POLITICS

Is DMR deliberately sabotaging mining industry? - IRR

Anthea Jeffery says dept is enforcing stoppages for often trivial safety violations

DEEP AND DANGEROUS:

HEALTH AND SAFETY IN OUR MINES

Mining is inherently a risky business. It requires enormous upfront expenditure on acquiring machinery, sinking shafts, developing and shoring up tunnels, dealing with under-ground water, holding down dust levels, storing mining waste, and hiring and training mineworkers. Often, it takes years before a new mine or shaft assumes production and begins to generate revenue to offset these heavy costs.1

The mining industry in South Africa is nevertheless the bedrock on which the country has been built. Though its contribution to GDP has diminished as the economy has modernised, mining remains vital to employment, investment, tax revenues, and export earnings.2

However, the sustainability of many mines is currently under great pressure from lacklustre commodity prices and vastly increased electricity, labour, and other input costs. Many mines are looking to reduce costs by closing shafts and cutting jobs. Some 100 000 mining jobs have been lost over the past seven years – and adverse regulation and other cost pressures could see another 100 000 jobs being shed in the future.3

Health and safety on South Africa’s mines have long been controversial issues. Since safety is difficult to secure at deep levels, fatalities in South Africa generally far exceed those in other countries. For more than eight decades, they averaged more than 600 a year.4

Gold mining is particularly hazardous to health because it generates silica dust from which underground workers cannot easily be protected. Exposure to silica dust often triggers silicosis, a debilitating lung disease which causes great suffering as well as many deaths. At the same time, some 80% of South Africans have latent tuberculosis (TB), which exposure to silica dust can turn into active TB, though many other factors – from overcrowded living quarters to HIV/AIDS infection – can trigger this too.5

Current health and safety issues are also bedevilled by the racial discrimination which permeated the industry for so many decades. Black mineworkers, unlike their white colleagues, were poorly skilled migrants who worked on temporary contracts and lived in demeaning and over-crowded hostels, far from their families and homes. Until black wages on the mines began to rise substantially in the 1970s, the average white cash wage (leaving aside the value of accommodation and food in mine compounds) was 16 times higher than the average black wage.  Blacks were excluded from skilled jobs and management posts and were long denied trade union rights.6

Black mineworkers also bore the brunt of deaths, injuries, and TB on the mines (though silicosis prevalence was initially higher among whites, as further explained in due course). This greater burden of death and disease among black miners was partly because far more blacks than whites worked underground. However, blacks often had dirtier and more dangerous jobs than whites. This legacy of pervasive racial discrimination on the mines casts a long shadow over the industry today, making it all the more difficult to find the right policy balance on health and safety issues.

Why the safety challenge is so great

Mining is always dangerous, but the depths at which it often takes place in South Africa make it uniquely challenging here. Some of the country’s gold mines now extend more than 4 kilometres below the surface. At these depths, virgin rock temperatures can reach up to 60˚C, while rock faces are subject to great stress. As mines push deeper, so the pressure of the rock above may rise to some 9 500 tons per square metre, which is roughly 920 times that of normal atmospheric pressure. Worse still, when rock is removed during the mining process, the pressure in the surrounding rock goes sharply up.7

Mineral veins are often also narrow. The vein of gold that runs for many kilometres through the Witwatersrand Basin has been compared to ‘a page in a very thick book of rock’. This makes the gold seam difficult to find or to exploit. It also means that a ton of rock has to removed and crushed to recover roughly 5 grams of gold.8

The deeper the tunnels go, the greater is the weight of the rock above them that needs to be supported. Support systems have been greatly improved over the years, says William Joughlin, principal mining geotechnical engineer at SRK Consulting SA. However, these systems still ‘have to be installed manually by people crawling in the narrow stopes’.9

The risk of rock bursts and rock falls is compounded by seismicity, which generally stems from the natural movement of the continental plates making up the earth’s crust. ‘As the plates move and shift in relation to each other, energy is released into the rock mass, causing earthquakes or earth tremors’. But seismicity is often also associated with deep-level mining. As mines go deeper, the stresses from the overhead rock mass intensify. Drilling into rock and setting off (controlled) explosions for mining purposes adds to these stresses and increases the risk of seismicity. However, ‘mining-induced seismicity is still not well understood’, despite R250m spent on research and major technological advances in seismic monitoring and deep level rock mechanics.10

In recent decades, many steps have been taken to make mines safer.  For example, before either drilling or clearing occurs, roofs or hanging walls are secured with safety netting fixed to roof bolts, which is strong enough to catch most smaller rocks if they fall. ‘Safety nets have proven their worth,’ says Professor August Lamos, a mining engineer at the University of the Witwatersrand. ‘Nets have caught rocks that would almost certainly have killed.’ However, nets can only do so much, as seismic activity can unleash rubble that will overwhelm any net.11

At the same time, compressed-air rock drills have been replaced by faster (and quieter) hydro-powered ones, so drillers can spend less time at the stope face. Where possible, wholly mechanised drills are used instead to help keep mineworkers safe. New blasting methods allow water-based emulsions to be loaded swiftly and safely into blast holes and detonated electronically from the surface at a set time throughout the mine. Teams then wait for four hours to allow the dust to settle and any post-blast micro-seismicity to die down. Broken rock is loaded onto underground trains, which are electronically controlled and equipped with remote sensors to help reduce transport accidents.12

Many deep-level mines have tried to mechanise their operations, but this is difficult to achieve as stopes are narrow, uneven, and steep. AngloGold Ashanti, among others, has recently renewed its efforts to mechanise more fully. Its aim is to develop remotely-controlled machines which can mine narrow veins without the help of any mineworkers at deep rock faces.

