[miningmx.com] — THE Constitutional Court will soon reach a decision on the special indemnity enjoyed by South African mines regarding the incurable lung diseases that have killed thousands of mineworkers.
The legal activist team that has driven the matter to this point is, however, virtually bankrupt after having been repeatedly defeated in both the High Court and the Court of Appeal since 2006.
Thembekile Mankayi, a former AngloGold Ashanti employee, is attempting to sue the gold heavyweight after silicosis left him medically unfit in 1995 – at the age of 37.
AngloGold has so far successfully argued that Mankayi and all former mineworkers are not entitled to sue the mines.
Mankayi’s legal representatives, Richard Spoor and Charles Abrahams, are both well-known public interest lawyers who were previously involved in lawsuits against the asbestos industry and in apartheid reparation cases, respectively.
After three additional prominent legal experts were involved at the Court of Appeal stage and were not paid, Abrahams was placed on a black list, the court heard on Tuesday.
The additional unpaid legal assistance was unavailable for the Constitutional Court case and on Tuesday Spoor presented Mankayi’s case on his own.
If the Constitutional Court also finds that Mankayi cannot sue AngloGold, the matter will probably return to the High Court and again proceed to the Constitutional Court via a new approach.
On Tuesday Spoor asked the court to set costs should he win the case.
This was despite a previous agreement that neither he nor AngloGold would ask for costs to be awarded.
Financial support for this important case had been promised from several quarters, but it had not materialised, Spoor said.
Dual system under spotlight
The case deals with the country’s dual system of compensation for occupational diseases.
South Africa has a centralised system for compensating occupational injuries and diseases in terms of the Compensation for Occupational Injuries and Diseases Act (Coida).
The act bars workers already receiving compensation from also suing employers.
Only mineworkers with lung diseases are barred from this system; they are compensated in terms of the Occupational Diseases in Mines and Works Act (Odimwa).
The Odimwa compensation is in every respect inferior to the general compensation – even for precisely the same medical conditions.
The burden of medial care and retirement sans pension is then carried by the public health system and the families of sick workers.
But a worker left medically unfit from a lung disease in a factory receives a lifelong pension.
A mineworker in the same situation receives a small once-off amount and then has to rely on government’s social grant system.
Mankayi wants to sue AngloGold for R2.7m after having received, in 1998, in terms of Odimwa, a one-off amount of R16,320.
AngloGold argued that the two systems actually together created a single system and that Coida’s prohibition from suing also applied to mineworkers.
Both systems serve as insurance schemes for the country’s employers, but mines are protected to the extent that they have no incentive to protect workers’ health, said Spoor.
That was one of Spoor’s strongest points, said Deputy Chief Justice Dikgang Moseneke.
Spoor asked the court to give a “more constitutional’ interpretation of the Coida and the Odimwa systems, with the emphasis on rejecting discrimination.
AngloGold’s legal representative Chris Loxton argued that the dual system did not necessarily discriminate against mineworkers.
The minister of health could decide to increase their compensation, he said on Tuesday.
An increase comprising a once-off payment was announced at the end of last year. This was as a result of negative publicity around the Mankayi case, said Loxton.
The minimum payment was increased from R7,000 to R35,000 while the R87,500 maximum was raised to around R108,000.