Things Fall Apart—Independent Research, Asbestos Litigation and the Gold Miners’ Class Action: 1983–2019

Abstract

Until the early 1990s, those who were critical of the South African gold mines found little support. By 1920, the Chamber had fashioned a medical orthodoxy which held that tuberculosis was brought to the mines by recruits, a position from which the industry never wavered. The election of the ANC government in 1994 saw a dramatic shift in the legal possibilities for the victims of occupational injury. The Leon Commission, the first inquiry into occupational health held under majority rule, rejected the Chamber’s orthodoxy. Its final report found that silica dust levels on the gold mines were hazardous, and that they had probably been so for more than fifty years. The dismantling of apartheid also saw the emergence of a loose collective of researchers who worked on occupational disease but had no affiliation with the mining industry. By 2000, their research showed that there was a high incidence of uncompensated silicosis and tuberculosis among former miners, and that even a negligible degree of silicosis was associated with an increased risk of tuberculosis infection. Employing legal precedents forged in successful occupational health litigation by asbestos miners, several legal firms embarked on an unprecedented class action against the gold mining companies. The chapter concludes by outlining the innovations brought about by its recent settlement.

Under apartheid, the focus of mine legislation was to improve the lot of white miners and their families. When the white MWU became concerned that its members had a heightened risk of bronchitis and heart disease, in 1949 Dr Peter Allan was appointed to chair a commission to investigate. The Gold Producers Committee, which submitted written and verbal evidence, was represented by several senior officers including Dr A.J. Orenstein. According to the GPC, the mines had never been safer and the improvements in air quality over the previous ten years were well in advance of those required under the Mines Acts. The Government Mining Engineer agreed. The routine inspections by his Department were, he claimed, probably the most rigorous in the world.¹

The Commissions of Enquiry appointed during the 1960s and 1970s were notable for their support of the industry and its policies. The testimony of the chief group medical officer of Goldfields before a Commission in 1964 is representative of the tone. Dr Pieter Smit complained that while the government was legally responsible for tuberculosis, it was the mining industry which was treating miners. The industry provided far better care and facilities than were available elsewhere in South Africa: ‘In this country, Mr Chairman, I must say the liberality of diagnosis and compensation far exceed anything I have seen anywhere else on the continent and in the United Kingdom’. The Chairman agreed.²

Until the early 1990s, those who were critical of the mines found little support. The Commission of Enquiry on Occupational Health of 1976 reported: ‘Although much could probably still be done about industrial health in the mining industry, there is little in the gold mining industry about which the Republic need be ashamed’. The history of industrial health of the gold mines ‘speaks of a sensitivity and a willingness on the part of the authorities as well as of the industry itself to accord humanitarian considerations their rightful place at all times’. The exemplary conditions on the mines were ‘due to the fact that the worker’s safety and health were their constant concern, and created an undeniable climate of industrial peace’. As a result, the Commission noted, the incidence of silicosis and tuberculosis had fallen sharply.³

Official approval went hand in hand with hardening of the relevant science. By 1920, the Chamber had fashioned a medical orthodoxy which held that tuberculosis was brought to the mines by recruits, a position from which the industry never wavered. A commentary from 1944 by the Gold Producers Committee, for example, explained that the mines were not the source of tuberculosis. On the contrary, tuberculosis was endemic in the Native Territories. With a change of environment and occupation, latent tuberculosis became active. At the same time, however, owing to the good rations and living conditions, the mines had probably saved many thousands of men who would otherwise have contracted tuberculosis had they remained in their rural homes.⁴

The Chamber’s orthodoxy was still in vogue in 1989. In that year R.L. Cowie, a senior medical officer at the Anglo American hospital at Welkom, published an essay explaining why, despite the new generation chemotherapy, the rate of tuberculosis in black miners remained high. From 1912, he noted, the mines reduced dust levels and silicosis was transformed into a chronic disease. The tuberculosis rate in white miners was falling while the disease remained prevalent in blacks. Cowie admitted that black miners had far higher exposures to dust than did whites and that they remained at risk of accelerated silicosis and tuberculosis. That period ended in the 1950s, with the development of isoniazid. However, treatment was tedious and prolonged. A miner with silicosis could survive tuberculosis, but the outcome was poorer for black miners because treatment took eighteen months and was rarely completed. The introduction of short-course therapy on the Free State mines in 1977 was an important advance: ‘In many respects the treatment of black gold miners with pulmonary tuberculosis is more efficient and more structured than that for white miners’.⁵

In what Cowie termed an anomaly, however, ‘the apparently adequate management’ of black miners had no influence on the prevalence of disease, which remained at around 500 cases per 100,000 person years. According to Cowie, the anomaly was due to the large infective pool in the labour-sending population. When visiting home, some miners were exposed to infection and when they returned to the mines, they became ill. That was why surveillance and treatment on the mines could not eradicate the disease. Cowie concluded that the only solution was to abolish the migrant labour system, and thereby shield miners from infection.⁶ Like those who preceded him, Cowie made little mention of dust exposures, relying instead on the idea that racial susceptibility played a role. He also provided no epidemiological or other evidence to support his claims about the path of transmission. In contrast, a recent study using DNA finger printing shows that most infection occurs on the mines and is spread by persistently infectious individuals who have previously failed treatment. The longer a worker remains in the mines, the more likely he is to be infected.⁷

