reduce the scale of the problem, as well as assisting those who are affected by diseases at work.

What is needed is a system that responds quickly and fairly to the needs of occupational disease sufferers, and not one that leaves them at the mercy of lawyers and the slow judicial machinery.

Legally Speaking is a regular column by Albert Mushai from the school of Economics and Business Sciences, University of the Witwatersrand. Mushai holds a master’s degree from the City University, London, and was the head of the insurance department at the National University of Science and Technology in Zimbabwe before joining Wits University as a lecturer in insurance.