JOHANNESBURG (miningweekly.com) - The Supreme Court of Appeal in Bloemfontein will hear an argument on Thursday, in the appeal of a sick Eastern Cape miner who is suing South African gold major AngloGold Ashanti for R2,6-million.

Former miner Thembekile Mankayi alleged that he contracted different irreversible lung diseases as a mineworker while working for the mining group over 16 years, which was caused by AngloGold's wrongful and negligent acts or omissions.

In 2008, Gauteng South High Court Judge Meyer Joffe found in favour of AngloGold Ashanti, whereafter Mankayi successfully applied for an appeal.

Mankayi's lawyer, Richard Spoor, said that the matter focused on the right of former mineworkers who have contracted occupational lung diseases to sue their employers on the grounds of negligence.

In 2008, the High Court held hearings in which the relationship between the Occupational Diseases in Mines and Works Act (Odimwa) and the Compensation for Occupational Injuries and Diseases Act (Coida) were in dispute.

AngloGold Ashanti's and Mankayi's counsels had had differing interpretations of section 35 of Coida and whether or not mineworkers who had contracted occupational lung diseases, such as silicosis, were barred from suing their employers.

Mankayi's counsel had argued in the High Court that their interpretation of the Act would allow him to claim for enhanced compensation, including future loss of earnings, and future medical cost coverage, as he was compensated under an entirely different Act, Odimwa.

In opposition, AngloGold Ashanti's counsel had said that the two pieces of legislation had been intended to be read together.

Spoor told Mining Weekly Online on Wednesday that it was important to note that the benefits under Odimwa, had not increased since 1994, and that the value of the compensation was now about 20% of what it was in 1994.

Odimwa, which was administered by the Department of Health, provided benefits that were substantially inferior to those provided by Coida.

Spoor said that the appeal would centre on the proper interpretation of the prohibition (section 35) of Coida.

"It was already proposed in 1998 that Coida and Odimwa should be brought in-line with each other, however, to date, this has not been done, largely owing to disagreements between the mining industry and government on who is going to carry the economics of the proposal and appropriate compensation for these workers."

Spoor pointed out that when an industrial worker contracted silicosis he or she would receive substantial compensation under Coida.

"However, if you are a mineworker, the court's former ruling basically said ‘toughies'. Our argument is, that the court should understand the history of South Africa and that mineworkers have always been treated separately and worse than industrial workers when it comes to the interpretation of the law. Currently, mine corporations are basically saying ‘who cares', workers who contracted lung diseases must go to the compensation commission and get their 5c worth."

Spoor said that should Mankayi win his case, it would mean that big corporations "would need to account for the harm that they cause their workers"."

He said that Mankayi was hoping for a ruling that would confirm the right of former mineworkers to sue their employers as the implications of a successful appeal would be important.

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