Mechanisation has already been introduced at some mines, but most of the companies which have tried it have found it too costly and difficult to pursue. At present, thus, working temperatures still have to be reduced to reasonable levels by some of the largest refrigeration plants in the world. Sophisticated ventilation systems are used to provide an adequate air supply at all times, while extraneous water is kept out by powerful pumps. All employees have at their disposal self-contained self-rescue equipment, essentially a breathing apparatus which provides at least 30 minutes of oxygen while the individual gets to a place of refuge. Explains a gold-mining Safety Fact Sheet: ‘All underground workings are equipped with refuge bays, which are protected chambers located within 30 minutes of all working places, and which are equipped with fresh air, water, and communication devices.’13

All accidents and incidents are carefully investigated, while the lessons learned are shared across the industry. Typically, each shaft has its own health and safety committee, with representatives from both management and unions, and safety briefings take place at the beginning and end of every shift. Regular safety training is provided for all employees. The identification and mitigation of risks is a priority, while all risks identified underground must be communicated to management to resolve. Bonuses and incentives are increasingly being geared to ‘prioritise safety over production’.14

Mine fatalities have come down sharply in recent decades. From 1910 to 1990, they averaged some 600 deaths a year. Between 1991 and 2010, they came down to an average of 339 a year. By 2000, annual deaths, at 282 in that year, were well down on the 482 fatalities recorded in 1994. After 2010 they decreased further: to 123 in 2011, 112 in 2012, 93 in 2013, 84 in 2014, 77 in 2015, and 73 in 2016.15 Despite the increasing depth of many gold mines, in particular, the fatality rate on South African mines now compares favourably with international benchmarks set in countries such as Canada and Australia.16

At the time of writing, final figures for 2017 were not yet available. By November 2017, however, the number of fatalities had risen to 76 (already more than the 73 deaths reported in 2016). Many of these deaths were caused by seismicity for, despite all the money and effort that has been put into researching this phenomenon, seismic incidents are still impossible to predict or stop. Human error is often also a major factor in fatalities, as it is in other spheres as well.

The number of annual fatalities on the mines is now similar to the yearly total of deaths in construction, for instance, but fatalities on building sites pass largely unremarked. So too do an average of 13 500 deaths in road accidents every year. There are also no suggestions that roads notorious for fatal accidents – for example, the Moloto Road connecting Gauteng, Mpumalanga, and Limpopo, where 158 people have been killed in a little over two years – should be closed. Nor would the closure of the Moloto or other roads be an appropriate way to end or reduce the fatalities.17

The accusations made over mine fatalities are often harsh and potentially inflammatory. After four recent deaths in a seismic event 3 000 metres underground, Blessings Maroba, president of the Mining Forum of South Africa, commented that ‘mines cannot continue to kill people underground, that cannot be the norm’.  The National Union of Mineworkers (NUM) has made similar statements, its general secretary Livhuwani Mammburu saying in 2016 that ‘companies are focused on making profits and neglect the health and safety of workers’. Joseph Mathunjwa, president of the Association of Mineworkers and Construction Union (Amcu), also blames the industry, saying ‘our fathers spilt their blood for these mines to be where they are today’, and ‘our blood [is still] spilt for them to continue to be profitable’.18

Mine Health and Safety Act of 1996

Initiatives to buttress safety and health on the mines go back to 1894, when the mining industry formed the Rand Mutual Association (RMA) to compensate mineworkers killed or injured in rock falls and the like.

In 1907 a Workmen’s Compensation Act provided for the payment of compensation to employees permanently disabled through accidents at work. This was followed by the Workmen’s Compensation Act of 1914, which required employers to provide compensation for the injuries suffered by workmen, as well as any deaths resulting from such injuries.19

Many other statutes of a similar kind were introduced at many different times thereafter. However, the first major development in the post-apartheid period was the adoption in 1996 of the Mine Health and Safety Act (MHSA). Under this statute, mine inspectors have wide-ranging powers to deal in various ways with dangerous conditions on the mines.

Compliance notices and safety stoppages

Under Section 55, an inspector may issue a compliance notice requiring a mining company to take specified steps to bring its operations into compliance with the MHSA. Under Section 54, an inspector is empowered to close down mining operations, in whole or part, if he has ‘reason to believe’ that mine conditions ‘endanger or may endanger’ health or safety.20

The Section 54 system seems to assume that mining companies will decline to stop operations for safety reasons unless they are compelled to do so by the government. In practice, however, mining companies often voluntarily implement stoppages because of safety concerns.

In recent years mining companies have become increasingly concerned about the costs of unnecessary safety stoppages imposed by the state’s inspectors. In 2015 a leaked Chamber of Mines document showed that safety stoppages had risen sharply over the past four years for roughly 60% of mining companies. Since 2012, stoppages had cost the mines a total of some R13.6bn in lost revenue. The stoppages – and the losses resulting from them – had also been steadily accelerating since 2012, despite the enormous improvement in fatality figures that had been achieved.21

Moreover, when fixed costs were factored in (salaries and other expenses which had to be paid irrespective of whether a mine was producing), along with the heavy costs of resuming operations after a shutdown, the true costs of stoppages were very much greater. With many mines already struggling to remain afloat, prolonged and unnecessary safety stoppages risked tipping them from profit into loss.22

Some mining companies see an element of vindictiveness in many of the stoppages. Said one executive: ‘When you challenge a stoppage,...there is a sense that you then get bullied, you get audited, and stopped to death... It is such a mess. Nobody is making money; they are struggling to survive and nobody can afford to be singled out for [fear of] more severe treatment.’23

Two court judgments illustrate how unnecessary and disproportionate safety stoppages have sometimes been. In the Bert’s Bricks case in 2010, a brick yard which did not even fall within the jurisdiction of the MHSA was closed by mine inspectors because of a worn (but not dangerous) tread on one tyre on a single forklift truck.24 In the AngloGold Ashanti case in 2016, the company’s entire Kopanang mine was closed because a mineworker at one small part of it had failed to return 43 unused explosive cartridges to the explosives box. In addition, four rail switches, out of some 200 across the mine, lacked rail switching devices. Yet rail switching devices simply make it easier to switch a locomotive from one track to another and have no impact on safety. The stoppage cost AngloGold some R9.5m a day in lost production.25

