JOHN BRAND: Silicosis trust has made steady progress despite hitches

In February we marked the fourth anniversary of the establishment of the Tshiamiso Trust, established to carry out the terms of the May 2018 settlement agreement reached between six gold mining groups and claimant attorneys in a well-publicised silicosis and tuberculosis class action. It’s an opportune time to reflect on the progress of implementing this historic settlement agreement.

The groups involved — African Rainbow Minerals, Anglo American SA, AngloGold Ashanti, Gold Fields, Harmony and Sibanye-Stillwater — are known as the founders under the trust deed. The Tshiamiso Trust is responsible for ensuring that all eligible current and former mineworkers of the founders from 1965 to 2018 in Southern Africa with silicosis or work-related tuberculosis (or their dependants, where the mineworker has passed away) are compensated in terms of the settlement agreement and the trust deed.

The Tshiamiso Trust is governed independently from the founders by a board of trustees — three nominated by the companies, two by the claimants’ attorneys and one by the government. It is chaired by Prof May Hermanus, an independent trustee agreed jointly by the companies and the claimants’ attorneys.

Hermanus, formerly chief inspector of mines in the department of minerals & energy and executive director at the Council for Scientific & Industrial Research, spent part of her career in the trade union and NGO movements.

The founders are gratified to note that by April 8 2024 the trust had paid more than R1.5bn in benefits to about 16,500 claimants (see detailed information on the Tshiamiso Trust website). The founders committed R845m over the 12-year lifetime of the trust to fund its operations in pursuit of its objective of providing benefits to eligible claimants. While there has been criticism that progress has been slow, the founders believe it has been reasonable given that:

• After the settlement in May 2018 a great deal of legal and other processes had to be followed, as set out in the settlement agreement approved by the South Gauteng High Court;
• The trustees had to work — at the height of Covid-19 — to establish complex systems, processes, personnel and infrastructure, including a sophisticated information technology system, that would enable the trust to effectively and efficiently provide benefits to eligible claimants, in the amounts and on the terms set out in the trust deed; and
• It took close to 18 months after its establishment for the trust to be able to begin making routine benefit payments to eligible claimants.

According to information supplied by the Tshiamiso Trust on its website over the past few years, there was a surge of claims in the early period from when claims could be lodged. After that initial surge, the number of lodgements showed a steady decline and so have the number of payments. This is a trend that will probably continue, given that as time passes it is likely that fewer individuals with potential claims will learn about the opportunities available to them from the trust.

Nonetheless, there may be remote regions across Southern Africa from where the industry drew labour, commonly known as labour-sending areas, that have not yet been reached through the tracking and tracing work of the trust, which continues. The Tshiamiso Trust’s latest data shows a significant gap between the more than 136,000 claims lodged and the number of payments made to eligible claimants.

There are reasons for this. First, claims must be verified for eligibility against the requirements of the trust deed. After careful examination, more than half of the lodged claims have been found to be ineligible. At this stage, of the more than 80,000 claims assessed by the trust’s independent medical certification panels, more than 50,000 claims have been found to be medically ineligible. This is because these claimants do not meet the criteria for certification of the silicosis and occupational tuberculosis medical conditions covered by the settlement agreement.

In addition, more than 10,000 claims have been deferred until more medical information can be obtained about those claims, while just more than 20,000 claims have been found by the trust’s medical certification panels to be medically eligible. After consideration by a medical certification panel, each one served by medical experts, each claim needs to pass through the trust’s subsequent processes, which include the trust certification committee, the agent representing the founders and payment into the claimant’s bank account.

The data trends are encouraging in that they show that the trust’s systems, processes, employees and infrastructure are working efficiently, in that the trust is processing claims reasonably quickly through these stages once the benefit medical examination stage has been finalised (where this is a necessary part of the claim), and once all the required information is available.

It has been difficult for some claimants to gain access to Tshiamiso medical facilities for benefit medical examinations. This is in part due to limited medical capacity in parts of Southern Africa and the need to make mutually acceptable arrangements with host governments in neighbouring countries. The trust is working hard to address the resulting medical examination backlog.

About 42% of claims received by the trust have been made by dependants of deceased ex-miners. Often there is insufficient medical evidence available to process these claims and in these cases the trust assists dependant claimants to obtain outstanding information.

There are several notable features of the distribution between the various benefit classes under the trust deed in relation to payments made thus far.

Most notable is the large proportion of payments categorised as silicosis class 1 — about 75% of the silicosis payments to living claimants so far. This is the benefit class that covers those with an early stage of silicosis, namely where the lung function impairment is minimal. It is noteworthy that this class consists of a group of workers not covered by the statutory compensation scheme administered by the Medical Bureau for Occupational Diseases, and that the degree of silicosis suffered by such claimants is less than had previously been envisaged.

The proportion of claimants in the more severe benefit classes 2 and 3 may appear surprisingly low to some people, but this proportion is based on the medical evidence submitted to, and approved by, the trust’s medical certification panels. This means the silicosis claimants’ health condition is, overall, not as seriously affected as many might have said was the case. It also means these claimants enjoy a better quality of life than may have been originally considered to be the case. This deals only with living claimants, and it is possible that historically these ratios might not have been the same.

The benefit payment for a class 1 silicosis claim (before an inflation adjustment each February from 2022) was initially R70,000, while for classes 2 and 3 it was R150,000 and R250,000, respectively. The founders are pleased that the trust has made material progress in the implementation of the class action settlement, with the trust’s systems, processes, personnel and infrastructure working well. Where necessary, improvements are being made.

Given the complexities of the settlement agreement, and of the logistics of establishing the trust’s structures and on-the-ground facilities over such a vast area of the subcontinent, the founders are satisfied with the progress made and remain confident that the trust will continue its work to reach as many eligible claimants as possible in the remaining years of its life.

• Brand is convener of the founders’ working group.