Silicosis and the Orthodoxy About Intermittent Employment

Major discrepancies in the silicosis rates between white and black miners were the other key element of the companies’ narrative about mine safety. As a senior SAIMR researcher, Dr Mavrogordato, put it at the 1930 Silicosis Conference: ‘Observation had shown that the smaller incidence of silicosis among natives, as compared with Europeans, was due to the intermittent employment; natives who were employed continuously developed silicosis more rapidly than Europeans.’⁸ That orthodoxy was repeated by the Chamber whenever the costs of the migrant labour system were questioned. In 1943 the Witwatersrand Mine Native Wages (Lansdown) Commission, which was in other respects so critical of the industry, found that the return of men to the Reserves after a period on the mines tended to lower the incidence of miners’ phthisis.⁹ In 1951 the Allan Commission found that the migrant labour system probably accounted for the rarity of silicosis in black miners.¹⁰

The Chamber’s claims that the low silicosis rates in black miners provided evidence of the benefits of oscillating migration remained persuasive into the twenty-first century. Writing in 2007, May Hermanus remarked that for most of the twentieth century, miners worked for limited periods before returning to the rural areas. From the mid-1980s, however, many remained in employment for more than two decades, thereby enduring prolonged exposure to dust and developing occupational diseases in greater numbers.¹¹ Rodney Ehrlich agreed: ‘It is highly plausible, as argued first by Jean Leger and later by others, that there has indeed been a significant rise in the incidence of silicosis in the latter part of the century owing to what has been called labour stabilization’.¹² Those comments suggest that the Chamber’s version of the industry’s history is accurate, and that both the current high disease rates and labour stabilisation are novel. What actually happened is more complex.

The industry restructuring in the 1980s did indeed result in longer contracts and greater frequency of uninterrupted service. In 1976, the proportion of black miners who had worked for more than ten years in total was around 14 per cent; by 1990 it had risen to 37 per cent.¹³ However, this did not constitute a radical break with past employment practices. As noted in previous chapters, most men kept returning to the mines until their health broke down. They now tended to survive longer after they began mining. New drugs for the treatment of tuberculosis helped, as did delays in the onset—and diagnosis—of silicosis. At the 1930 ILO conference in Johannesburg, Dr Mavrogordato from the South African Institute of Medical Research explained that the onset of silicosis in white miners now took thirteen years instead of eight to nine years. ‘If the time taken to produce a clinical silicosis could be pushed up to twenty years’, he mused, ‘silicosis could be considered as eliminated on the Rand from the social point of view’.¹⁴

At the same time, the mines have always preferred to employ experienced men. From the beginning of the twentieth century, South Africans were recruited for a term of six months to perform 180 shifts, which in practice usually took seven and a half months. East Coasters and Tropicals were recruited for twelve months, but their average stay was about seventeen. As early as 1906, Drs L.G. Irvine and D. Macaulay wrote that it was becoming common for East Coasters to remain for eighteen months continuously on the mines.¹⁵ Of the 36,401 East Coasters recruited in that year, almost 60 per cent were returning men. By 1912 that had risen to over 75 per cent. In his Tuberculosis Commission Report from 1914, Dr Gregory noted that the risk of both silicosis and tuberculosis increased with the duration of employment and hence was most common among East Coasters. He recommended that steps be taken to limit the total duration of employment.¹⁶

The Miners’ Phthisis Medical Bureau’s Annual Report for 1924 noted that retaining the services of experienced workers beyond the usual contract of six to nine months meant a considerable number were permanent.¹⁷ By 1930, of the 400,000 men who went through the system each year, around 80 per cent were re-engagements.¹⁸ In 1937, William Gemmill told the Native Labour Committee in Johannesburg that the average age of black miners was 30 to 32 years, as the mines preferred experienced men.¹⁹ In 1940, more than 80 per cent of men arriving in the WNLA compound had been on the mines before.²⁰ Mr Lovett, one of the Chamber’s senior officials, told a high-level conference on pensions in December 1946 that only around 12 per cent of the workforce entering the mines each year were novices.²¹ In its 1947 monograph on the health benefits of migrant labour, the Chamber noted that on average a worker would serve seven or eight contracts, with almost 80 per cent of men returning each year.²² Writing in 1972, Francis Wilson suggested that up to the age of 40, most black miners served five to seven contracts.²³ As Jack Simons noted in 1960, claims that oscillating migration reduced the risk of silicosis was a ‘dangerous illusion’. He was sure that the ignorance of the actual incidence of pneumoconiosis and tuberculosis among African miners was due to the combined failure of industry and the state to carry out basic research.²⁴

The Leon Commission in 1994 was the first post-apartheid inquiry into occupational health, and the first to take detailed evidence from black miners. The Chamber’s initial submission restates the companies’ virtues. It runs to twenty-one chapters and covers almost every aspect of mine safety. There are at most three references to dust, and there is no mention of silicosis.²⁵ The Commission’s final report rejected at once the Chamber’s submission, its version of the industry’s history and the science on which that account was founded. Leon found that silica dust levels on the gold mines were hazardous, and that they had probably been so for more than fifty years. As more men remained in almost continuous employment, it suggested, silicosis and tuberculosis were more likely to be detected.²⁶ That proved correct: over the period from 1975 to 2009, the reported proportion of white miners with silicosis increased from 18 per cent to 22 per cent, while that of black miners rose tenfold from 3 per cent to 32 per cent. Part of that rise was due to an ageing workforce and increasing periods of service. Part was due to the improved medical surveillance and access to compensation, which came with majority rule.²⁷

The Mines Health and Safety Act No. 29 of 1996, passed in response to Leon’s recommendations, ushered in a new era of non-racial legislation. In a major departure from the ODMWA, it promoted employer, employee and government participation in the workplace, based on principles of co-operation and shared responsibilities, initiatives that were unthinkable under apartheid. In addition, new codes of conduct for medical surveillance and guidelines for dust measurement were developed. Unfortunately, the complex political and economic situation at the time blunted the impact of the legislation.

