AConstitutional Court ruling last week in favour of a former AngloGold Ashanti worker in an occupational disease case has opened the door to legal claims against the mining industry.

The ruling has enabled mineworkers to sue for health damages under common law.

Thembekile Mankayi, who developed a lung disease while he worked at AngloGold Ashanti between 1979 and 1995, lodged a civil claim of more than R2,6-million after he had been compensated under the Occu- pational Diseases in Mines and Works Act (ODIMWA).

The court had to decide on whether miners, who had been compensated under the ODIMWA, could claim compensation from their employers, or whether a section of the Compensation for Occupational Injuries and Diseases Act precluded common law claims.

Mankayi died two days before the Constitu- tional Court ruling.

Attorney Richard Spoor, who represented Mankayi in the Constitutional Court case in respect of the ODIMWA matter, told Mining Weekly that mining companies could now face potential liability associated with lung diseases, in particular.

“There are between 300 000 and 500 000 ex-mineworkers in South Africa who suffer from these diseases, so the potential liability is huge, with examples of earlier cases achieving settlements of up to R700-million” he noted.

Webber Wentzel partner Warren Beech explained to Mining Weekly that the ruling clarified the situation for workers, enabling them to sue their employers for substantial amounts of money.

However, he pointed out that it was a difficult and complex situation, as these legal claims would be normal civil cases in the High Court.

“Such claims result in expensive litigation processes of easily four to five years, which most mineworkers will not be able to afford. If the workers do not get help from legal aid organisations or the Human Rights Commission, it may not be worthwhile for them to sue,” he noted.

Beech added that mining companies would probably oppose the judgment, but said that they would have a lot of homework to do, as their reputation and history did not count in their favour.

Spoor added that mining companies could argue that they were compliant and not negligent.

“However, evidence exists that mineworkers have been neglected and the record for mining companies, particularly gold miners, on preventing lung disease is very bad,” he said.

Spoor aimed to pursue gold-mining companies, as he believed that they were neglecting their workers’ health.
He added that proving liability would not be particularly complex, but putting together claims would be challenging, as there were many precedents involved.

“It would take time and a lot of hard work, with limited resources,” he said.

Meanwhile, AngloGold Ashanti said in a statement that it was still studying the details of the judgment.

“Our initial impression is that, should the executor of Mankayi’s estate wish to pursue his claim, he or she will now need to return to the High Court to continue with the litigation action.”

AngloGold Ashanti would defend the case on its merits, as it would do should other individuals lodge similar claims. The com- pany added that it had been working on occu- pational health challenges for some time.

Spoor noted that, although he had been working on similar cases for a number of years, the Mankayi case would be the deciding factor in all such cases.

“There is still a long way to go, and not much more can be done until this case is resolved,” he concluded.

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