In both cases, the courts expressed outrage at what the mine inspectors had done and said they would have held them personally liable for legal costs if this had been requested. Said Judge Roger Southwood in Bert’s Bricks: ‘There were...no objective facts which would lead a reasonable person to believe that the damage to the tread would endanger...health or safety... It seems that not one of the officials properly applied his mind to the operation of the MHSA and that there was a gross abuse of the provisions of the Act.’26

Added Judge André van Niekerk in the AngloGold case: ‘The starting point...is the standard of safety prescribed by the MHSA. Section 2 of the Act makes it clear that the standard is one of reasonable practicality. This is a standard that is consistent with an employer’s common law obligation to provide a reasonably safe working place. By definition, this is not an absolute standard, while its nature and scope require an objective assessment of the work concerned and the hazards associated with it.’27

Any decision made under Section 54 of the MHSA also ‘constitutes administrative action’ – which meant such action has to be ‘proportional’. This in turn requires ‘balance, necessity, and suitability’, or (in common parlance) avoiding the ‘use [of] a sledgehammer to crack a nut’.28

The safety stoppage imposed across the entire mine was ‘out of all proportion to the issues identified by the inspectors’. The inspectors were also from the ‘same regional office’ and were sometimes ‘the same individuals’ that Judge Southwood had berated in the Bert’s Bricks case. Yet they persisted in asserting that proportionality was irrelevant and that they were entitled to ‘close entire mines on account of safety infractions in a single section’ and without ‘specific reference to objective facts...that rendered the whole mining operation unsafe’. The MHSA had commendable purposes, the court went on, but ‘that did not entitle those responsible for enforcing it to act outside the bounds of rationality’.29

By the time the judgment was handed down, AngloGold had lost a total of 82 800 oz of gold production to safety stoppages over the year. In the first six months alone, it had experienced 77 safety stoppages, which had reduced its production by some 44 000 oz and cost it roughly R834m in forfeited revenue. Yet only six of the 77 notices related to fatal accidents. The rest of the notices, said AngloGold CEO Srinivasan Venkatakrishnan, came not even from high-potential incidents, but were rather the result of mass audits and routine inspections. Safety stoppages had become so common that the company could no longer provide a reasonable production forecast for its South African mines, as it could not predict how many more stoppages might lie ahead.30

Said Business Day in an editorial: ‘South African gold mines are technological marvels, reaching down to tremendous depths, with AngloGold Ashanti’s Kopanang mine more than 4km deep. But this brings a plethora of safety challenges, including seismicity problems, heat and dust. While there is no question that the mining industry needs a firm hand when it comes to regulating safety, safety stoppages have begun to cost the industry billions... Not a single CEO would argue about the need for tough safety interventions where these are justified, [but they question] the heavy-handed approach from inspectors who order the suspension of an entire mine for a localised offence... They argue that work should be stopped in the offending area only.’ The newspaper called on the DMR to pay careful attention to Judge van Niekerk’s ruling, adding: ‘[The department] needs to nurture an industry that cannot afford to have billions in revenue stripped out of it by heavy-handed officials acting with a severity that is out of all proportion with the laws they are seeking to enforce.’31

Mining companies have given few details of the types of infractions for which safety stoppages have been ordered. Ron Weissenberg, a non-executive director of several mining companies and associate lecturer at Rhodes University, has provided a little more information, saying: ‘Operations in which I have been involved have been served with Section 54s for things like a first aid box not being up to scratch and a faulty reverse light on a vehicle, or for the paperwork not being flawless. These things don’t pose a danger and are easily dealt with by existing regulations such as Section 55 (which calls for remedial action within a specified timeframe).’32

Professor Weissenberg sees two underlying reasons for disproportionate safety stoppages. The inspectorate, he says, generally lacks an understanding of the industry: many inspectors have little practical experience of mining and have an administrative background, which encourages a tick-box mentality. But a deeper factor is also at play.

The government is hostile to the mining industry, which it sees as having profited unduly for decades from the ruthless exploitation of hundreds of thousands of poorly paid black mineworkers. Professor Weissenberg argues that this has made mining ‘an industry of retribution’. It is seen as the archetypal villain of South Africa’s apartheid past. Many in the government and civil society continue to accuse it of putting ‘profits before people’ in its selfish pursuit of the mineral wealth it then mostly spirits abroad. From this perspective, the DMR’s eager resort to Section 54 is a symptom of a much larger problem. It reflects the government’s outrage at the industry – and the DMR’s apparent belief that its inspectors have both a moral and a legal duty to bring mining companies to heel.33

Health challenges in the mining sector

In South Africa’s deep level mines, in particular, the challenges that make safety so difficult to secure often also make it difficult to protect the health of underground mineworkers. Silicosis is a major problem in the gold and coal sectors, in particular. So too is pulmonary tuberculosis (TB), which can be triggered by exposure to silica dust (though many other factors are relevant too). The employees most vulnerable to these diseases are those who blast rock and sand, such as mineworkers and stone cutters.34

Said the Johannesburg high court in 2016, in the Nkala case (as further described below):35

‘Crystalline silica is a common mineral, also known as quartz, which is found in gold mines. Silica dust is generated and raised into the air by many of the processes associated with mining, such as blasting, drilling, and the handling and transport of rock and soil containing crystalline silica.

‘The process through which crystalline silica dust causes silicosis [is] briefly as follows: when the smallest particles of crystalline silica are raised into the air as part of dust in the mining process, and mineworkers are exposed to that dust, the mineworkers inhale the crystalline silica particles. Once inhaled, the dust particles are deposited in the alveolus region of the lung. Once deposited in the alveolus, the particles attack the lung cells and thus damage the lung tissue, resulting in scarring or fibrosis of the lungs,...which obstructs and impairs the normal functioning of the lung... Silicosis is an irreversible, incurable, and painful lung disease... It can be a completely disabling disease and in many cases it is fatal.’

