Class action lawsuit against mining industry in South Africa

by Dean Peacock and Emily Nagisa Keehn

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Dean Peacock is the Executive Director of Sonke Gender Justice and an honorary senior lecturer at the University of Cape Town's School of Public Health. His work and activism over the last 25 years have focused on issues related to gender equality, gender-based violence, men and constructions of masculinities, HIV and AIDS, human rights, and social justice.

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Emily Nagisa Keehn is the Associate Director of the Academic Program at Harvard Law School’s Human Rights Program. She was formerly the Manager for Policy Development and Advocacy at Sonke Gender Justice. Keehn is a specialist in gender, health, and human rights, and has an interest in national oversight and accountability mechanisms for monitoring and enforcing rights. She also works extensively on human rights and penal systems.

The Johannesburg High Court recently authorized South Africa's largest ever class action lawsuit allowing potentially as many as half a million former gold miners with silicosis to seek compensation from the entire South African gold mining industry. Due to amicus interventions from two South African NGOs the case has also highlighted the gender dimensions of silicosis and drawn attention to claims rural women have on the mining industry for compensation.
South Africa's gold mining industry has generated enormous profits at great social cost, especially, of course, for Black Africans. Starting in the 1880s when gold was first discovered, the mining houses colluded with colonial governments to put in place a range of taxes and legislation. These forced black men to leave their small holdings to work in the mines, in order to afford the newly imposed colonial tax inventions. Black women and girls were required by law to remain in rural areas where they carried out the work of raising workers and caring for them when they returned home, often desperately ill.
Once on the mines, black men were forced to work dangerous jobs with little pay and were exposed to malnutrition, tuberculosis, and dangerous levels of silica dust. Countless workers developed silicosis, which scars the lungs, makes breathing difficult and painful, drastically increases vulnerability to pulmonary tuberculosis and can ultimately cause asphyxiation.

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This exploitation remained entrenched for most of the 20th century. The mining industry paid for and corrupted the medical examination boards supposedly in charge of mineworkers’ health. The boards then underreported cases of silicosis thereby decreasing workers’ eligibility for compensation. Together with the Apartheid government, the industry set up a distinct and onerous compensation scheme. One study by Deloitte found that less than 1.5% of claims had been paid out to eligible miners.
With South Africa’s new democratic dispensation in 1994, a progressive constitution has allowed human rights lawyers and mineworkers to use the courts to try and hold the mining houses accountable. In 2011, South Africa's Constitutional Court issued a landmark ruling allowing Thembekile Mankayi, a miner who had contracted silicosis working underground, to sue AngloGold Ashanti for his full loss of wages, damages and medical expenses, regardless of what was already made available to him under the miner-specific compensation scheme. Human rights lawyers leveraged the Mankayi case and petitioned the courts to allow a class action lawsuit in which potentially hundreds of thousands of miners would join together to sue for as much as 20 - 40 bn Rand – up to 2 bn US$.
Two South African NGOs – the Treatment Action Campaign (TAC), an AIDS activist group, and Sonke Gender Justice, a gender equality organisation – applied to join the case as amici curiae, to serve as impartial advisors to the Court and introduce evidence on the social costs of silicosis. They were represented by SECTION27, a human rights law centre.
TAC drew attention to the relationship between silicosis and TB. Sonke offered evidence on the gendered impact of silicosis, particularly the financial, emotional and physical burden borne by women and girls who take care of sick mineworkers when they return home. The amici argued for the authorization of the class action, and the transmission of claims to widows and dependents who relied upon and then cared for thousands of deathly ill workers without support from the industry.
Although the organizations were opposed by the mining houses, in August of 2015 they were admitted as amici and Sonke's affidavit on the gendered impact of silicosis was admitted into the court record. Sonke drew on research its staff conducted in the rural mine-sending communities of the Eastern Cape which showed that caregiving can become a nearly full time effort, requiring women to forego income generating activities and spend the little money they have on medical care and ultimately, the costs of funerals. Girls are also acutely affected, as they are often pulled out of school so that they can either look for work or provide care. The inability of girls to complete secondary school also increases their risk of contracting HIV, experiencing gender-based violence, and of being in inequitable relationships later in life.

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In May this year, the Johannesburg High Court granted its historic ruling. The High Court found the amici’s evidence to be persuasive, and relied upon it to recognize the gendered dimensions of the case. Namely, the court amended existing common law to allow for transmissibility of general damages (pain and suffering) to the widows and dependents of those miners who died in early stages of litigation. Prior to this ruling, if plaintiffs died before pleadings had closed their claims would extinguish and the family members would not be eligible for this type of compensation. The judges wrote: "The amici point out, the common law, in effect, has a gender bias to it and such gender bias, they forcefully argue, is not consonant with our constitutional values and principles."
This ruling sets an important precedent, which in this case, affirms women’s rights and the imperative to remedy the gendered harms imposed by the mining industry. The court recognized that compensation could ease the burden on women and girls caring for ill miners and could indirectly compensate them for the unpaid care they’ve already given. However, the mining industry applied to appeal the High Court ruling and challenged both the certification of the class action and the ruling on transmissibility of damages to dependents of mineworkers. The court rejected the appeal on the class action certification but did allow the appeal on transmissibility.
Nonetheless, the amici continue to engage in media advocacy to draw attention to the legitimacy of women's claims to compensation and Sonke is conducting additional research to bolster the evidence on women’s caregiving in preparation for the trial, likely taking place in 2017. It's time for the mining companies to pay the compensation long overdue to the workers, widows, children, and communities they impoverished (22 September 2016).

Further reading

Thabang, Pooe (2016) “The Silicos is ruling and its far reaching implication on access to justice and the mining sector”, OxHRH Blog, 14 June 2016. 

Peacock, Dean; Keehn, Emily Nagisa (2016) Gold industry appeal in miners silicosis class action is shameful, Bhekisisa, Centre for Heath Journalism, 7 June 2016.

Peacock, Dean; Yawa, Anele; Keehn, Emily Nagisa (2016) Miners seek justice over killer dust, Mail and Guardian, 6 Mar 2015.

Charles, Tanya; Peacock, Dean (2016) Building Community Voice through Litigation? Lessons from the Silicosis Class Action Suit in South Africa. Perspectives, a Journal of the Heinrich Boll Foundation.

Peacock, Dean (2015) Responding Affidavit, South Gauteng High Court, Case No: 48226/12, in the application for admission as amici curiae of Treatment Action Campaign and Sonke Gender Justice in the matter between Bongani Nkala and fifty five others and Harmony Gold Mining Company and thirty one others.  

Peacock, Dean (2014) Founding Affidavit, South Gauteng High Court, Case No: 48226/12, in the application for admission as amici curiae of Treatment Action Campaign and Sonke Gender Justice in the matter between Bongani Nkala and fifty five others and Harmony Gold Mining Company and thirty one others.