J.C.A. Davies and Independent Research

Alongside legislative change, majority rule saw the formation of progressive NGOs in Cape Town and Johannesburg, a reinvigoration of union activity and the emergence of a loose collective of researchers who worked on occupational disease but had no affiliation with the mining industry. That collective, based at the NCOH and Wits University in Johannesburg and the University of Cape Town, included J.C.A. Davies, Jonny Myers, Marianne Felix, Anna Trapido, Jill Murray, Neil White, Danuta Kielkowski and Rodney Ehrlich. Their work represented a break with the past in two important respects: it involved follow-up studies of occupational and environmental risk in mining communities; and the research was conducted with independent institutional backing. In the process, both the agenda and often the models of data collection changed. The previous generation of dissidents, such as Macvicar, Cluver and Allan, were critical of the compensation system but had no collective voice and limited political influence. The predecessor of the NCOH, established in 1956 for the study of occupational disease and occupational hygiene and called the Pneumoconiosis Research Unit, was the institution where new research could be best carried out. There was indeed an aborted start with J.C. Wagner’s work on asbestos miners in the mid-1950s. However, his discovery of the link between asbestos and mesothelioma provoked such opposition from the mining industry that research on asbestos at the PRU was brought to an abrupt halt, and Wagner himself was forced to leave South Africa.²⁸ Asbestos mining continued, as did the export and use of the fibre. The appointment of Professor J.C.A. Davies as Director of the NCOH in 1983 was at once a result and a catalyst of a change in direction.

J.C.A. Davies was born in Scotland in 1931. His father, a mining engineer, migrated to South Africa in the following year. The family lived in Johannesburg and Davies attended St. Johns College. Having matriculated in 1949, he trained at Guy's Hospital in London.²⁹ It was a period of social reconstruction and the National Health Service had just been created. After qualifying, Davies worked at the New Cross Hospital in West Midlands with lung cancer patients and later with ex-servicemen who had tuberculosis. The new chemotherapy had revolutionised treatment, and Davies was seeing tuberculosis patients at a time when the balance in fatalities was shifting to lung cancer. In 1959, Davies with his wife Deidre and his daughter returned to South Africa. By this time, apartheid had been established and Davies found the political climate intolerable. The family soon moved to Southern Rhodesia (Zimbabwe). Davies initially worked as a rural doctor, and then three years at the small farming settlement of Shangani, where he established a successful tuberculosis control programme. In February 1963, he was recruited to the national tuberculosis service. Davies was responsible for the Midlands and Victoria provinces, where the tuberculosis rates were relatively low in a population of around half a million. Davies started a tuberculosis register, an initiative pioneered in Denmark. With the aid of a large sanatorium at Driefontein, the tuberculosis programme he initiated reduced the death rate by over half. The systematic approach to data collection had another important outcome: it identified an excess of men who had a history of mining. In male wards, that excess ranged from 22 per cent to 75 per cent.³⁰ In contrast, the rates among the general population were low. The results lent support to D.H. Shennan’s work on the Manicaland province in eastern Zimbabwe. The key to controlling tuberculosis in the general population, Shennan argued, was to control the disease on the mines.³¹

In 1965, Davies completed a Diploma of Public Health at the London School of Hygiene. It was a difficult time in Zimbabwe: in protest against the illegal Smith regime, the WHO had pulled out of the country. In 1974, the Chief Medical Officer at Harare, T.J. Stamps, later a cabinet minister in the Mugabe government, resigned and Davies replaced him. When Zimbabwe gained independence in 1983, there were no jobs in the public health sector for whites. Davies was approached by the retiring Director of the Medical Bureau for Occupational Diseases (MBOD) in Johannesburg, Frank Wiles, to apply, and was the successful applicant for the position. The NCOH was a multi-disciplinary organisation with good staff, but it was not producing much needed research.

The South African Medical Research Council took over the Pneumoconiosis Research Unit in 1970 and renamed it the National Research Institute for Occupational Diseases (NRIOD). In 1979, the Institute was expanded, renamed National Centre for Occupational Health (NCOH) and transferred to the Department of Health and Population Development. Researchers in the organisation faced severe restrictions on their work. All papers had to pass through a system of censorship; when a paper was to be given overseas, permission had to be obtained from the Department of Foreign Affairs. The most public incident involved the withdrawal of a paper on asbestos disease caused by environmental exposure, which Les Irwig and Hannes Botha were scheduled to present to an international conference in New York in June 1978.³² In addition, the organisation was hamstrung by a simmering political dispute about its role. The director, Ian Webster, was a worker advocate who wanted to focus on researching workplace issues. In contrast, the president of the Medical Research Council (MRC), A.J. Brink, wanted the Institute to concentrate on high-technology medicine.