Silicosis, especially in its most common form (‘chronic silicosis’), typically takes 15 years to develop and for its symptoms to become apparent. ‘Accelerated silicosis’, by contrast, commonly manifests within ten years. Silicosis is a progressive disease which worsens over time, even after exposure to crystalline silica dust has stopped.36

As regards tuberculosis (TB), about 80% of South Africans are infected with the TB bacteria, but may not even be aware of this as the disease is latent (rather than active) within them. About 1% of the population develops active TB every year, giving an incidence rate of some 860 per 100 000, which is one of the highest rates in the world. TB is usually spread from person-to-person through the droplet nuclei that are produced with a person with active TB coughs, sneezes, or talks.37

TB is particularly pervasive where people live in overcrowded conditions with poor ventilation. Poverty, malnutrition and hunger also increase susceptibility to the disease. People with the suppressed immunity triggered by HIV/AIDS are particularly vulnerable. TB has long been prevalent among mineworkers, partly because of the overcrowded hostels in which migrant workers have generally lived. In addition, though silica dust does not directly cause TB, exposure to such dust is a risk factor for the development of pulmonary TB. People with silicosis are also more vulnerable to TB infection because their immune systems are suppressed. Writes the Chamber of Mines: ‘The often quoted figures are that mineworkers with silicosis are six times more likely to develop active TB, and mineworkers with silicosis and HIV are 18 times more likely to develop active TB.’38

South Africa is now committed to the World Health Organisation/International Labour Organisation (WHO/ILO) initiative to eliminate silicosis by 2030. In 2003 the DMR set dust mitigation targets, based on the WHO/ILO initiative, which aimed to ensure that, by December 2008, 95% of all exposure measurement results would be below the milestone level for respirable crystalline silica of 0.1mg/m3. The further goal was to have no new cases of silicosis among previously unexposed individuals by 2013. The 2008 target was not reached, but it came close to being realised. As Gill Nelson records in a 2013 article in Global Health Action, ‘the proportion of mines reaching 95% compliance [stood at] around 94% in 2006 [but then decreased] to less than 85% in 2010’. Though this meant the second milestone could not be met by 2013, mining companies have since committed to reducing silica dust levels even further and reaching the goal of zero new silicosis cases by 2024.39

A statutory system for the payment of compensation to miners who contracted silicosis and other occupational diseases on the mines was introduced in 1911, and has thus been in place for more than a century. The initial legislation was amended at various times, and culminated in 1973 in the adoption of the current statute: the Occupational Diseases in Mines and Works Act (Odimwa).40

The Odimwa system

Under Odimwa, mining companies are required to pay prescribed levies into a compensation fund. Compensation is payable from this fund to mineworkers who have been found to be suffering from silicosis and other ‘compensatable diseases’ by a ‘medical certification committee for occupational diseases’ operating under the auspices of the Medical Bureau for Occupational Disease (MBOD).41

Odimwa is administered by the Department of Health. Under its provisions, a Mines and Works Compensation Fund (the Odimwa fund) has been established and operates under the control of the Compensation Commissioner for Occupational Diseases (CCOD). Mining companies pay levies to the Odimwa fund for all employees who carry out ‘risk work’ – work which could result in their contracting silicosis, TB, and other ‘compensatable’ diseases.42

When Odimwa was adopted in 1973, mineworkers of all races were entitled to its benefits, but the compensation payable to whites was much higher than that available to other groups. This racial discrimination was eliminated in 1993.43

Mineworkers who are certified as having contracted a compensatable disease are entitled to reimbursement for their medical expenses. They also have the right to ‘one-sum’ benefits from the Odimwa fund, which are calculated according to a statutory formula.44 This formula is set out in Section 80 of Odimwa as ‘(A x 12) x B’. Here, ‘A’ represents the mineworkers’ monthly wage, but the sum taken into account may not, under the current wording of Section 80, ‘exceed an amount of R3 000’.  By contrast, ‘B’ is an amount which varies (in accordance with the severity of the disease and other factors) from a low of 1.3 to a high of 2.917.

The minister of health, with the concurrence of the finance minister, has the power to ‘increase any benefit’ under Section 80 by notice in the Government Gazette. However, he has failed to exercise this power since 2009, when the R3 000 a month limit on earnings was set. Monthly wages in the mining industry averaged R20 300 at the start of 2016, but the difference between wages actually earned and the statutory maximum cannot be taken into account.45

Under the formula, the one-sum benefits claimable under Odimwa are generally as follows. A mineworker who is discovered to be suffering from a compensatable disease in the ‘first’ (or lesser) degree is entitled to a lump sum of R47 160. A mineworker who is found to be suffering from a compensatable disease in the ‘second’ (or more serious) degree and has not yet received any other benefit under the Act is entitled to a lump sum of R105 000. This maximum sum is too little to yield a reasonable income. Says Wits Professor Tony Davies: ‘Even if every rand were invested, it wouldn’t give you a monthly income worth thinking about’, especially given high inflation rates over many years.46

Largely because the statutory maximums have not been revised upwards by the health minister, the Odimwa fund is grossly under-resourced. A recent study by Yale University’s Global Health Justice Project suggests that ‘even under the most conservative assumptions, the Odimwa fund is more than R600m below the level required to cover current liabilities. It may in fact be R10 billion or more below the level required to cover the total annual costs to South African society’.47

The statutory compensation system under Odimwa for silicosis and TB contracted on the mines is thus flawed and profoundly inadequate. The Odimwa fund, like other statutory compensation funds (including the Road Accident Fund), has also been very poorly administered. As a result, it has failed to keep proper records of mineworkers within and outside the country, and has major backlogs in the processing and payment of miners’ claims.

Failures in the Odimwa system

At the time Odimwa was enacted, silicosis prevalence rates among white miners were significantly higher than they were among blacks. This was largely because whites worked for longer on the mines (an average of some 23 years), while blacks had short contracts. Long employment on the gold mines increased whites’ exposure to silica dust as well as the chances of the disease becoming manifest while they were still employed.

Autopsy figures for the period from 1975 to 2007 (taken from the records of 19 150 gold miners, 86% of them black and 14% of them white) show a silicosis prevalence of 3% among deceased black miners in 1975, as against a prevalence of 18% among whites. This changed substantially after 1975, when black mineworkers began obtaining longer contracts. By 2007, thus, the proportion of white gold miners with silicosis had increased to 22%, whereas the proportion of black miners with the disease had risen to 32%. Black miners were generally exposed to higher concentrations of silica dust as the work they did was dirtier and dustier.48   Their short contracts meant, however, that they often left the mines – frequently for remote rural areas in South Africa or neighbouring countries – in the period when the disease was still latent.

