Draft law would stop mineworkers with lung disease suing mine owners for damages

Mineworkers who develop silicosis, tuberculosis or other occupational lung diseases would lose the right to sue mine owners for damages under a draft law released for public comment this month.

The Compensation for Occupational Diseases in Controlled Mines and Controlled Works Bill, drawn up by Health Minister Aaron Motsoaledi's department, would replace the Occupational Diseases in Mines and Works Act of 1973. Cabinet approved its publication at its meeting on 23 September, and the draft was released in the first week of November. The public has three months to comment, Business Day reported on Tuesday.

What section 35 says

Section 35 of the draft bars workers, former workers and their dependants from taking civil action against the owners of controlled mines or controlled works to claim damages for an occupational disease. Controlled works include smelters, refineries and beneficiation plants.

In exchange, the bill sets up a "no fault" scheme. Cabinet said in September that it would strengthen how current and former mineworkers with compensable diseases are identified, tracked, medically assessed and paid, and improve access to benefits for them and their dependants.

A new state-owned compensation authority would oversee medical examinations, decide who qualifies for a lump-sum payment and manage the compensation fund, including payments to the beneficiaries of miners who die before their claims are settled. A 13-member board appointed by the health minister would oversee it. The draft also sets penalties for mines and works that expose workers to hazards.

Why the clause matters

The 1973 Act did not stop sick miners going to court. In 2011 the Constitutional Court ruled in Mankayi v AngloGold Ashanti that mineworkers covered by it could still sue their employers for damages. That ruling opened the way for the silicosis class action against gold mining companies, which ended in a settlement of about R5bn.

Richard Spoor, the lawyer who led that case and is now bringing a similar claim against coal mining companies on behalf of miners and affected communities, told Business Day the bill shifts liability onto workers, strips away their rights and does not tie in with existing mine surveillance and occupational health laws.

Dr Barry Kistnasamy, the former compensation commissioner for occupational diseases and one of the bill's main drafters, defended it. He told the paper that a no-fault system is in line with good social protection practice and should prevent future class actions. Kistnasamy retired at the end of October. He was appointed in 2012 to rescue the Mines and Works Compensation Fund, which had been receiving disclaimers from the auditor-general; it has had unqualified audit opinions, with findings, for the past three years.

Cosatu parliamentary co-ordinator Matthew Parks said the clause should be weighed as part of the social compact between business and labour, in return for better health and safety measures and better benefits. The federation will examine the bill at Nedlac.

A similar bar already exists in the Compensation for Occupational Injuries and Diseases Act, which the Department of Employment and Labour oversees.

Payouts have lost value

The 1973 Act was modelled on the Miners' Phthisis Act of 1912 and set different benefits by race until the 1990s.

A study published in February in the American Journal of Industrial Medicine, co-written by Kistnasamy, found that the lump sum for first-degree lung disease paid under the Act had lost much of its worth. The 2024 award of R91,868 was 42% lower in real terms than the 1995 award, which would be worth R157,360 in 2024 prices. In 1995 the first-degree award equalled about 150% of average annual gold-mine earnings; by 2024 it was about 25%. The authors found a 71% increase would be needed to restore its 1995 value.

Two things are not yet clear from the published reporting on the draft: how large lump sums under the new scheme would be, and whether section 35 would affect claims already lodged or settled.

What the exchange is, on the page

Section 35 would stop workers, former workers and their dependants from suing the owners of controlled mines or controlled works for damages for an occupational disease. Controlled works, in the draft, include smelters, refineries and beneficiation plants. The diseases named in the reporting are silicosis, tuberculosis and other occupational lung diseases. In place of the court claim, the bill describes a no-fault scheme. Cabinet said in September that the scheme would strengthen how current and former mineworkers with compensable diseases are identified, tracked, medically assessed and paid, and would improve access to benefits for them and their dependants.

A new state-owned compensation authority would oversee medical examinations, decide who qualifies for a lump-sum payment, and manage the fund, including payments to the beneficiaries of miners who die before a claim is settled. A 13-member board appointed by the health minister would oversee it. The draft also sets penalties for mines and works that expose workers to hazards. The 1973 Act did not contain this bar. In 2011 the Constitutional Court ruled in Mankayi v AngloGold Ashanti that mineworkers covered by that Act could still sue. That ruling opened the silicosis class action, which ended in a settlement of about R5 billion.

Richard Spoor, who led that case and is now bringing a similar claim against coal mining companies, told Business Day the bill shifts liability onto workers and does not tie in with existing mine surveillance and occupational health laws. Dr Barry Kistnasamy, a main drafter and the former compensation commissioner, told the paper a no-fault system matches good social protection practice and should prevent future class actions. He retired at the end of October. He was appointed in 2012 to rescue the Mines and Works Compensation Fund after auditor-general disclaimers. The fund has had unqualified audit opinions, with findings, for the past three years. Cosatu's Matthew Parks said the clause should be read as part of a social compact, in return for better health and safety and better benefits. The federation will look at the bill at Nedlac. A similar bar already sits in the Compensation for Occupational Injuries and Diseases Act, under the Department of Employment and Labour.

The rand figure that has already shrunk

The 1973 Act was modelled on the Miners' Phthisis Act of 1912 and set different benefits by race until the 1990s. A study published in February in the American Journal of Industrial Medicine, co-written by Kistnasamy, found the lump sum for first-degree lung disease had lost much of its worth. The 2024 award of R91,868 was 42% lower in real terms than the 1995 award, which would be worth R157,360 in 2024 prices. In 1995 that award equalled about 150% of average annual gold-mine earnings. By 2024 it was about 25%. The authors found a 71% increase would be needed to restore the 1995 value.

The draft was released in the first week of November, after Cabinet approved publication on 23 September. Business Day reported that the public has three months to comment. The reporting does not yet say how large the new lump sums would be, or whether section 35 would touch claims already lodged or already settled. This is reporting on a draft bill. It is not legal advice on an individual claim.