JAUNDICED EYE

It’s not mineral wealth that will be South Africa’s salvation. It’s bloody-mindedness.

That’s the one thing, I’ve come to hope, that might yet save this country. After all, although it's a characteristic that exists only in pockets, unlike our gold reserves it’s not been depleted to the point of insignificance.

And our mulishness is of world-class quality. It comes in all colours and defines our history: black, white or coloured; Afrikaner, English-speaker or isiZulu. All of us here, at the pointy end of Africa, can point with pride to centuries of stubborn intractability, of adherence to prickly principle over pragmatic accommodation, sometimes to the point of self-harm.

For the refusal to back off, come hell or high water, can come a very high personal cost. A Supreme Court of Appeal judgment handed down this week gives a glimpse of the repercussions that can result from taking on a powerful and arrogant corporation.

The SCA has ruled that KwaZulu-Natal psychologist Linda Holden can sue mining giant Assmang over a ‘malicious’ complaint to the Health Professions Council of SA. But this SCA ruling is not even the beginning of the end of the matter. It's just another way station in a 12-year war of attrition between Assmang and Holden.

It’s a battle that’s come close to destroying her professionally, bankrupting her financially, and, as she put it to me without the faintest trace of self-pity, “sucked a lot of the joy out of my life”.

Holden’s tribulations started in 2006 when workers at Assmang’s Cato Ridge manganese plant who had been diagnosed by the company’s own doctors as having manganism — a debilitating neurological condition that develops from exposure to high levels of toxic manganese dust — were sent to her for counselling. Holden went beyond the psychological remit of her job and took up cudgels on behalf of the workers, to help them win financial recompense.

Assmang responded ferociously to try to neutralise her. Not only did they immediately end her counselling contract but they reported her to the Health Professions Council of SA for being “in gross breach of professional ethics and guilty of unprofessional conduct”. If found guilty, she could at worst have been struck from the register. In any case, the effects were immediate, with rumours circulating about her ethics and competence, and referrals from other practitioners drying up.

Her attorney, Linda Payne — who has represented an impoverished Holden on contingency throughout the long battle — describes Assmang’s HPCSA complaint as essentially a SLAPP (strategic lawsuit against public participation) action. Basically, this a tactic used by corporations to launch irrelevant but fiendishly expensive legal processes with the aim of intimidating their critics who, lacking deep pockets, are forced to back off.

Instead of backing off, Holden carried on fighting. A year later, when she was exonerated by the HPCSA, she took the fight to Assmang, suing them for malicious prosecution.

It might well have been a foolhardy move but it was also remarkably courageous. Assmang spent large amounts of money to SLAPP down her suit, arguing that it was invalid on a number of technical grounds.

Now, after a dozen years, the SCA has overturned, with costs awarded against Assmang, an earlier High Court ruling in favour of the company. This means she has the green light to sue for malicious prosecution. Depending on how much money Assmang is willing to throw against Holden, this conceivably could take another dozen years out of her life.

Yet, she is going ahead. Why?

Holden says that one of her original motivations was seeing the “piss-poor and evasive, as well as litigious and double-dealing behaviour, that the sick men were subjected to”.

“The effects of these events on my family, on my personal decisions and my future options have been life-altering and constraining. No retirement for me because of hundreds of thousands spent and debts incurred.

“But my unhappiness is nothing compared to the hundreds of Assmang employees poisoned by manganese in a previously ill-fitted plant. They have a lifelong degenerative disease. Many are now dead, short-changed in compensation, with shattered and disillusioned families.

“Would I do this again? Hell no. But I will see this through now, it is too late to stop now. I suppose its an all-or-nothing recklessness?”

Human rights attorney Richard Spoor — the scourge of the local mining sector and broker of the biggest health and safety settlements in South African legal history and himself no stranger to bloody-mindedness — says to me in an interview that Holden is “extraordinarily brave”. Spoor represented the eight Assmang workers counselled by Holden, in an effort to extract recompense beyond the rigid and paltry provisions laid down in the Workmen’s Compensation Act.

Since this legislation is as dated in its concept of natural justice as its 1906 date of enactment suggests, it meant having to prove negligence on the part of Assmang. That’s already legally far more difficult in SA than in many other jurisdictions but the bigger challenge, says Spoor, was Assmang’s “disgraceful lack of corporate morality”.