The extent to which silicosis was taking hold among black miners may also have been obscured by seemingly low prevalence rates and long latency periods. The same autopsy data shows, for example, that the proportion of black miners with silicosis reached 2% after they had worked for 15 to 19 years on the mines, whereas the equivalent proportion among whites was reached after 20 to 24 years. This data also shows that the proportion of black miners below the age of 50 who had silicosis was 0.07%, whereas the equivalent figure for white miners was 0.04%.49

Another major factor was the migrant labour system. At the end of their contract periods, black miners generally returned to their rural homes, where health facilities were limited. The silicosis they had contracted on the mines would commonly take ten or 15 years to develop. It was also difficult to diagnose, even with the benefit of x-ray machines, which many rural clinics in any event lacked. Migrants from foreign countries fared even worse.

Even for South Africans, the bureaucratic hurdles remain daunting. Many different documents have to be submitted to the MBOD before it will certify a diagnosis of silicosis. These include not only medical forms, but also ID documents, finger print records, and labour records showing periods worked at relevant mines. Administrative efficiency is low and the MBOD, as the Daily Maverick recounts, has ‘towering stacks of claim records requiring evaluation, including records filed as far back as the 1950s’.50

When applicants eventually receive the MBOD’s certification, their claim records must be sent to the Compensation Commissioner for Occupational Diseases (CCOD), who in turn sends a form back for the worker to complete. Comments Professor Jill Murray of Wits University: ‘Once you’ve taken the medical examination, that’s only the beginning of the chain of misadventure. Then you’ve got to get together a sheaf of papers to go with it, and...where do people get these? They don’t even have electricity. Now they’ve got to have records of service and ID documents and all the rest of it.’ If a document is missing, a clerk at the CCOD will write to a claimant asking him to supply whatever is needed. But such letters can go astray, or the further documents required may prove too difficult to find. Yet claims cannot be paid unless and until the paper trail is complete.51

Attempts to make Odimwa work

By 2008 the failures of the system remained so large that the Chamber of Mines launched a ‘Making Odimwa Work’ project. This was done in conjunction with the Department of Health and the National Union of Mineworkers (NUM). As part of this endeavour, the chamber contributed some R26m to tracking and tracing former mineworkers who might have become ill since they left the mines. It also helped improve the administration of Odimwa, and tried to ensure that the public health system in labour-sending areas had the capacity to examine people for occupational lung diseases and assist them with compensation claims.52

In 2012 health minister Dr Aaron Motsoaledi appointed Dr Barry Kistnasamy as the new Odimwa commissioner and mandated him to help turn the failing system around. By then, the commission had failed to submit its financial statements to Parliament since the 2009/10 financial year. As Dr Kistnasamy later told MPs: ‘At that stage, its offices held rooms of boxes of disorganised paper records, its phones rang unanswered, and the fund had virtually collapsed.’53

In explaining this disarray, Dr Kistnasamy claims that Odimwa was initially designed to cover whites alone, and was thus unable to cope when some 500 000 or so black mineworkers became entitled to its benefits in 1993.  This is not so, however, for Odimwa provided compensation for mineworkers of all races from the start (though with different benefits for different groups). The administrative chaos in the Odimwa system stems rather from other factors. It is in keeping with the inefficiency of the public service in general – and mirrors the malaise that afflicts both the Road Accident Fund and the (Workmen’s) Compensation Fund established under the Compensation for Occupational Injuries and Diseases Act (Coida) of 1993.54

Yet another turnaround strategy was launched in May 2015, this time in the form of Project Ku-Riha (based on the Tsonga word for ‘compensation’). This project aims, in particular, to help the MBOD and CCOD finalise some 100 000 certified, but unpaid, compensation claims, of which about 45% date back to 2000. These claims have not been settled for a range of reasons, including incomplete information regarding claimants, a lack of bank accounts, and the absence of the necessary identity details.55

Reporting to Parliament in August 2016, more than a year after the launch of the project, Dr Motsoaledi told MPs that this backlog of some 100 000 unpaid claims had been revealed through a file verification exercise. Some 700 000 additional files, including 500 000 still languishing with the MBOD, were now being examined with the help of the Chamber of Mines. However, much more data had yet to be captured, including source documents for beneficiary claims and reconciliations between the levies paid by mining companies and the payments made from the Odimwa fund.56

Some important progress has been made. In November 2016 Mpho Ndaba, director of revitalisation of distressed mining communities at the Department of Planning, Monitoring, and Evaluation, said that the Odimwa fund had paid out a total of some R1.4bn to some 96 770 beneficiaries over a period of some 30 years. Since February 2016, added Mr Ndaba, payments totalling R141m had been made to some 3 520 beneficiaries. More than 1 300 beneficiaries from neighbouring countries had also received a total of R51m. A tracking and tracing process with a call centre had been introduced, while more health clinics had been provided. The deputy minister of mineral resources, Godfrey Oliphant, had also launched outreach and awareness campaigns to help trace former mineworkers, while the World Bank, the Chamber of Mines, and other organisations were providing additional support.57

Further progress has since been made, but the data available is often inconsistent. According to a parliamentary briefing in October 2017, payouts totalling some R204m were made to some 5 300 miners and former mineworkers in 2016/17, which was well up on the R80m which had been paid out to some 1 770 claimants in the previous year. However, the commission still had a backlog of some 94 000 claims (down from 106 000 in November 2016), which had already been approved by the MBOD but had yet to be paid out. In addition, the claims of between 300 000 and 500 000 mineworkers still needed to be assessed.58

The CCOD’s financial records remain chaotic, with major gaps in the recording of revenue received and claims submitted. Its financial statements for 2010/11 and 2011/12 were submitted to Parliament only in August 2017, while the equivalent data for subsequent financial years still has to be recorded and audited.59

Since 1999, the government has wanted to integrate the Odimwa and Coida systems, so as to provide a uniform compensation dispensation for all employees, including mineworkers. However, the administrative problems and payment backlogs at both the CCOD and Coida’s Compensation Fund must first be resolved, it says.

