Patrick Sitwayi lives in Upper Mcambalala with his wife, five children and three grand children. He is 57 years old and has silicosis from working underground in the gold mines for 22 years. He did not receive any compensation for his illness and is unable to support his family without a job. He has to walk with crutches because his toes became infected and were amputated. He says that this is because of the primitive safety equipment and hot working conditions on the mines. Photo by Thom Pierce.
27 October 2015
As the judges of the South Gauteng High Court prepare their findings in the massive silicosis class action case, Pete Lewis reflects on the failure of the compensation system to protect black mineworkers from the disease, condemning them to poverty and destitution.
The judges of the South Gauteng High Court reserved judgment on Friday in the silicosis hearing which pits lawyers for miners suffering from silicosis and TB against lawyers for South Africa’s top gold mining companies. It is worth reflecting upon the enormity of the matter before the court. Why is it so “historic”?
In the first decade of the twentieth century, white mineworkers’ death rates from silicosis and associated TB reached catastrophic proportions – a virtual wipe-out of the entire cadre of workers in ten years or even less. This was the result of the “speed up” in production after the companies such as Anglo American bundled the small gold mine claims into massive oligopolies for foreign (mostly British) investors to feast upon.
White miners, many of whom were from the tin mines in Cornwall which had been closed, marched and protested. Since they now had the vote after the British victory over the Boer republic at the turn of the century, the colonial state responded, with the Mines and Works Act of 1911. In the following 30 years a system was designed which Professor Jonathan Myers, renowned epidemiologist and expert witness for the mineworkers in the silicosis case, has described as a “benchmark” occupational health system (diagnosis, treatment, and compensation all courtesy of the state) – all, of course, exclusively for white miners.
The Mines and Works Act ensured that white mineworkers were given more and more of an overseer role over black mineworkers (a situation the miners describe clearly in their affidavits to the court). This supervisory role was limited to white mineworkers and enforced through through the restriction of blasting certificates to whites only. As a result, white mineworkers’ exposure to silica dust was progressively reduced over time, as they became supervisors and spent less and less time in the really dusty jobs. Although silicosis among white mineworkers was never eliminated, the system ensured that they would be diagnosed early, and retired comfortably on good pensions supplemented by good compensation payments for their disease. Their underground working conditions, and their living conditions ensured that their silicosis only rarely progressed to TB.
The occupational health system for black mineworkers, on the other hand, was effectively under the control of the mining companies, and rare attempts to interfere with it, however muted, from the state compensation authorities were swiftly brushed aside. Right from the beginning of the “speed up”, the few reports from an even fewer number of concerned medical experts were ignored by the new colonial state and the mining companies.
The political power of the gold mining industry in the colonial state ensured that the mines’ argument that black mineworkers were migrants on short intermittent contracts and therefore less exposed to silica dust and the risk of silicosis and TB than white miners held sway in the corridors of colonial and apartheid power. There was never any scientific evidence for this argument, because the mines did not conduct the necessary research, the colonial and then apartheid state would not fund it, the racist white mineworkers’ union only took collective action to defend its own narrow race interests, and those scientists who saw the need for such research were employed either within the hostile state, or by the mining houses themselves.
The gold companies did not have sufficient confidence in their hypothesis to attempt to prove it, and since no-one was forcing them to do so, they let sleeping dogs die.
In the current class action certification silicosis case, one advocate for Anglo American suggested that the Ernest Oppenheimer hospital is, and has been since its inception, internationally recognised as a leader in its field. But where is the evidence for this? The only evidence we have of the results of the gold mines’ health and safety management system is the hundreds of thousands of former mineworkers sick with lung disease all over Southern Africa.
Indeed, the gold mines themselves were unable in court to gainsay the evidence from disease prevalence studies conducted after the advent of democracy in 1994 cited by the mineworkers’ lawyers, including one (finally!) financed by Anglo-American. These studies that found disease prevalences of around 20 to 30% among living former gold miners. The mining companies’ response has been that this disaster is not of their making, that it has always been the state’s responsibility to look after black mineworkers after they leave the mine, and that the state has failed to do so.
This has also been the mines’ argument when faced with the fact that huge numbers of mineworkers now live in shacks. In the case of Lonmin, this argument was sent packing in the judicial commission of inquiry into the Marikana massacre, which, among other things, recommended that the Department of Minerals and Energy investigate the extent to which Lonmin had reneged on its mining licence obligations to provide decent housing for its workers.
Unfortunately, the terms of licences to gold mining companies do not include an obligation to provide a modern, comprehensive occupational health service to all workers at risk of silicosis and TB, using the benchmark of the white miners’ historical privilege in that regard. Assuming competent enforcement, that may be the only way to ensure that the gold mining companies will put their money where their mouth is in the 21st century.