When, in 1983, Davies took up his appointment as Director of NCOH, he had been out of South Africa for thirty-five years and, as he put it, ‘apartheid made him appear more radical than he had been in Zimbabwe’. Soon, he began playing an important role in shielding junior researchers from departmental interference. In his first annual report as Director, he announced that the Institute would address the major industrial hazards of silicosis, asbestos disease and hearing loss. Davies noted that hospital out-patient departments and private medical practitioners were not familiar with the compensation legislation and with lodging claims. Partly as a result, there was gross under reporting of pulmonary tuberculosis among miners in labour-sending communities, with most cases being shipped off to the Bantustans. Even under those circumstances, the existing data was disturbing. Among the lungs of 1663 black gold miners examined during 1982, 6.9 per cent were shown to have active pulmonary tuberculosis. The incidence of tuberculosis among in-service gold miners in the same year was 800 per 100,000. This was 80 times that of the USA and Scandinavian rates.³³

Davies arrived at the NCOH with an important research question: What happened to miners after they left the mines? The prevailing orthodoxy at the NCOH was that black miners got tuberculosis while whites developed silicosis because of their continuous exposure. From his Southern Rhodesia experience, Davies knew that both groups contracted both diseases, although at different rates.³⁴ One of the first projects Davies sponsored was Shelley Arkles’ work on spinal injuries among migrant workers from Lesotho. It was a study of the hidden costs of mining of a kind which had not been attempted since the work of Peter Allan in 1922.³⁵ While not dealing with it directly, the results were relevant to miners suffering from occupational lung disease. Ninety per cent of Arkles’ sample of 64 repatriated miners had never been employed outside the mines. The situation of a disabled worker, Arkles noted, should not be compared to that of unemployed members of impoverished rural communities, but rather to the position such men occupied before their accident.³⁶ The majority of Arkles’ respondents were married and had the benefit of family support. Almost 70 per cent had five or more dependents and despite their injuries they felt responsible for the maintenance of their families.

Arkles found that former miners were severely disadvantaged in an over-supplied labour market. A small disability, such as a reduction in lung function, could result in a total loss of employment. Almost 70 per cent of Arkles’ study group were unemployed, a rate which appeared typical for disabled miners. ‘Patients who are disabled and unemployed become disabled and unemployable purely from the passage of time.’ Low educational levels had a negative impact on the miners’ understanding of their rights to compensation. Within three months of repatriation, most men had spent their lump sum payouts on food, household goods and school fees. A quarter of the respondents spent between 11 and 22 per cent of their pensions on transport each month to collect the payments. In the absence of unemployment benefits, redundancy payments and adequate compensation, rural households were responsible for the care of injured men.³⁷ Arkles concluded that the mining industry should provide vocational training and assistance programmes for workers with serious disabilities. Her recommendations were ignored.

Arkles’ project was followed by the work of Marianne Felix on the environmental impact of asbestos mining at Mafefe in the Limpopo province. Such a study had never been conducted, and Felix identified a serious environmental hazard in mining communities.³⁸ At about the same time, J-P. Leger published an important article which discussed, in considerable detail, the neglected epidemic of occupational disease among black miners, and the difficulties he encountered in reconciling the disparate and patchy available data sets.³⁹ In addition to sponsoring the work of Arkles and Felix, Professor Davies began his own research on asbestos and gold miners. In 1991 he visited several hospitals in the Eastern Transvaal, a region which supplied labour to the local asbestos mines and migrant workers to the gold mines. Large numbers of women worked as cobblers, hand processing the ore before it was fed into the mills. They had extreme exposure and high rates of asbestos disease, including mesothelioma. The hospital at Groothoek had good X-ray equipment, but Davies found the hospital staff were unaware of their obligations under the Act to report chest disease in miners. Nobody could recall the last case reported under the ODMWA. Neither were they submitting the organs of deceased miners for the purposes of compensation. Apparently, neither the state authorities nor the mining companies had noticed that over the preceding decades no organs had been submitted.⁴⁰ After leaving the industry, white miners and their families used the free benefit examinations diligently to access compensation. Black miners too had the legal right to free benefit medical examinations every two years, but in practice very few had access to the doctors at the MBOD (and autopsies on death) in Johannesburg.

Davies returned to the Eastern Transvaal in 1993 and began holding clinics for former miners. Initially, he examined 72 cases of lung disease, of which two-thirds were compensated. Soon, men and women began pouring into the clinic to register. Between November 1991 and June 1993, Davies submitted a total of 399 cases of former asbestos and gold miners for compensation. Of that group, 272 received awards for pneumoconiosis and/or tuberculosis. It was compelling evidence that the state-regulated system of medical surveillance and compensation was not working. Davies warned: ‘There is almost certainly a large unfunded liability in the rural areas of the subcontinent from which migrants have been recruited’.⁴¹ Davies reported on the results of his work in 1994, just prior to the final report from the Leon Commission on which he served, and almost ten years before litigation against the gold mining companies began.⁴²

The Leon Commission put criticism of the compensation system firmly in the public domain and inspired further pathbreaking research. One such project emerged from a chance conversation at a health conference in Maputo in 1994. Two doctors from Botswana were keen to conduct a follow-up study of migrant workers. They approached Neil White and his colleagues Jonny Myers and Rodney Ehrlich from the UCT. The resulting study at Thamaga in Botswana showed massive rates of uncompensated silicosis and tuberculosis among former miners. The study of just over 300 former miners was based on individual questionnaires, chest radiographs, spirometry and medical examinations. The mean age of men in the sample was 56 and their mean duration of mine service 15 years.⁴³ On average, the men had worked on four different mines. The vast majority laboured in gold mines; the remainder in platinum, asbestos, chrome and diamond mines. Almost half now classified themselves as unemployed rather than retired.