The persistent failures of Odimwa have helped prompt the bringing of a number of civil suits against mining companies. However, whereas compensation under Odimwa is payable irrespective of whether mining companies have been at fault, any civil claim for damages can succeed only if the plaintiff can prove negligence and wrongfulness on the part of the defendant. This burden of proof is not easy to discharge.

The Nkala case

The Nkala case (named after the first applicant, Bongani Nkala), began in 2012 and is being brought with the help of Richard Spoor Inc, Abraham Kiewitz, and the Legal Resources Centre. Here, 69 applicants are seeking to bring a class action against 32 gold mining companies as regards the 82 gold mines under their control. The applicants’ objective is to claim compensation on behalf of all current and former mineworkers who contracted silicosis or pulmonary TB while working underground on these 82 mines. Where former mineworkers have already died, the aim is to claim compensation on behalf of their dependants. As the first step in a much longer process, the applicants applied to the Johannesburg high court for an order ‘certifying’ or authorising the bringing of the class action.60

A class action allows one or more plaintiffs to bring a lawsuit on behalf of a wider group or ‘class’ of people who are similarly situated. Its great advantage is that it ‘allows for a single finding on the issues, which binds all the plaintiffs and all the defendants’.61 In May 2016 the high court ruled that all the requirements for the certification of the class action had been met. This ruling has paved the way for the class action to proceed. Those eligible to join in the action include current mineworkers suffering from the diseases in issue, former mineworkers dating back to 1965, and the dependants of mineworkers who have already died. According to the court, the number of people eligible to participate in the class action could range from 17000 to 500000.62

The high court judgment has been widely hailed by commentators. However, there are many weaknesses in the ruling which will make the class action very difficult to manage when it comes to trial. It is doubtful too whether the trial court will be able to provide ‘a single finding on the issues, which binds all the plaintiffs and all the defendants’. Yet this is what a class action is supposed to achieve.

Particularly noteworthy are the court’s rulings that:

1 the overall consolidated class should be divided into two sub-classes, a silicosis sub-class and a TB sub-class, as those suffering from TB would not necessarily have contracted it because of silica dust and the issues for decision would be different as between the two groups;

2 a ‘bifurcated’ or two-stage process would be used, in which the issues common to both classes would be decided in the first stage, while the issues relevant to each sub-class would be considered in the second;

3 in the first stage, the common questions of fact would revolve around the extent to which mineworkers had been exposed to silica dust, while the common questions of law would examine whether all the mining companies had breached their legal obligations to their underground employees; while

4 in the second stage, once the common questions of fact and law had been decided (and presuming that these decisions went against the mining companies), the requirements for liability in delict would have to be met. Since such liability depends on the wrongdoing of the particular defendant, claimants would have to show that their particular employers had acted wrongfully and negligently towards them.

Explained the court: The second stage would focus on ‘scrutinising and determining’ the ‘individual culpabilities’ of the different mining companies’.63 The mining companies could not be held ‘jointly liable’ for the harm suffered by the mineworkers, because the law of delict makes it clear that ‘a defendant can only be held liable for his own delict and not that of another defendant’. Hence, ‘the liability of each mining company would be determined at the second stage, when all the mineworkers and all the dependants of deceased mineworkers had staked their claims. At that stage, these claims would be paired against the respective mining company(ies) alleged to have committed the delict [and] each mining company would be held responsible for its own actions or unlawful omissions.’64

The weaknesses in this decision are legion. A class action is normally brought on behalf of a single class of claimants, but here two classes of claimants have had to be recognised because each class will have to prove a different set of facts. A class action normally involves ‘the same claim against a single defendant arising from a single wrong committed by that defendant’. But the Nkala case involves 32 defendants and 82 mines, each of which at different times used different means – with differing degrees of efficiency – to guard against dust and disease.

The great strength of a class action is normally that ‘it allows for a single finding on the issues, which finding binds all the plaintiffs and all the defendants’. But, in the Nkala case, no single finding can be made.

The supposedly common questions of fact and law may be relatively quickly decided in favour of the plaintiffs – but what is to happen thereafter? As the high court ruled, the mining companies cannot be held ‘jointly liable’ in delict. In the second stage, each plaintiff will have to prove the delictual liability of the particular company for which he worked. If he worked for more than one company, complicated factual and legal questions as to which of them is to be held liable are sure to arise.

What might initially seem like a single – and perhaps relatively simple – class action will soon fragment into 50000 (or more) individual claims, each of which will need to be proved and adjudicated on its own particular facts.

Some of the mining companies have petitioned the Supreme Court of Appeal (SCA) for leave to appeal against the high court ruling, arguing that this judgment failed adequately to address a number of important issues. Leave to appeal has been granted and the matter has been set down for hearing by the SCA in March 2018.65

Six of the biggest gold mining companies have formed a working group which is seeking to achieve a settlement that will be fair to all and sustainable for the mining industry. The group argues that a reasonable settlement ‘would be preferable to a lengthy court engagement that would benefit only the lawyers’. Settling out of court would also provide more certain benefits to the mineworkers, as a court action always generates both ‘losers and winners’.66

The six mining companies plan to establish a legacy fund to provide compensation to mineworkers made ill by silica dust. What size this fund will need to be remains uncertain, as no one yet knows how many claimants might need to be helped. By September 2017, the six major companies had set aside some R5bn for this legacy fund, while attorney Richard Spoor said that ‘broad agreement’ on the terms of a settlement had been reached.

