This blog is Part I of a multi-part series written by Tladi Marumo, 2019 Corporate Accountability Lab Innovation Fellow, exploring the use of class action suits in South Africa to adjudicate human rights abuse in the mining sector.
“Apart from occasional deaths on the train...or on the ship, a number of natives have of late reached our main camps only to die there.”
“I beg to advise you that some of this week’s sick rejects arrived in a very weak state, one native No. 8231 dying half an hour after arrival. Our Medical Officer there reports that some of the tubercular cases are in a very advanced stage.”
-extracts of letters from the district manager of the Witwatersrand Native Labour Association (WNLA) to the general manager of the Chamber of Mines and WNLA director, respectively. The letters emphasize the increasing number of mineworkers returning from the gold mines to the labour sending areas with advanced pulmonary tuberculosis (TB) (1924).
In 2011, South Africa’s Constitutional Court in an unprecedented step classified the gold mining industry’s historical and ongoing systemic exposure of mineworkers to occupational lung disease as acts of public and private violence. In this first blog, I provide the historical and current context in which to understand this classification and how it “implicates the right to freedom and security of a person.”
Gold Mining and the Migrant Labor System
Gold mining began in South Africa in 1886. It was powered by a racially discriminatory cheap migrant labor system, with mineworkers recruited from the rural areas of South Africa, Lesotho, Swaziland, Zimbabwe, Mozambique, Botswana, Zambia, Tanzania and Malawi. The large transnational gold mining companies united by the Chamber of Mines, jointly influenced foreign exchange and contributed significantly to state revenue. The Department of Mines legally and politically facilitated the profitability of the industry. In 1902 the gold mines employed a total of 37,000 mineworkers; by 1910 there were 120,000 black and 10,000 white mineworkers; in 1929 there were 193,221 black and 21,949 white mineworkers. By 1930, the country was the leading producer, of over 60% of the world’s gold. With an increasing global demand for gold, by the 1970s the combined workforce, still disproportionately black, had grown to over half a million. This growth continued well into the 1980s. As early as 1902, gold mineworkers were facing a major health crisis in which occupational lung diseases, silicosis and TB limited mineworkers’ working lives from four to seven years. Exposure was due to mining of the host ore containing 60-80% silica. Although some of the dominant mining companies had prior knowledge of silicosis and TB, this knowledge however, did not translate into the creation of safe workplaces particularly for black mineworkers.
Response to the Silicosis and TB Health Crisis
Responding to the health crisis, the gold mining industry and government initiated several interventions starting in 1902, including more than 20 commissions and select committees of inquiry, scientific and medical research, and legislative enactments. These interventions were aimed at identifying the causes of silicosis and TB, measures to minimize exposure, medical research and examinations, and resolving the disagreement between government and the industry over responsibility for compensation.
The commissions and select committees of inquiry, some finding in favor of and others against the gold mining industry, noted the separate and unequal treatment of white and black mineworkers. White silicotic mineworkers and those with TB were treated at a sanatorium, given surface jobs, pensions and retraining. In contrast, few black mineworkers were treated at the mines by mine medical officers, and the many with silicosis and TB who became unfit to work were sent back to their originating rural labor-sending areas. Their return caused their communities to be infected with TB. Leaving the mines without medical certification, and returning to rural areas with very minimal to mostly nonexistent medical facilities, many died without receiving compensation. The unequal compensation system is evident from the fact that despite an average of ten black mineworkers for every one white mineworker, the total compensation paid to white mineworkers was thirty times greater. Remedial recommendations included: the introduction of dust control and elimination measures; initial, periodic and exit medical examinations be conducted; and the creation of a uniform system of compensation.
Industry and government took some discretionary steps. Conscious of cost, the industry invested in some measures to minimize exposure. Legislation classified white mineworkers as “miners” and black mineworkers as “native labourers” to linguistically conceal the unequal racialized treatment. For decades, South Africa’s official medical data was misrepresented in international annual reports as being the best. The international community had little practical understanding of the real working conditions on the mines, or of how the official data was collected. Industry and government also constantly disagreed over who should pay for compensation, how it should be calculated and how much should be paid.
Over the 133-year history, the industry has been the primary cause of hundreds of thousands of current and former black mineworkers suffering and dying from silicosis and TB, with very minimal to no compensation. At the end of Apartheid, in 1994 South Africa’s new democratic government conducted a major commission of inquiry and studies into the state of the industry. It found that dust levels were hazardous and had been so for more than 50 years. Legislative changes were accelerated to redress the past legacy and align industry and government in a representative, collaborative and cooperative manner. Despite this, the country continues to have a separate compensation system, with one providing a one-off lump sum payment to mineworkers or their dependents, and the other providing pensions to workers or dependents in non-mining industries.
Legacy and Challenges
Studies conducted during 1997-2011 rated silicosis in former and current mineworkers between 22 and 30%, more than 100 times higher than the official rate between 1930-1990. Research estimated that up 60% of mineworkers would eventually develop silicosis. The previous decades’ underreporting revealed a backlog of compensation claims amounting to approximately $100 billion. Research conducted between 2000-2003, found that by that time, approximately 280,0000 mineworkers were entitled to compensation. By June 2011, the figures had risen to 300,000. The Department of Labour found that of the mineworkers living in rural labor sending areas, approximately one in three have TB, and approximately one in four has silicosis, and that almost none have received adequate or any compensation. The Department of Health, running an under-resourced and struggling national public health system, bears the cost of the legacy and the persisting migrant labor system, despite legislative reform. These long-term effects have in recent decades been exacerbated by the significant economic decline of the gold mining industry.
Economic Decline and Ramifications
The South African mining industry, described once as a mighty and economy-dominating force, is now but a shadow of its former self. Since the late 1990s, the industry has undergone financial restructuring. By 2007 South Africa dropped to eighth largest gold producer in the world. Production decreased by 45% and the number of employees is down by a third. In 2015, Statistics South Africa estimated that gold resources will be depleted by 2048. In 2018 the Minerals Council of South Africa reported that 75% of gold mines were unprofitable. The current financial position of several gold mining companies is marginal and their continued sustainability is subject to variables that are beyond management’s control. These variables include the gold price, the Rand/Dollar exchange rate, and political risks. The ongoing historical legacy of migrant labor is the main factor which has caused instability. As a result, some of the gold mining companies are declaring bankruptcy, while others are withdrawing from South Africa’s gold mining industry. In the wake of their withdrawal or altogether disappearance, these companies leave behind a long trail of carnage. This raises remedial implications for former and current mineworkers, their dependents, and those mineworkers with latent silicosis or TB that has yet to manifest within the coming years.