In the Truth and Reconciliation Commission’s final report on business and apartheid, Anglo American made a valiant attempt to distance itself from the apartheid state, insisting that it had fought apartheid measures such as job reservation, and refused to apologise for its exploitation of black mineworkers under the cover of apartheid rules. It issued only one apology at the TRC relevant to this case: when the apartheid government eased the Group Areas Act slightly, allowing the mines to house up to 3% of black mineworkers in family housing, Anglo American only managed to get 1% into family housing. By the time of the TRC report, the devastating epidemic of silicosis and TB among former mineworkers was already known, and the very revealing findings of the 1995 Leon Commission of Inquiry into Safety and Health in mines (the precursor to the new regulatory regime under the Mines Safety and Health Act 1996) were in the public domain. Anglo American did not apologise for that.
At any rate, the argument of colonial and apartheid state failure no longer holds to the same extent in the light of the Department of Health’s recent initiatives to extend better occupational health services to former mineworkers using the very large quantum of largely unspent funds from the compensation fund set up in terms of the Occupational Diseases in Mines and Works Act. Yet still the contribution of the mining industry to this initiative is paltry in monetary terms.
There is one puzzle that persists in the debate. The incidence of silicosis in black mineworkers has risen steadily and significantly since the 1980s, as the results of statutory post-mortem examinations of lungs and hearts of mineworkers who die in service from any cause, drawn on by the mineworkers’ attorneys, reveal. The argument that this is due to the fact that black mineworkers’ contracts - and therefore their exposure to silica dust - were lengthened in the 1980s, is being investigated currently by epidemiologists such as Professor Rodney Ehrlich of UCT, not without staggering difficulties.
The historian Jock McCulloch, drawing on extensive documentary research in State archives, contends that black mineworkers have always had a much higher silicosis and TB incidence rates than white mineworkers, and that the mine occupational health “services” and research, and the apartheid state’s capture or collusion machinations, were effectively a giant conspiracy to obscure this fact. He suggests that the difference was due to the much more dangerous levels of exposure to silica dust that black mineworkers had to endure because of the difference between their role in production, at the sharp end, compared to that of their white “baas”, whose supervisory role meant that he was removed from it.
In her ground-breaking book, published in 1983 - after her assassination by apartheid security forces - , entitled “Black Gold: the Mozambiquan miner, proletarian and peasant”, Ruth First constructed comprehensive work histories of Mozambican gold miners who had returned to their land in 1975 on the victory of Frelimo against the colonial regime. The Frelimo government commissioned First to investigate what it should do to accommodate the returning mineworkers productively on their land. First’s research showed that from at least the 1940s, the frequency of contracts of these workers had markedly increased, until by the early 1960s, most of them were effectively full-time permanent workers on the mines, with only short visits to their families at Christmas.
If her findings are generally true across the whole Southern African region, the historic argument put forward by the mining companies of “porous service” by their black workers falls away. And if that is true, then the increasing incidence in silicosis observed by autopsy since the 1980s should be interpreted as showing a temporary fall in incidence around the late 1970s and 1980s from a historical high, and not rather than a rise from a historically low incidence until a trend towards a historically high incidence began in the 1980s.
We do know that from 1974 onwards, when Hastings Banda withdrew Malawian mineworkers from the SA gold mines, and the Frelimo victory led to an exodus of Mozambican mineworkers until they returned in large numbers in the 1990s, there was a period of twenty years in which the mining companies drew much more extensively on the South African labour sending areas, especially the Eastern Cape, and by the mid-1980s most of these mineworkers were effectively working on permanent full time contracts. This substitution of South African workers for more experienced, and therefore more dust-exposed foreign workers, which reached its peak and zenith in the 1990s, perhaps could have a bearing on the significant increase in silicosis incidence revealed over the past 30 years in autopsy records.
One other reference, purely anecdotal, has a bearing on this puzzle. In a tiny footnote in his book Labour in the South African Gold Mines 1911-69 Francis Wilson quotes a personal communication by a social researcher doing field work in one of the areas from which men went to the gold mines. “All the men in the village had died of silicosis,” he writes. If that is true, and even partially generalisable, then once again the mines’ argument about reduced exposure of black mineworkers to silica dust falls away.
The compensation system for mineworkers was set up early in the 20th century precisely because it was understood that white mineworkers would not have access to expensive common law remedies for the massive burden of disease. State compensation was built on two principles; no fault needed to be established, and no causal relationship between silica dust exposure with or without TB needed to be proved for compensation – it was deemed automatically compensable occupational disease. Now the wheel has come full circle. Because of the failure of the mining companies to build a comprehensive occupational health system for black mineworkers, we are back to a class action under common law as the only means of redress.
Views expressed are not necessarily GroundUp’s.