The class action has focused global attention on South Africa’s gold mining companies and their apparent failures to help the sick and suffering. The extent to which particular companies acted wrongfully and negligently has still to be decided by the courts (unless a settlement is indeed reached). But the mineworkers should long since have received the compensation due to them under Odimwa. Instead, the statutory system has largely collapsed under the weight of increasing administrative incapacity, ‘leaving thousands of sick and injured workers in the lurch’, as Mr Spoor has pointed out.67

Finding the right policy balance

Health and safety challenges have long been acute in South Africa’s often deep and dangerous mines.  They have been a profound concern for both governments and mining companies for well over a century. To a large extent, and particularly in the last 20 years, they have also been successfully addressed by the mining industry through comprehensive research, sophisticated technology, and increasingly stringent health and safety protocols, backed by employee incentives and bonuses that seek to prioritise safety over production.

The industry has embraced ‘zero harm’ targets for both fatalities and new cases of silicosis, and these targets are coming closer to being met by 2020 and 2024, respectively. Deaths in deep mines, given seismicity and human error, will always be difficult to prevent. But mine fatalities (at an average of some 90 deaths a year since 2012) are not much greater than those in construction and far below the average of 13500 deaths on the roads each year.

Policy and regulation have an important part to play in safeguarding lives and health. Mining companies have always had a common law duty to provide a reasonably safe working place. The MHSA reflects and repeats that obligation. But the statute also has various provisions which are overly broad and lend themselves to selective enforcement and even to abuse.

Some safety stoppages have clearly been imposed for trivial reasons. Such abuses must stop. The relevant wording in the MHSA should be tightened up to make sure that this occurs. Inspectors who order stoppages for no rational reason should be held personally liable for any legal costs incurred in court applications to have their instructions set aside. In particularly egregious instances, they should also be held personally responsible for at least some of the enormous costs of unnecessarily halting production.

As regards silicosis and pulmonary TB, every effort must be made, as the mining industry is already intent on doing, to reduce dust emissions and protect mineworkers. The government’s key obligations are to support these initiatives, applaud all successes, and resort to penalties only where these are objectively required.

The government must also maintain (if necessary, via public-private partnerships) a statutory compensation system that provides adequate compensation and is highly efficient. It should long since have increased the maximum monthly wage used in computing compensation under Odimwa from R3000 to R20000, which would be far closer to the current average monthly wage in mining. It should immediately take steps to integrate Odimwa with Coida, so as to the make Coida’s more generous compensation formula available to mineworkers too. If the major backlogs under both these systems must indeed first be resolved, then every effort must be made to ensure that this is swiftly done.

In the interim, the government’s failure to get Odimwa working has encouraged a number of civil claims against the gold mining sector, where silica dust has always been difficult to control. However, whereas compensation under Odimwa is payable irrespective of whether mining companies are at fault, any civil claim for damages can succeed only if the plaintiff can prove negligence and wrongfulness on the part of the defendant. This burden of proof is not easy to discharge.

Great efforts and resources have been put into the Nkala case, which began in 2012 and was certified by the Johannesburg high court in 2016, so paving the way for this major class action to proceed. However, as earlier noted, this judgment is deeply flawed. The great strength of a class action is normally that ‘it allows for a single finding on the issues, which finding binds all the plaintiffs and all the defendants’. In the Nkala case, however, there are two classes of plaintiffs, a plethora of defendants with differing records on dust control, and no prospect of a single judgment that will be binding on all.

The Nkala ruling has raised great hopes of a quick and easy resolution to the plight of thousands of people. However, if the class action proceeds to trial, those hopes are likely to be dashed.  It is also unlikely that a trial will ensue, as mining companies will want to avoid the reputational damage such litigation is sure to generate. A settlement is being sought and is thus likely to be reached. Yet any settlement of this kind is likely to provide the catalyst for many other class actions, which may also have to be settled to avoid adverse publicity.

Who knows where this process could end? What is clear, by contrast, is that the mining industry in South Africa is already in significant financial difficulty. Commodity prices remain constrained; input costs are going up (electricity alone by 19.9% in 2018 if Eskom has its way); proposed amendments to the MPRDA could yet impose both price and export controls on a host of minerals; and the 2017 mining charter, if implemented in its current form, will so erode the security of mining rights as to make the industry ‘uninvestable’. Already, thus, major potential investors are turning away from South Africa to other countries where the government is less hostile and mining legislation is more stable, competitive, and certain.

Protecting health and safety in South Africa’s deep and often dangerous mines is vital. But policies and laws must strike the right balance. The government should recognise and applaud all that the mining industry has done to reduce fatalities and diminish dust. DMR inspectors should not be allowed to order safety stoppages for trifling reasons, or otherwise abuse their regulatory powers. The government (with private sector help) should maintain an adequate and efficient statutory compensation system for those who contract debilitating diseases underground.  And class actions should be certified only where the core requirements for such litigation, as set out by the Supreme Court of Appeal in the Children’s Resource Centre case, have very clearly been met.

The legacy issues that have tainted the industry and eroded trust need also to be acknowledged.  But a constant focus on the evils of the past will deter fresh investment and make it harder still for the industry to survive and thrive.

Bernard Swanepoel, a former CEO of Harmony Gold, says that 100 years of exploitative labour practices are part of the industry’s problem, along with acid mine drainage and often ‘inexcusably high remuneration’ for executives. But he also says: ‘If we are continuously going to look at the past, at what went wrong, we’ll kill the industry. Because if you want today’s investors to pay for all sins of the past, they are not going to do that. They are going to run away. And you are going to have no funding and you are not going to build the next generation of mines.’68

Anthea Jeffery is Head of Policy Research, IRR. This Synopsis summarises a report published today in @Liberty, the IRR’s policy bulletin.