As Steen notes, South Africa’s mines have always been dangerous. An eighteen-year-old starting a mining career had a one-in-two to one-in-three chance of being permanently disabled by accident or disease. The group Steen and his colleagues studied conformed to this pattern: 190 of the 300 reported a period of hospitalisation or sick leave while on the mines. In all, a quarter of the Thamaga group had a history of tuberculosis, while 23 per cent had experienced a disabling occupational injury. The prevalence of pneumoconiosis was 26 to 31 per cent, and 7 per cent had progressive massive fibrosis, a crippling disease associated with reduced life expectancy. Many of the participants were entitled to compensation under South African law but had not received an award. If the 40 miners in the group with second-grade pneumoconiosis had received compensation, more than R1.2 million would have been remitted to Thamaga. Without awards, the social costs of disability were borne by families and the Botswana administration.⁴⁴

The survey pointed to a failure by employers and the South African authorities to prevent and identify pneumoconiosis. The findings also confirmed the existence of a latent period between exposure and radiological abnormalities, which is a well-documented feature of silica dust exposure. Although pneumoconiosis occurred in some miners with less than five years’ service, most commonly it was not detected until a decade after initial exposure. The study confirmed that, in the absence of follow-up examinations, pneumoconiosis was systematically under-reported, as the disease progressed after exposure has ended. Of the 80 Thamaga men who had previously received treatment for tuberculosis, 56 had been treated in Botswana and just 24 in South Africa. Only ten had received an award: tuberculosis could only be compensated under the Occupational Diseases in Mines and Works Act (ODMWA) if it occurred during service or within a year of leaving the mines. However, over half of the men with a history of the disease reported developing tuberculosis in their final year of mining, suggesting that they were repatriated after being diagnosed but were not compensated. Four new cases of pulmonary tuberculosis were also identified during the survey. Steen found that former miners in Botswana had a high prevalence of previously unrecognised pneumoconiosis due to inadequate radiographic surveillance or a failure by employers to act on X-ray results.

Steen’s study was soon followed by the work of Anna Trapido at Libode in the Eastern Cape, which identified a similar burden of disease.⁴⁵ Trapido’s work originated in conversations between Tony Davies and a Wits epidemiologist Brian Williams. Both wanted to know what happened to black miners after they left the industry. Williams recruited Anna Trapido as a doctoral student and helped her find a sample which would provide a solid basis for investigating whether ex-gold miners had an excess rate of tuberculosis. Trapido began her research in Lesotho. She then visited another recruiting area for the mines, Libode in the Eastern Cape. The local TEBA officer was sympathetic and gave her access to miners’ records. There were 11,000 recruits in the files and Trapido took a random sample of 500 men. Davies was staggered by the rates of uncompensated lung disease she uncovered.⁴⁶ After some delay, the work by Steen and Trapido was confirmed by a study of silicosis, tuberculosis and chronic airways disease in a group of 624 South African gold miners led by Gavin Churchyard and funded by AngloGold Corporation. The mean age of the subjects was 49 years, and mean period of employment duration 26 years. The study found silicosis in 24.6 per cent, past tuberculosis in 26 per cent, current tuberculosis in 6 per cent and airflow obstruction in 13 per cent of the men. In total, almost half of the miners had at least one of these respiratory conditions.⁴⁷

In response to new research showing a high incidence of uncompensated silicosis and tuberculosis in former miners, the Chamber commissioned what it termed ‘a proper study’ of the prevalence of silicosis among miners retrenched from the President Steyn mine at Welkom. The project used a sample of 520 miners aged over 37 years. Less than half had a normal chest X-ray, and almost one in five had evidence of silicosis. The prevalence of silicosis increased significantly with increased length of service.⁴⁸ In a parallel study of ex-miners from the same mine, Churchyard and his colleagues also found that HIV infection increased the incidence of tuberculosis fivefold, and silicosis increased the incidence of tuberculosis threefold. The presence of both HIV and silicosis increased the incidence of tuberculosis by fifteen times, in a so-called multiplicative interaction. The President Steyn sample suggested that even a negligible degree of silicosis was associated with an increased risk of tuberculosis.⁴⁹ The results, published several years after the initial data collection was completed, confirmed the reports from Thamaga and Libode, and came to feature prominently in the miners’ subsequent litigation.

Similar findings emerged in Lesotho. In 2005, Lugemba Budiaki completed the first cross-sectional study of current and former Basuto miners attending tuberculosis clinics at Maseru’s hospitals. The aim of the study of 421 adult male patients was to determine the proportion diagnosed with tuberculosis who were mineworkers, and to identify those who had been compensated. Six out of ten of the men completed their primary education, more than two-thirds were literate and just under 10 per cent had attended secondary school. Most had spent prolonged periods on the mines.⁵⁰ Of the participants, only 4 per cent were active miners. The unemployment rate among the cohort was very high, and this made access to compensation imperative for family survival. Close to 40 per cent of the 421 participants diagnosed with tuberculosis at Maseru clinics were former or current mineworkers. Of the group studied, 42 men had received compensation for tuberculosis, but 33 miners diagnosed in Maseru with compensable disease had not been compensated. Only 23 of the total had been diagnosed while on the mines before being repatriated to Lesotho for treatment. Almost 80 per cent of the cohort had been diagnosed in Lesotho. Just over half had been given an exit medical examination, and almost 70 per cent were diagnosed with tuberculosis more than a year after leaving the mines, making them ineligible for compensation.⁵¹ The men cited various reasons why they had not applied for compensation. Some said that they were not aware they had such a right, but the majority reported that as they were diagnosed long after leaving the mines, they could not make a claim.⁵²

Research by Thuso Tlhaole reiterated that most disabled mineworkers lived with the threat of poverty.⁵³ The amounts successful claimants received were not adequate to support a family. Retired miners used their compensation on essential household items such as food, electricity and fuel. They also relied heavily on relatives and friends for support. Budiaki recommended that the occupational health unit in the Ministry of Health in Lesotho be strengthened, and that miners be made aware of their rights to compensation prior to taking up employment. Improved data collection and research were needed to identify occupational groups at risk. Any mineworker suspected or diagnosed with tuberculosis should have a sputum test and an X-ray examination. Those diagnosed with tuberculosis should be educated about how to manage the disease. The results also suggested the need for urgent reform to the mines’ system of medical examinations, and for TEBA to be actively involved in the compensation process.

