Klass Looch Associates

Employer OHS Champion since 1986 

Sick miner to challenge'pittance' in Appeal Court.
Mining industry abuzz as AngloGold faces R2.7m claim for worker's ruined health. The Sunday Times. 28 February 2010.

By Rob Rose

A miner suffering with silicosis and paid only R16320 to disappear will challenge AngloGold Ashanti in the Supreme Court of Appeal on Thursday in a high-stakes case for the mining industry. Thembekile Mankayi, who worked for AngloGold for 16 years between 1979 and 1995, was booted out "as a result of his medical condition". That medical condition, first diagnosed as tuberculosis in 1993 while silicosis and "obstructive airways disease" were added later, came from working in AngloGold's mines. Lawyer Richard Spoor, a long-time nemesis of the Anglo American group, said "exposure to harmful silica dust and gases (in AngloGold mines) caused or materially contributed to the fact that he developed tuberculosis, obstructive-airways disease and silicosis". Mankayi, who has only ever worked as a miner or manual labourer, has only a Standard 5 education. Spoor argues that because of his illness, he is disabled and will in all likelihood "remain unemployed for the rest of his life". He has been claiming an extra R2.7-million in damages from AngloGold, but he was thwarted in the High Court in Johannesburg in June 2008 on a technical legal point. Now, he is appealing the case to the Supreme Court of Appeal in Bloemfontein, which will be heard this week. AngloGold is arguing that Section 35 of the Compensation for Occupational Injuries and Diseases Act effectively takes away an employee's common-law right to sue his employer for damages. But the outcome of Thursday's Supreme Court hearing could result in a swing of many millions of rands in the profit statements of big mining companies. In its heads of argument prepared for next week's case, AngloGold said if Mankayi was right, then it would "result in a very substantial increase in liability for mine owners". AngloGold said it could lead "to the premature closure of more marginal mines and thus leading to hardship on the part of employees". Spoor, something of a scourge of the mining industry, is no stranger to precedent-setting legal cases. In 2003, he spearheaded litigation that resulted in Gencor agreeing to pay compensation of R490-million to victims of asbestos-related diseases. Much of next week's argument will hinge on a complicated but important legal point, highlighting the schizophrenic legal regime for people who contract diseases at work. Mankayi got a meagre R16320 from a compensation fund to which mines contribute in terms of the Occupational Diseases in Mines and Works Act (Odimwa), which regulates how mines deal with lung diseases. But while this law caps payments for lung disease in miners to R2000 a month (an amount not increased since 1993), other industrial workers can claim up to R13394 a month under the Compensation for Occupational Injuries and Diseases Act. Even though Mankayi was not compensated under this act, AngloGold argued successfully in the High Court that Section 35of that law deprived him of his right to sue for damages. Spoor argues that if the decision stands, it discriminates against mineworkers - the very people who are most at risk of getting lung diseases at work. He argues that it would be particularly "harsh" on mineworkers like Mankayi, who have sacrificed their health and their lives for the mining industry only to be discarded with a tiny payout. Spoor said this week that this was a perverse incentive for the mining industry to avoid fixing anything. "As long as it is cheaper for the mining industry to continue compensating mineworkers than it is to take the steps to prevent disease, the industry will continue to cripple and maim mineworkers on an industrial scale," he said. But in its court papers, AngloGold countered that it would be "harsh to require of mines that they pay levies to a compensation fund, and yet receive no benefit in the form of statutory protection against (claims)". Other mining companies will be watching this week's case closely, partly because there are many such damages cases in the wings.
Anglo American itself faces at least eight such claims and, in a letter to Mankayi's lawyers in May 2007, its lawyers said that a "decision in favour of (Mankayi) will therefore also be decisive as far as it concerns those eight matters". Mankayi's lawyers responded: "There are tens of thousands of ex-goldmine workers in the position of Mr Mankayi ... we confirm that we represent several hundred such workers and, depending on the outcome of this case, many new claims may be filed." Given the high stakes, the Supreme Court's decision is unlikely to be the end of the story. Spoor says Mankayi will approach the Constitutional Court if he fails in Bloemfontein, arguing that the current laws governing compensation payable to sick mineworkers is "discriminatory". Equally, AngloGold is likely to want to fight the case for an outcome favourable to it.

Court rules in favour of AngloGold in R2,7m silicosis case. Mining News of 27 June 2008. 'The Johannesburg High Court, on Thursday, ruled in favour of gold-miner AngloGold Ashanti in terms of a R2,7-million occupational health disease claim lodged by a former employee, Thembekile Mankayi. The ruling had also settled a dispute on whether mineworkers, who had already been compensated under the Occupational Diseases in Mines and Works Act (Odimwa), could be able to claim compensation from their employers. The case was seen as a test case and had the potential to open mining companies to thousands of lawsuits said to be worth millions of rands. In February, the High Court held hearings in which the relationship between the Odimwa and the Compensation for Occupational Injuries and Diseases Act (Coida) were in dispute. AngloGold Ashanti 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 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, the Odimwa. In opposition, AngloGold Ashanti's counsel said that the two pieces of legislation had been intended to be read together. AngloGold Ashanti, on Thursday, commented that the ruling confirmed that employees who qualified for benefits in respect of Odimwa could not, in addition, lodge civil claims against their employers in respect of their relevant conditions AngloGold Ashanti said it considered the finding to be fully in line with compensation law. "We believe that the social contract implied by the Odimwa and similar statutory compensations systems, where employees afflicted by occupational injuries and illnesses receive a predetermined compensation without having to suffer the expense and inconvenience of prosecuting legal actions, and in return waive the right to civil claims, is a just one, offering easier access for employees and greater certainty for employers," the company said in a statement. Attorney Richard Spoor, who represented Mankayi, was not immediately available to comment on the ruling. "This case is an attempt to deal with far deeper and more fundamental problems. We are doing this to attach a certain value to human life and human health, because the current system attaches no value to life. It is bad and defective and it has to be fixed, but if you fix it, it will be expensive," Spoor told Mining Weekly Online in an interview earlier this year. At the time, he said that the objective of the hearing had been to clear the way to file class-action lawsuits and force the mining companies into a settlement. Mankayi had lodged the R2,7-million claim after he had received a lump sum of R16 316 under the Odimwa as compensation after being dismissed from the gold mines where he had worked for 16 years, on the grounds of medical incapacity. Mankayi had worked at AngloGold Ashanti's Vaal Reefs mine in the 1990s

Liabilities and legal claims arising out of industrial accidents and diseases

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