References

1 Anthea Jeffery, ‘Back to the drawing board on mining law’, @Liberty, Issue 30, IRR, Johannesburg, October 2016,  p2

 2 Anthea Jeffery, ‘EED is for real empowerment, whereas BEE has failed’, @Liberty, Issue 31, IRR, Johannesburg, April 2017, p47

 3 Business Day 4 December 2017

 4 2017 South Africa Survey, IRR, Johannesburg, 2017, p844; 1999/2000 South Africa Survey, IRR, Johannesburg, 2000, p314; John Kane-Berman, ‘Diamonds and All That: The Contribution of Mining to South Africa’, @Liberty, Issue 30, IRR, Johannesburg, February 2017, p9; Business Report 11 July 2010

 5 Nkala and others v Harmony Gold Mining Company Ltd and others, South Gauteng High Court, Consolidated Case No: 48226/12, [2016] ZAGPHC 97, paras 17-18

 6 John Kane-Berman, ‘Diamonds and all that’, pp 9, 10

 7 Chamber of Mines, Safety in Mining, Fact Sheet 2017; City Press 20 September 2015

 8 www.sahistory.org.za/luli-85, 15 October 2015;  AngloGold Ashanti, Gold Fields, Harmony, SibanyeGold, Fact Sheet: Safety in Deep Level Mining – Aiming for Zero Harm, (Safety Fact Sheet), 2014, p1; ‘SA gold mines in big trouble’, Fin24, 9 September 2015

 9 Industry Report, Gold, ‘Where we are, where we’re going, Deep level gold mining in South Africa’, Mining Review Africa, 1 July 2015, pp44-50, at p44-46

 10 Safety Fact Sheet, p5;  ‘Where we are, where we’re going’, op cit, pp45-46

 11 The New Age 2 September 2016

 12 Safety Fact Sheet, p3

 13 Safety Fact Sheet, p5

 14 Chamber of Mines, Safety in Mining, Fact Sheet 2017, p3

 15 2017 Survey, p844; 1999/2000 Survey, p314; Kane-Berman, ‘Diamonds and All That’, p9; Business Report 11 July 2010

 16 The New Age 2 September 2016; 2017 Survey, p843; Business Day 20 January, 19 September 2017; Safety Fact Sheet, pp3-4; Chamber of Mines, Safety in the Mining Industry, Performance at a glance, January 2017, p1

 17 The New Age 1 August 2016, Business Report 3 September 2017; Automobile Association of South Africa, www.wheels.co.za, 9 June 2017; iol.co.za, 9 October 2017

 18 Business Report 3 September 2016, The New Age 1 August 2016, City Press 31 July 2016

 19 Thembekile Mankayi v AngloGold Ashanti Limited, [2011] ZACC 3 (CC), at paras 41-49

 20 Sections 55, 54(1), Mine Health and Safety Act (MHSA)

 21 bdlive.co.za, 21 September 2015

 22 City Press 20 September 2015

 23 Ibid

 24 Bert’s Bricks (Pty) Ltd and Explo-Clay (Pty) Ltd v Inspector of Mines (North West region), Principal Inspector of Mines (North West region), Director General, Department of Mineral Resources, and the minister of mineral resources, North Gauteng (Pretoria) High Court, 9 February 2012, Case No 15347/2011, pp1-3

 25 AngloGold Ashanti v Xolile Mbonambi and others, Labour Court of South Africa, Johannesburg, Case no J2459/16, 4 November 2016, p4

 26 Ibid, pp7-8

 27 Ibid, p13

 28 Ibid, pp13-14

 29 Ibid, p16

 30 Business Day 16 August 2016

 31 Ibid

 32 Terence Corrigan, ‘Suing over Section 54: Is this a solution?’ Moneyweb, 1 February 2017, p1

 33  Ibid, p2

 34 Chamber of Mines of South Africa, Tuberculosis in South Africa, Fact Sheet 2017

 35 Nkala, op cit, paras 12-14

 36 Nkala, ibid, para 15

 37 Chamber of Mines, TB Fact Sheet, p1

 38 Ibid, p2

 39 Gill Nelson, ‘Occupational respiratory diseases in the South African mining industry’, Global Action Health, 2013; 6:10.3402/gha.v6i0.19520, published online 24 Jan 2013.doi: 10.3402/gha.v6i0.19520, p9; Mine Health and Safety Council, ‘Every mine worker returning from work unharmed every day, Striving for Zero Harm’, 2014 Occupational Health and Safety Summit Milestones, p4

 40 Mankayi, op cit, paras 30-36

 41 Ibid, para 37-38

 42 Sections 61, 54, Odimwa

 43 Murray et al, op cit, S70

 44 Sections 46-48, 80, Odimwa

 45 Section 36A, Odimwa;  Section 80 (2), Odimwa;  Section 105, Odimwa; Government Gazette, No 32845, 28 December 2009; 2017 Survey, p419

 46 Section 80, Odimwa; see also African Rainbow Minerals et al, Occupational Health in the South African Mining Industry, Fact Sheet 2016; ‘Coughing up for Gold’, Daily Maverick, 14 March 2014, p4

 47 ‘Coughing up for Gold’, p4

 48 Nelson, op cit, pp7-8

 49 Ibid, pp7-8

 50 Ibid, p2

 51 Ibid

 52 Sunday Times Business Times 27 November 2016

 53 Business Day 11 October 2017

 54 Nelson, op cit, p5; see also ‘Coughing up for Gold’, op cit, p2; Kevin Crowley, South Africa Mine Workers Set to Receive Lung Disease Compensation, Bloomberg, 1 September 2017;  Anthea Jeffery, ‘Pressing Ahead with NHI Implementation’, @Liberty, Issue 34, November 2017, pp 26-30

 55 Miningnews 26 July 2016, Business Day 15 August 2016, Sunday Times Business Times 27 November 2016

 56 Business Day 15 August 2016

 57 DMR briefing, ‘Mine lung diseases’, 29 November 2017, p2; Sunday Times Business Times 27 November 2016

 58 Business Day 11 October 2017

 59 Ibid

 60 Business Day 18 August 2016

 61 Business Day 18 August 2016; Nkala, op cit, para 33-34

 62 Nkala, op cit, paras 2, 6; see also Kane-Berman, ‘Diamonds and All That’, p11

 63 Nkala, paras 223-225

 64 Nkala, para 225

 65 Business Day 28 July 2017

 66 Business Day 18 August, The Times 26 August 2016, Business Report 9 February 2017; Kane-Berman, ‘Diamonds and All That, p11   

 67 Kane-Berman, ‘Diamonds and All That’, p11

 68 Ibid, p28