“Assmang distinguishes itself, in an already tough-minded sector, with its remarkably callous and uncaring attitude to workers. It's as expert at co-opting the unions at its plants as it is at bullying its opponents in the courts.

“Using disreputable overseas medical ‘experts’ — guns-for-hire who make a living acting on behalf of US mining corporations on occupational diseases like manganism — local specialists were disparaged and intimidated. In the end, the only one who wouldn’t back down was Linda Holden.”

“Assmang is very, very aggressive,” says Spoor, who has in the past been unsuccessfully sued by them for defamation. “Internationally accepted best corporate practice is to take responsibility for the harm that your products might cause, whether or not your business has been criminally negligent. It’s an ethos embraced by virtually every modern corporate, including the asbestos and gold miners, but not by Assmang.”

Such medieval corporate behaviour makes comprehensible those calls by the hard left for Radical Economic Transformation (RET) and the expropriation without compensation of White Monopoly Capital (WMC). Except that Assmang is not WMC. It’s already RET. It's a subsidiary of African Rainbow Minerals, which is headed by none other than African National Congress stalwart Patrick Motsepe, the billionaire brother-in-law of our billionaire president.

As well as the release of the SCA judgment, this week also saw an announcement by the National Prosecuting Authority that it would not bring criminal charges against Assmang over the issue because there were “no reasonable prospects of a successful prosecution”. As the Sunday Times notes acidly, “This is despite a commission of inquiry into allegations of manganese poisoning at the factory recommending that the CEO be prosecuted.”

As a long shot, the survivors have turned to the Public Protector. But in vain. The Chapter Nine institution said it could not investigate the NPA’s decision not to prosecute because to do so would be to infringe the doctrine of separation of powers.

Simon Miya, who worked at Assmang for 28 years and is one of a handful of those diagnosed with manganism who is still alive, told the Sunday Times that it was all a reminder that “if you don’t have money and power, your life is worth nothing … The company knew the dangers of manganese but they never warned us about it. We were not required to use masks, we had no protective gear or goggles. They were just killing us slowly and no one will ever be held accountable,” he said.

But the final words should go to Holden.

“I carried and still carry the family narratives of dozens of affected men, black and white, and their families. I saw the men, partners and in many cases their families. It’s these emotional and psychological stories that Assmang did not want out in the public domain.

“I think I saw more people from Assmang than any other specialist and on a more personal level. Neurologists and psychiatrists saw them to diagnose. I saw them to counsel, explain, reassure and support. They told me their pain, their lost hopes and their deepest fears.

“Assmang got me debt and misery. But it got the sick men a death sentence.”

Follow WSM on Twitter @TheJaundicedEye

+ At the time of going to press, Assmang has not replied to my invitation to comment on the judgment and any contemplated further legal action, as well as the negative impressions that many hold regarding a lack of corporate morality, litigiousness designed to intimidate, and a generally uncaring, callous attitude to their workers.

Assmang has since provided comment: 

Would Assmang like to comment on the judgment? Will Assmang appeal the judgment?

The court ruling dealt with the issue of prescription and not with the merits of Linda Holden's claim. Assmang is taking legal advise on whether to appeal the judgment or not.

1. That complaint against Holden to the HPCSA was classic SLAPP behaviour, designed to intimidate. 

The complaints made against Ms Holden to the Health Professional Council of South Africa (HPSCA) was based on objective facts.  Assmang remains of the view that its complaints against Ms Holden were valid and is confident of the reasonableness of its conduct and will oppose any allegations against it to the contrary. 

2. That Assmang's behaviour as regards to the workers with manganism has generally been out of kilter with the moral ethos that is corporate best practice internationally. Instead of simply taking responsibility for the harm it might have done, whether or not the company has been negligent, and making it right, Assmang's response is habitually evasive of its responsibilities and aggressively litigious.

There are no employees that have been diagnosed as suffering from manganism.  Assmang cares for its employees and prides itself in creating a safe and healthy work environment for all employees. This includes complying with all the required safety standards and prescribed manganese medical surveillance protocols in line with the International Manganese Institute (IMnl).

3. That Assmang has a generally uncaring, callous attitude to its workers.

This is not true. Assmang values all its employees and provides a safe and healthy work environment for all employees. We have demostrated over many years for being a responsible employer that cares for the wellbeing of our employees.

ENDS