EDITORIAL: Silicosis settlement offers some justice after the horrors
The R5bn silicosis settlement is important and historic for a number of reasons
The name of the R5bn trust established to provide compensation for mine workers made ill by silica dust in the mines — Tshiamiso — is a Setswana word meaning "to make good" or "to correct".
It has been appropriately chosen as the legal settlement — signed on Thursday — from which the trust arises is at last a recognition by mining companies of the need for reparations, particularly for black mine workers, who for decades worked in mines in unsafe and unhealthy conditions.
All workers were exposed to dangerously high dust conditions, but there is no question that black workers suffered the worst of it. It was black mine workers who worked in the dustiest parts of the mine and did not have showers and changing rooms on the surface to wash the dust from their bodies.
In medical examinations, says the Legal Resources Centre (one of the litigants), black miners underwent mini X-ray tests that were difficult to read and did not effectively detect silicosis. White miners, on the other hand, had full-size X-ray tests.
The unofficial truth was that when sick or injured, black mine workers went home to die.
As well as being the biggest and most expensive class action in SA yet, it is also an outstanding example of South African negotiation at its best
The shame and horror of mining under apartheid lives on in the bodies of those mine workers and their dependants, now sick or deceased in the far-flung hills of the Eastern Cape, Lesotho, Mozambique and further afield. The settlement, which will see seven mining companies making provision for R5bn in payouts and mine workers or their dependants receiving payments of between R70,000 and R500,000 will go some way to compensating for this historical wrong.
The silicosis settlement is important and historic for other reasons too. As well as being the biggest and most expensive class action in SA yet, it is also an outstanding example of South African negotiation at its best. Instead of a protracted and even more expensive lawsuit, the parties opted for a mediated process. The mediation, which involved seven mining companies and several groups of claimants, was enormously complex and involved many diverse interests. It took almost six years to finalise. It was a testament to both the commitment and skill of the parties that it reached finality. The final agreement must still be certified by the high court before it comes into force.
But while the mediation was the crowning achievement, it took some tenacity and a long legal struggle before mining companies were ready to sit down at the table.
That fight was led largely by activist and human rights lawyer Richard Spoor, who went through three rounds in the courts before it was established that mine workers were entitled to make civil claims for diseases or injuries contracted at work.
When Spoor began his fight, the Occupational Diseases in Mines and Works Act, which provided compensation for occupational lung diseases, was presumed not to allow for civil claims on grounds that, it was assumed, an adequate compensation system was in place. Spoor challenged this provision, losing in the high court in 2006 and in the Supreme Court of Appeal in 2008. Finally, in 2011 Spoor won in the Constitutional Court. The judgment provided the impetus for the mediated process.
It was therefore a long and arduous road before mining companies were ready for "tshiamiso" and took on the responsibility to set things right.
Having done so it is now imperative that the trust money reaches those for whom it is intended. A total of R30bn still lies unclaimed in pension and provident funds of former miners. To avoid this happening in this instance, the parties have put what look like admirable plans in place. Mobile clinics with X-ray facilities will travel throughout the labour-sending areas to provide screening and to facilitate the compensation process.
The prospect of some compensation for decades of damage is now in sight.