Budiaki’s study complemented the work of Anna Trapido and Jaine Roberts on the Eastern Cape. All three researchers documented the extensive hardship suffered by miners and their families, and the high rates of uncompensated disease. After more than two decades of majority rule in South Africa, Budiaki concluded, there was still a lack of information among migrant workers about the risks of mining and their rights to compensation. Where compensation claims were made, the processing time varied between three months and three years.⁵⁴ In addition, some mineworkers had injuries such as loss of limbs or fingers for which they had not received compensation.

The Weak Link: Litigation Against the Asbestos Industry

The work by researchers such as Davies, Felix, Steen and Trapido shattered the orthodoxy that miners were at little risk of contracting lung disease. However, their research had no immediate impact on work practices or state regulation. What did bring change was the election of the ANC government in 1994. The new political conditions saw a dramatic shift in the legal possibilities for the victims of occupational injury. That shift was first evident in the successful litigation by asbestos miners.

The British companies Cape Plc and Turner & Newall mined asbestos in South Africa for almost a century. When the mines began closing in the mid-1980s, they left behind large numbers of men and women in the Northern Cape and the Northern Province with occupational disease.⁵⁵ Extensive lobbying by community groups eventually led to a claim against Cape Plc. The case opened in a London court in February 1997. The plaintiffs, represented by the British lawyer Richard Meeran, sought to hold Cape liable for its failure to provide a duty of care for its employees. Over the next three years, the legal process was devoted to the question of jurisdiction. Cape wanted the case heard in South Africa where the injuries had taken place and where the plaintiffs lived. The defence argued for the UK, where Cape’s assets were held. On appeal, the Law Lords finally ruled in favour of the plaintiffs. The issue of a duty of care was then scheduled to be heard in London. While the Cape case was running, a second set of claims was lodged in South Africa against the corporate giant Gencor by the civil rights lawyer Richard Spoor on behalf of more than 4000 men and women who had worked for Gefco, a fully owned subsidiary of Gencor. It was the first time that such a claim had been brought in South Africa for injuries sustained in the mining industry.

The asbestos and gold mining stories share much common ground. They are connected by the careers of the leading medical researchers in the UK and the US, who from the 1930s worked on both silicosis and asbestosis. They are connected by US corporations such as Johns Manville and Union Carbide, which over decades faced litigation from employees suffering from those diseases. Within South Africa, the connections are more intimate. The Anglo American Corporation and its associate De Beers are vast enterprises. By 1957, they controlled 40 per cent of South Africa’s gold production, 80 per cent of the word’s diamonds and a sixth of its copper. They also produced most of South Africa’s coal. From the 1930s, Anglo American developed a maze of interlocking directorships, mutual agreements and restrictive trade practices. That complex structure, which is characteristic of the South African mining houses, makes identifying the ownership and control of subsidiaries difficult.⁵⁶

Cape Asbestos Plc was a British firm with its head office in London. Yet, from its foundation, it was linked with De Beers. It was also related to Anglo American. During the Second World War the Oppenheimer company, Central Mining & Investment Corp., became the major shareholder in Cape. Central Mining was one of four holding companies within the Oppenheimer group, the others being Anglo American, De Beers and Rand Selection. By 1949, Central held the majority of seats on the Cape board. In 1969, the Central holding in Cape was superseded by Charter Consolidated, a British mining company also controlled by Oppenheimer interests, which held 63 per cent of Cape’s shares.⁵⁷ In 1979, Cape’s mines were sold for £15.5 million to Barlow Rand, an Anglo American company. They were then sold on again to General Mining, yet another Oppenheimer enterprise. Charter’s controlling share in Cape gave Anglo American a commercial interest in the asbestos industry. It also gave Anglo American’s board reason to monitor the Cape litigation.

The links between the asbestos and silicosis crises may in part explain why, despite the public health costs, the Chamber, the Departments of Mines and Health, as well as successive national governments fought so hard during the 1970s and 1980s to save the asbestos mines from their own occupational health crisis.⁵⁸ Asbestos was an insignificant industry which at its peak in 1977 employed less than 40,000 men and women and accounted for only 3 per cent of the value of South Africa’s minerals production. It is possible that the Chamber feared that recognition of asbestos disease would lead directly to recognition of uncompensated disease in gold miners. In the event, this is exactly what happened.

In the first two decades of the twentieth century, health crises on the gold mines saw the state, industry and white labour achieve an accommodation which was maintained for almost a century. That fragile agreement was constantly renegotiated through a series of Acts and Commissions which often led to concessions for white miners and their families. The successful litigation against Cape Plc and Gencor destroyed that precarious balance. Importantly, it forged a pathway to class action, an unprecedented form of redress allowable under the post-apartheid South African constitution.

From the 1930s, access to information was the key to the politics of asbestos. The industry in the US, the UK and elsewhere captured and re-framed the knowledge of risk through a variety of techniques. It suppressed or hid evidence of hazards, initially among miners and factory workers and later among those with bystander exposure.⁵⁹ It manufactured doubt by falsely claiming there was insufficient data to justify a ban. As that defence fell apart during the 1960s, the asbestos corporations secretly paid leading scientists to corrupt the legitimate research of their colleagues, thereby frustrating more stringent regulation of asbestos mining and manufacture.⁶⁰ Widespread opposition to apartheid and the deplorable work and living conditions in the Northern Cape made South Africa’s asbestos mines a point of fragility for the global industry. Mills were often located in the centre of small towns like Prieska, and residents were contracting asbestosis, a disease usually confined to filthy workplaces, from environmental exposure. Those towns were isolated and there were very few white miners and no trade union presence. There was minimal state regulation and therefore no data until 1954, when the asbestos mines were declared Registered Mines under Section 29 of the Silicosis Act.⁶¹

Asbestos had been mined in South Africa for almost forty years before any research was carried out into asbestos disease.⁶² In 1930, Dr George Slade, who worked as a medical officer at a British owned mine in the Transvaal, completed what was probably the first study of respiratory disease in asbestos miners.⁶³ Slade’s research showed that the mills were unsafe and there was widespread disease. His report brought no legislative response, but it did bring his career as a mine medical officer to an abrupt end.⁶⁴

In 1954, after he was appointed to a fellowship at the Pneumoconiosis Research Unit (PRU), J.C. Wagner set out to establish whether asbestos mining in South Africa caused asbestosis and lung cancer. The project was novel, but Wagner received little institutional encouragement. Wagner soon discovered a large number of cases of mesothelioma in the Northern Cape and identified an association between the disease and asbestos exposure. In contrast to previous studies, he found that even slight exposure could produce tumours many years later, and that the risk extended beyond the workplace. Part of the significance of Wagner’s discovery was the fact that it broke down the barrier usually separating occupational from environmental injury.

When Wagner visited Europe on sabbatical in 1956, he was ordered by the Director of the PRU, A.J. Orenstein, not to mention the discovery of mesothelioma and its possible association with asbestos. Wagner ignored that instruction and discussed the matter with directors of the two major asbestos companies in Britain: T&N and Cape Plc. The directors dismissed Wagner’s research as ‘worthless’ and suggested he follow a different line of inquiry. After he presented a paper on his findings at the international conference on Pneumoconiosis in Johannesburg in 1959, the Department of Mines commissioned the PRU to coordinate a survey of the Northern Cape.⁶⁵ The project was funded by the asbestos industry and supported by a small grant from the South African Cancer Association.⁶⁶ There was a great deal at stake for the British owned companies. If a comprehensive survey of the Northern Cape had been completed in the mid-1960s, the mining of crocidolite could well have ended, sending the global asbestos industry into a decline from which it may never have recovered.

The PRU survey of just over 2000 residents from the towns of Prieska, Koegas, Kuruman and Penge was carried out between November 1960 and February 1962. Because of the rarity of mesothelioma and the small sample size, the PRU did not expect to find any new cases.⁶⁷ By February 1961, the initial returns showed catastrophic living and work conditions in Prieska. The X-rays of adult residents, only a minority of whom had worked in the mines, identified a hazard for every person who lived in those towns. The study also revealed several new cases of mesothelioma, a remarkable result in such a small population. The authors of the report reached two conclusions: firstly, that people who lived or had lived in those towns were ‘in danger of contracting asbestosis even though they have had no industrial exposure to asbestos dust inhalation’. Secondly ‘there is an alarmingly high number of cases of mesothelioma with evidence that the condition is associated with an exposure to asbestos dust which need not be industrial’.⁶⁸

The Northern Cape Asbestos Producers Advisory Committee attacked the survey and all funding by industry and the South African Cancer Association ended immediately.⁶⁹ The new PRU Director, Dr L.G. Walters, noted that three factors had brought the survey to an end: the reaction by certain members of parliament and a subsequent scare campaign in the press, the asbestos companies’ concern about being able to recruit labour and their refusal to support further research.⁷⁰ The final report, which was completed in 1964, runs to sixty pages and contains just twelve lines on mesothelioma.⁷¹ The early data and allied results were suppressed and subsequent researchers at the PRU were unaware of their existence.⁷² It was as if those reports had never existed. Over the next fifteen years, asbestos production continued to rise, but no further research was done into the impact of asbestos on human health. There was no disclosure regarding the risk to mining communities, to consumers or to the general public. South Africa continued to mine and export crocidolite until 1996. That suppression bought the asbestos mines thirty years’ grace. It may well have done the same for the gold mines.

In March 2003, Cape Plc. and Gencor reached out of court settlements in London and Johannesburg with plaintiffs seeking compensation for cancers caused by asbestos mining.⁷³ The Gencor case was the first time that South African miners had won a class action for workplace injuries. The London plaintiffs had breached the ‘corporate veil’—in other words, pierced that aspect of limited liability law which gives parent companies legal protection against the liabilities of subsidiaries. Cape’s lawyers had assumed that this veil would protect the company from its South African litigants. Documents which spilled into the public domain revealed that the South African Departments of Mines and Health had been aware for decades of the hazardous conditions on the mines but did nothing.⁷⁴ In effect, the degree of collusion between state agencies and the industry was so extreme that it threw into question the integrity of the regulatory system itself. The day after the R450 million Gencor Agreement was signed, the civil rights lawyer Richard Spoor announced he would turn his attention to the plight of gold miners suffering from silicosis.

The Gold Miners’ Class Action

In 2013, Abrahams Kiewitz Attorneys, Richard Spoor Attorneys and the Legal Resources Centre separately commenced class actions against the gold mining companies on behalf of miners suffering from silicosis and/or tuberculosis. Three years later, and against strenuous opposition from the mining companies, the South African High Court approved the request to amalgamate the three separate actions into one. Importantly, the court also amended the common law regarding what is called ‘the transmissibility of damages’ so it was in line with South Africa’s post-apartheid constitution, and in particular its clauses regarding human rights. In brief, the changes allow for the wives and other dependents of miners taking part in the class action to inherit damages awards in case the men die before the court process is completed.⁷⁵ This change is particularly important in terms of gender justice. The burden of care for men suffering from occupational lung disease is usually provided at home by wives and daughters. It is they who lift, carry and bathe the disabled mineworkers, monitor their medications, accompany them to appointments and stay up at night to attend to their needs. By the same token, the intensity of care work means that they are not able to take on income-generating activities or participate in education. Any damages awarded post-mortem to the men they helped care for indirectly compensates them for the unpaid work they performed.⁷⁶ In May 2018, the parties to the dispute reached an historic agreement to settle the Silicosis and Tuberculosis Class Actions. The settlement was confirmed by the South African High Court in July 2019.⁷⁷

By the time it was settled, the scope and magnitude of the amalgamated class action and the range of legal representatives involved had been unprecedented in South Africa. Indeed, the case is rated as one of the most complex multi-party class action settlements in the world.⁷⁸ The defendant mining companies represent almost the entire gold mining industry in South Africa.⁷⁹ The settlement negotiations involved companies with different approaches, needs, interests, financial capacities, risk profiles and cultures, who deal with unique geological circumstances. The companies are also competitors and potential adversaries in future litigation. The potential number of those meeting the disease eligibility requirement of the claim may range from seventeen thousand to half a million. The number of dependant applicants is expected to be in the tens of thousands.⁸⁰

Besides its scope and complexity, the settlement agreement is highly innovative in terms of the remedies it offers to miners and their dependents. The use of class action, rather than the pursuit of individual claims to compensation, the mineworkers’ legal team forcefully argued, was the only realistic avenue available to the workers in their search for justice. All the mining companies, they noted, were accused of having committed the same wrongs; it was neither economical, nor in the case of any individual mineworker affordable, to bring such evidence to trial action were he to sue in his individual capacity. Neither was it a good use of the country’s court system. As Richard Spoor put it:

[T]he majority of the class members are impoverished rural people, many of whom are in poor health, who are spread across the sub-continent and who have very limited access to the civil justice system. The very large proportion of class members who were migrant workers from Mozambique, Malawi, Lesotho and Swaziland [eSwatini], probably have no access to the South African justice system at all. … Litigating on behalf of claimants located in remote rural areas and in neighbouring countries is particularly difficult. … In many instances letters and notices must be delivered by hand, travel to and from these remote areas is slow, expensive and often unreliable. There are few if any local correspondent attorneys to rely upon and either the attorney must travel to see the client or vice versa. A simple matter such as arranging for a medical examination can take days to organize and involve claimants travelling hundreds of kilometres.⁸¹

The mining companies did not dispute the miners’ difficult circumstances, but strenuously opposed amalgamating their claims for compensation into class action. The mineworkers through their counsel complained about being stonewalled without relent by the mining companies from the beginning and all the way through the litigation. The companies, they alleged, placed every possible obstacle to having the matter adjudicated and fought the application as vigorously and as aggressively as they possibly could. They spared neither effort nor resources in doing so. They have done this, even though they could not dispute the fact that, should the court refuse the class action to go ahead, and the mineworkers be forced to bring individual actions, the result without doubt would sterilise most of the individual claims.⁸² In approving the 2018 settlement, Justices of the South African High Court singled out the potential costs and time of adjudicating individual claims as one of the key reasons for their decision. The alternative, they noted, involved hundreds or thousands of cases being brought, potentially in parallel to one another, each involving complex issues of prescription, negligence, causation and apportionment of damages. The costs and time associated with defending such cases would be astronomical. During the decade that the mammoth litigation would take, moreover, many of the claimants would die, and some of the mining companies become insolvent.⁸³

The mechanisms for proving injury and receiving compensation constitute the other major innovation of the historic settlement. There is a gulf between the ‘relaxed proof requirements for eligibility for compensation’ it established and those which would be required under existing law if the cases went to trial.⁸⁴ For instance, the dependants of silicosis sufferers are not required to prove that silicosis is the cause of death of the breadwinner. It suffices if the person was certified to be suffering from Silicosis Class 2 or Class 3 before their death. Another innovation concerns tuberculosis claimants, who need not establish that they contracted tuberculosis as a result of exposure to dust, but only that they have contracted tuberculosis and have the requisite employment history on the gold mines. A fair proportion of these persons who will be eligible to receive a benefit under the settlement, the court noted, would not have been able to prove their claims and would not have been able to recover anything at the conclusion of trials under the existing provisions.⁸⁵ In addition, the settling companies and the class representatives agreed to adopt a wider definition of risk work so that a greater number of claimants may be eligible than was catered for during the certification proceedings. Previously risk work was restricted to underground mineworkers and their dependants; the new definition also includes certain surface work where there is potential exposure to excessive silica dust.⁸⁶ Finally, rather than placing obstacles in the way of those seeking compensation, the settlement fund provides for the tracing and tracking of class members, free advice, registration, medical examinations and where necessary travel. In all, the settlement has toppled some of the key pillars upon which employment in the South African gold mining industry was built. Its provisions not only represent a dramatic change in the legal rights of mine workers and their families throughout the region but have considerable symbolic importance as part of South Africa’s transformation from minority rule. Securing the rights of migrant workers has been a highly significant part of that transformation.⁸⁷